Willis v. Bernini

77 Arizona Cases Digest 4

515 P.3d 142

Aranzi Rae Jon WILLIS, Petitioner,

v.Hon. Deborah BERNINI, Judge of the Superior Court of the State of Arizona, IN AND FOR the COUNTY OF PIMA, Respondent Judge,State of Arizona, Real Party in Interest.

No. CR-21-0258-PR

Supreme Court of Arizona.

Filed August 18, 2022

D. Jesse Smith (argued), Law Office of D. Jesse Smith, Tucson, Attorney for Aranzi Rae Jon Willis

Laura Conover, Pima County Attorney, Myles A. Braccio (argued), Criminal Appeals Section Chief, Maile Belongie, Deputy County Attorney, Tucson, Attorneys for State of Arizona

Carol Lamoureux (argued), Joshua F. Hamilton, Law Office of Hernandez & Hamilton, PC, Tucson, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice

Rachel Mitchell, Interim Maricopa County Attorney, Krista Wood, Acting Appeals Bureau Chief, Phoenix, Attorneys for Amicus Curiae Maricopa County Attorney's Office

JUSTICE MONTGOMERY authored the opinion of the Court, in which CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES BOLICK, LOPEZ, BEENE, and KING joined.

JUSTICE MONTGOMERY, opinion of the Court:

¶1 In this case, we clarify the due process rights of a person under investigation before a grand jury, the duties of a prosecutor to present evidence for the grand jury's consideration in determining whether to issue an indictment, and the standard for what constitutes "clearly exculpatory" evidence, especially with regard to a justification defense.

¶2 We hold that the Arizona Constitution guarantees a person under grand jury investigation a due process right to a fair and impartial presentation of clearly exculpatory evidence and that a prosecutor has a duty, even in the absence of a specific request, to present such evidence to a grand jury. We also affirm that evidence is clearly exculpatory if it would deter a grand jury from finding probable cause to issue an indictment as initially stated in State v. Superior Court (Mauro ), 139 Ariz. 422, 425, 678 P.2d 1386, 1389 (1984). Finally, we hold that clearly exculpatory evidence includes evidence relevant to a justification defense that would deter a finding of probable cause.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶3 On March 15, 2020, K.K. was shot in the head and torso in the parking lot of Eden Adult Cabaret ("Eden"). Despite his injuries, K.K. survived and told police he had argued with a man who "took the argument serious [sic] and flashed a gun." No guns were found at the scene, but police did recover .45 caliber and 9mm cartridge casings and a locked iPhone belonging to Jesse Portillo.

¶4 Security video showed Portillo and Anthony Lujan Terrazas arriving at Eden in Terrazas’ car around 2:30 a.m. Video later showed Portillo, Terrazas, and another male walking to Eden's parking lot at 3:49 a.m. There were no security cameras in the parking lot itself, though, to show what occurred. K.K. was shot around 4:00 a.m. Video then showed Terrazas’ car leaving the parking lot at 4:04 a.m.

¶5 At approximately 7:30 p.m. the same day, Terrazas’ sister messaged Aranzi Rae Jon Willis, a friend of Terrazas and Portillo, about her brother "getting into a fight with a white male." She asked Willis "if they caught a body." Willis replied that he "heard the person scream after he ... hit him." Willis instructed Terrazas’ sister to delete the message referencing "hit" and suggested painting Terrazas’ car in case it had been seen.

¶6 The same day of the shooting, Willis sold a 9mm handgun, which police later recovered along with a second 9mm handgun. The two guns’ barrels and slide assemblies had been switched. The Tucson Police Department ("TPD") Crime Lab determined that the barrel and slide assembly originally belonging to Willis’ gun fired the shell casings found at the scene of the shooting.

¶7 The Pima County Attorney sought a grand jury indictment of Willis and Portillo for attempted second degree murder, aggravated assault with a deadly weapon, aggravated assault causing serious physical injury, and unlawful discharge of a firearm in or into the city limits. At the grand jury proceeding, a TPD detective testified about the investigation into the shooting. The detective informed the grand jurors about the security video footage, the content of messages between Terrazas’ sister and Willis, and that

[a]cquaintances of Portillo were interviewed. One witness said Portillo admitted to being at Eden with a male, and a male flicked a cigarette on him. The male started the fight, and the male was on top of him, so he had to shoot the male. He then fired at the ground. Another witness said Portillo claimed a friend shot the male. The witness also said that Portillo had a faded black pistol.

¶8 The "witness" referenced in the detective's grand jury testimony was Portillo's girlfriend, who also told police that Portillo said, "the older white male tried to grab [Portillo's] gun" before Portillo's "cousin or friend reacted and gunshots were fired." After those gunshots, the girlfriend said, Portillo "shot the male and he then shot the ground." The State did not present information to the grand jury about the identity of the witness or about the victim's attempt to grab Portillo's gun. Later in the presentation of evidence, a grand juror asked the detective if Portillo said "he made the first shot in self-defense"; the detective responded that he—the detective—"didn't say that." The following exchange occurred:

[JUROR]: I thought you said that Portillo claimed it was in self defense that he shot back or something.

GRAND JURY FOREPERSON: They said the guy held him down to the ground.

[DETECTIVE]: Right. He said he held him down on the ground and then he shot him. I didn't use the words you are using.

¶9 The grand jury indicted Willis for attempted second degree murder by a 12–3 vote; aggravated assault with a deadly weapon by an 11–4 vote; aggravated assault causing serious physical injury by an 11–4 vote; and unlawful discharge of a firearm by an 11–4 vote. See Ariz. R. Crim. P. 12.6(a) ("An indictment requires the concurrence of at least 9 grand jurors, regardless of the number of grand jurors hearing a matter."); A.R.S. § 21-404 ("The grand jury shall consist of at least twelve but not more than sixteen persons, nine of whom constitute a quorum for all proceedings before it.").

¶10 Willis subsequently filed a motion seeking remand to the grand jury for a redetermination of probable cause pursuant to Arizona Rule of Criminal Procedure 12.9 ("12.9 Motion"). The court denied his motion, reasoning that the testifying detective "did not present false or misleading testimony nor exclude anything exculpatory" before the grand jury.

¶11 Willis sought special action review, but the court of appeals declined to accept jurisdiction. We granted review to address conflicting definitions in our caselaw of "clearly exculpatory evidence" and to address whether the trial court erred in denying Willis’ 12.9 Motion, each a recurring issue of statewide importance. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution.

II. DISCUSSION

¶12 Willis argues that the State withheld clearly exculpatory evidence of a justification defense, which it was obligated to present even though Willis made no specific request for the State to do so. The State contends that it complied with its obligations and did not withhold any clearly exculpatory evidence. Additionally, in its supplemental brief, the State asserts that there is no constitutional due process right to a fair and impartial presentation of the evidence before a grand jury.

¶13 Normally, arguments raised for the first time in supplemental briefing are waived. Estate of DeSela v. Prescott Unified Sch. Dist. No. 1 , 226 Ariz. 387, 389 ¶ 8, 249 P.3d 767, 769 (2011). But where questions before us "are of great public importance or likely to recur," we have made exceptions. Id. (quoting In re Leon G. , 200 Ariz. 298, 301 ¶ 8, 26 P.3d 481, 484 (2001) ). Given the function of grand juries in Arizona's criminal justice system, the fundamental importance of procedural protections in grand jury proceedings, and that Willis fully briefed the issue, we exercise our discretion to address the State's due process argument.

¶14 We review matters of constitutional and statutory interpretation de novo. Johnson Utils., L.L.C. v. Ariz. Corp. Comm'n , 249 Ariz. 215, 219 ¶ 11, 468 P.3d 1176, 1180 (2020). We review a denial of a 12.9 Motion for an abuse of discretion. See Maretick v. Jarrett , 204 Ariz. 194, 195 ¶ 1, 62 P.3d 120, 121 (2003). "An error of law constitutes an abuse of discretion." State v. Lietzau , 248 Ariz. 576, 579 ¶ 8, 463 P.3d 200, 203 (2020).

A. Right to a Fair and Impartial Presentation

¶15 The State, relying on United States v. Williams , 504 U.S. 36, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992), argues that decades of Arizona appellate decisions "requiring the prosecutor to present the evidence in a ‘fair and impartial manner,’ and present all ‘clearly exculpatory’ evidence ... were born out of a misinterpretation of the federal due process clause." The State further asserts that "[t]hese standards are not required by the federal or state constitutions." Misplaced reliance on Williams and the absence of any federal due process requirement aside, the State misconstrues Arizona's Constitution.

¶16 In Williams , the Supreme Court addressed a procedural rule promulgated by the Tenth Circuit Court of Appeals requiring federal prosecutors to inform a grand jury of "substantial exculpatory evidence." 504 U.S. at 45, 112 S.Ct. 1735.¹ The Court was not asked to consider the presentation of evidence to a grand jury premised on the Fifth Amendment and the Court did not elect to do so. Id. ("Respondent does not contend that the Fifth Amendment itself obliges the prosecutor to disclose substantial exculpatory evidence in his possession to the grand jury."). Instead, the Court considered whether the "Tenth Circuit's disclosure rule is supported by the courts’ ‘supervisory...