State of Arizona v. Kenneth Dale Meinhardt ( 2003 )

SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-02-0300-PR
)
) Court of Appeals
Appellee,) Division One
) Nos. 1 CA-CR 01-0448
) 1 CA-CR 01-0468
) (CONSOLIDATED)
v. )
) Maricopa County
) Superior Court
) No. CR 2000-010373
KENNETH DALE MEINHARDT, )
)
) MEMORANDUM DECISION
) (Not for Publication
Appellant.) Ariz. R. Sup. Ct. 111)
)
Appeal from the Superior Court for Maricopa County
The Honorable Edward O. Burke, Judge
The Honorable Crane McClennen, Judge
AFFIRMED
Court of Appeals, Division One
Memorandum Decision, filed July 25, 2002
REVERSED AND REMANDED
JANET A. NAPOLITANO, FORMER ARIZONA ATTORNEY GENERAL Phoenix
TERRY GODDARD, ARIZONA ATTORNEY GENERAL
by Randall M. Howe, Chief Counsel,
Criminal Appeals Section
and Consuelo M. Ohanesian, Assistant Attorney General
Attorneys for Appellee
JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
by Louise Stark, Deputy Public Defender
Attorneys for Appellant
B E R C H, Justice
¶1 The State of Arizona seeks review of the court of
appeals’ memorandum decision reversing two of Defendant Kenneth
Meinhardt’s four convictions for armed robbery. The State asserts
that the court of appeals erred in finding that the trial judge
abused his discretion by precluding two alibi witnesses from
testifying as a sanction for Defendant’s late disclosure of his
alibi defense. A divided panel of the court of appeals reversed
the two convictions on the ground that the trial judge failed to
make a finding that Defendant acted in bad faith and failed to
consider alternative sanctions that would have had less effect on
Defendant’s case. State v. Meinhardt, 1 CA-CR 01-0448, 1 CA-CR 01-
0468, ¶¶ 11-13 (Ariz. App. July 25, 2002) (consolidated) (mem.
decision). We affirm the trial court’s imposition of sanctions and
reverse the court of appeals’ decision on this issue.
FACTS
¶2 Defendant Meinhardt was charged with five counts of armed
robbery. The first two crimes occurred in late 1999 and the next
three occurred in June, 2000. The trial court severed counts 1 and
2 from counts 3, 4, and 5, and, on the State’s motion, dismissed
count 4. Defendant was found guilty of counts 3 and 5 at his first
trial.
¶3 Defendant’s first trial was scheduled to start on January
16, 2001. On January 11, just five days before trial was to begin,
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Defendant requested a continuance, which the court granted. On
January 19, three days after the original trial date and just four
days before the continued trial was to begin, Defendant disclosed
that he wished to present an alibi defense supported by two
witnesses, his mother and her employer.1 He avowed that his mother
would testify that he was with her the night the armed robbery
alleged in count 3 was committed. She was to testify that she had
been having trouble with the car she used for her bank deposit
carrier route that week, so Defendant drove the car in case it
broke down. Her employer was to testify that he knew of the
mother’s car troubles and to verify that she was working during the
hours of the robbery. The employer could not verify, however,
whether Defendant was with his mother at the time the robbery took
place.
¶4 The State moved to preclude the witnesses from testifying
based on the late disclosure of the defense and witnesses. The
State argued that Defendant failed to comply with Rule 15.2 of the
Arizona Rules of Criminal Procedure, which at that time required
that defendants give notice of defenses and witnesses within twenty
days of arraignment, which would have required their disclosure by
July 20, 2000. The State also contended that it would suffer
prejudice because of the late disclosure, as the prosecutor would
1
Defendant had a third alibi witness for count 4, but that
count was dismissed, rendering the witness unnecessary.
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not have time to conduct a sufficient rebuttal investigation. The
State sought sanctions pursuant to Rule 15.7(a) of the Arizona
Rules of Criminal Procedure, which lists the preclusion of evidence
and witnesses as potential sanctions for the violation of Rule
15.2.
¶5 During the January 23 hearing on the motion, the trial
judge questioned Defendant’s counsel about the late disclosure.
Defense counsel responded that the mother’s advanced age and her
confusion regarding the five dates on which the robberies occurred
caused her not to realize that Defendant had been with her when one
of the robberies took place. When asked why Defendant never
mentioned this potential alibi after sitting in jail for six or
seven months with little else to ponder,2 defense counsel could not
explain.
¶6 Recognizing that the law did not permit him “to preclude
witnesses if there’s a less severe sanction available,” the trial
judge then questioned whether alternative sanctions would suffice
to remedy the extremely delayed disclosure. The only alternative
suggested by the defense was a continuance, but the prosecutor
protested that another continuance would “‘penalize conscientious
practitioners’ and allow[] the defendant to continue the case once
again.” Citing Defendant’s complete failure to timely disclose his
2
Defendant was arrested and incarcerated at the end of
June, 2000. He remained in jail until his trial in January, 2001.
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alibi defense and witnesses to either his counsel or the court, and
noting that, had the trial commenced on January 16 when it was
originally scheduled, the witnesses would not have been presented
because they had not been discovered, the trial judge granted the
State’s motion to preclude the witnesses. He did not, however,
preclude Defendant from testifying to the defense.
DISCUSSION
A. Trial Issues
¶7 We review the trial judge’s decision to preclude
witnesses from testifying for abuse of discretion. See State v.
Towery, 186 Ariz. 168, 186, 920 P.2d 290, 308 (1996). We also
assume that trial judges know and apply the law in reaching their
determinations. E.g., State v. Lee, 189 Ariz. 608, 616, 944 P.2d
1222, 1230 (1997) (quoting Walton v. Arizona, 497 U.S. 639, 653
(1990), and citing State v. Stokley, 182 Ariz. 505, 519, 898 P.2d
454, 468 (1995)).
¶8 This court has set forth four factors that trial judges
must consider before precluding witness testimony under Rule
15.7(a)(4) for a violation of the disclosure rules: 1) how vital
the testimony is to the case, 2) any surprise and prejudice to the
opposing party, 3) whether bad faith or willfulness motivated the
violation, and 4) any other circumstances relevant to the issue.
See State v. Smith (Joseph Clarence, Jr.), 123 Ariz. 243, 252, 599
P.2d 199, 208 (1979) (footnotes omitted).
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¶9 In this case, the record reflects that the trial judge
conscientiously considered all these factors. The testimony was
important to Defendant’s case. If believed, the mother’s testimony
would have established an alibi defense for count 3.3 Moreover,
the eyewitness to count 3 was certain that the perpetrator of that
crime was the same person who committed the armed robbery detailed
in count 5. Thus any doubt cast upon Defendant’s involvement in
the robbery charged in count 3 would also have cast doubt upon his
involvement in the robbery charged in count 5.
¶10 The trial judge also considered the surprise to the State
occasioned by the late disclosure of the alibi defense and two
witnesses. The State had been preparing its case against Defendant
for more than six months, unaware that Defendant contemplated an
alibi defense. At the very least, the State would have required a
continuance to prepare to rebut the new evidence. Defendant’s
offer to make the alibi witnesses immediately available for the
State to interview did not alleviate the problem. The prosecutor
was unable to interview them at the time proposed by Defendant’s
counsel, which was the day before the trial was set to start.
Moreover, the State asserted that it would need to do additional
investigation to obtain rebuttal evidence and witnesses. Defendant
would also have gained additional time to prepare through his
3
As the trial court correctly observed, the employer’s
testimony would not have shed light on Defendant’s whereabouts at
the time the robbery took place.
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failure to follow the rules.
¶11 As to the third factor, bad faith or willfulness, the
court of appeals determined that, because the trial judge did not
specifically find that Defendant acted in bad faith, he could not
preclude the witnesses from testifying. In its memorandum
decision, the court stated, “it is clear the [trial] court deemed
defendant negligent in his failure to disclose; however, the court
never found defendant guilty of any bad faith.” Meinhardt, 1 CA-CR
01-0448, 1 CA-CR 01-0468, slip op. at ¶ 11 (emphasis added). Our
review of the record, however, shows that the trial judge found
more than negligent nondisclosures, and he clearly understood and
applied the relevant cases and rules.
¶12 During the hearing on January 23, the trial judge read
and discussed State v. Killean, 185 Ariz. 270, 271, 915 P.2d 1225,
1226 (1996), a case from this court affirming a trial court’s
preclusion of evidence for violation of Rule 15.2. The trial judge
properly read Killean to say that a finding of bad faith is not
necessary if a willful failure to disclose is shown. See id.
Thus, while he did not specifically make a finding of bad faith or
willful failure to disclose, the trial judge understood that these
behaviors served as the predicate to preclusion of witnesses or
evidence. Having then ruled that the witnesses should be
precluded, he implicitly found willful behavior on Defendant’s
part. The record of the hearing bears this out.
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¶13 Moreover, the trial judge observed that in Killean, it
was the defense counsel, not the defendant himself, who was guilty
of the rule violation, leading Justice Zlaket, in dissent, to
observe that if the client had known and approved the violation,
“it may be appropriate to exclude evidence.” Id. at 272, 915 P.2d
at 1227 (Zlaket, J., dissenting). The trial judge even noted
Justice Zlaket’s comment that “[a] similar, but separate, analysis
might be necessary with respect to the defendant if there is any
indication that [the defendant] had a hand in the late disclosure.”
Id.
¶14 The trial judge then analyzed Defendant’s active
participation in the late disclosure at issue before him. He
questioned why, during the six months he sat in jail, Defendant did
not remember his potential alibi sooner.4 Following his
4
The trial judge reasoned as follows:
I’m still concerned with the fact that if Mr.
Meinhardt had been driving Mrs. Meinhardt
around that night, that he would have known
that. And to say, “well, you know, there were
just so many robberies in so much time, it’s
just so hard to pin down the dates,” that
doesn’t make sense to me. It just seems to
me, if someone, like Mr. Meinhardt, were in
his position, facing all these years, he would
sit down and try to figure out exactly what he
was doing each f [sic] those hours where he
was charged with robbing somebody. And if he
was driving his mother night after night for a
week’s time, he would have known this. It
just seems, to me, odd that his mother would
come up and say, “Gee, he was driving me.”
And, suddenly, the light bulb goes off in Mr.
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questioning of Defendant’s lawyer, the judge concluded that
Defendant himself had willfully failed to timely disclose his alibi
defense and witnesses.
¶15 The trial judge also observed this court’s instruction to
impose less intrusive sanctions than the preclusion of witnesses or
evidence if such alternatives are available and adequate to remedy
the disclosure violation. See Smith, 123 Ariz. at 252, 599 P.2d at
208. He determined that preclusion of Defendant’s alibi witnesses
was justified in light of Defendant’s failure to alert his
attorney, the court, or the State of the defense until the eve of
the second trial setting. In so holding, he implicitly concluded
that no lesser sanction would suffice. We note that the judge did
not preclude Defendant from raising the alibi defense, should he
have decided to testify; rather, he precluded the corroborating
Meinhardt’s mind, “Oh, yeah, I was driving
her.” It just doesn’t make sense to me.
Further – well, I’ve heard no explanation
why Mr. Meinhardt didn’t tell you this in this
6 or 7 months that this thing has been going
on, since the charges.
. . . .
So he’s taken into custody on [June]
22nd, and he knows what the charges are.
That’s only 2 weeks after this happened. It
doesn’t explain why he didn’t sit down right
then and say, “Well, gosh, what was I doing 2
weeks ago?”
. . . .
And further, if this trial would have
started on the 16th, a week ago today, and had
finished when everyone thinks it would have,
this would have never come to light.
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witnesses from testifying.
¶16 Imposing sanctions is a discretionary matter and there
are costs to the system and to victims of crime in granting
continuances. See Ariz. Const. art. 2, § 2.1(A)(10). We will not
substitute our discretion in these matters for that of the trial
judge. See State v. Veatch, 132 Ariz. 394, 396, 646 P.2d 279, 281
(1982). Instead, we will review each decision for an abuse of
discretion. See Towery, 186 Ariz. at 186, 920 P.2d at 308. We
find no abuse of discretion in the trial court’s ruling precluding
the witnesses from testifying in support of Defendant’s alibi
defense as a sanction for discovery violations.
B. Sentencing Issues
¶17 Defendant raised two sentencing issues in the court of
appeals. Meinhardt, 1 CA-CR 01-0448, 1 CA-CR 01-0468, slip op. at
¶¶ 14-20. The first issue concerned a discrepancy between the
minute entry and the oral pronouncement of sentence contained in
the transcript of the proceedings. Id. at ¶ 15. The second issue
was whether all four counts should have been designated as
dangerous offenses. Id. at ¶ 18. The court of appeals reversed
Defendant’s convictions on counts 3 and 5 and therefore did not
decide the sentencing issues regarding those counts. Id. at ¶¶ 17,
18. We remand these issues to the court of appeals for
consideration in light of this opinion.
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CONCLUSION
¶18 We reverse the decision of the court of appeals and
reinstate Defendant’s convictions on counts 3 and 5. We remand
this case to the court of appeals for reconsideration of the
sentencing issues relating to counts 3 and 5.
Rebecca White Berch, Justice
CONCURRING:
Charles E. Jones, Chief Justice
Ruth V. McGregor, Vice Chief Justice
Michael D. Ryan, Justice
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