Ceasar v. Hon. campbell/state , 236 Ariz. 142 ( 2014 )


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  •                                    IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    MARCUS DEAN CEASAR, Petitioner,
    v.
    THE HONORABLE JENNIFER CAMPBELL, Judge of the SUPERIOR
    COURT OF THE STATE OF ARIZONA, in and for the County of
    YAVAPAI, Respondent Judge,
    STATE OF ARIZONA, Real Party in Interest.
    No. 1 CA-SA 14-0167
    FILED 10-23-2014
    Petition for Special Action from the Superior Court in Yavapai County
    No. P1300CV201400409
    The Honorable Jennifer B. Campbell, Judge
    JURISDICTION ACCEPTED; RELIEF DENIED
    COUNSEL
    M. Alex Harris, P.C., Prescott
    By M. Alex Harris
    Counsel for Petitioner
    Yavapai County Attorney’s Office, Prescott
    By Dennis M. McGrane
    Counsel for Real Party in Interest
    CEASAR v. CAMPBELL
    Opinion of the Court
    OPINION
    Presiding Judge Lawrence F. Winthrop delivered the opinion of the Court,
    in which Judge John C. Gemmill and Judge Samuel A. Thumma joined.
    W I N T H R O P, Presiding Judge:
    ¶1            Marcus Dean Ceasar (“Petitioner”) has filed a petition for
    special action, challenging the trial court’s ruling granting the State’s
    motion to dismiss a supervening indictment1 and allowing the State to
    proceed on the original indictment against Petitioner. Petitioner maintains
    the supervening indictment necessarily replaced or voided the first
    indictment. For the following reasons, we accept jurisdiction of the special
    action petition but deny relief, concluding the trial court did not err in
    granting the State’s motion to dismiss the supervening indictment.
    JURISDICTION
    ¶2             Special action jurisdiction is available when there is no other
    equally plain, speedy, or adequate remedy by appeal. Ariz. R.P. Spec. Act.
    1(a). As a general rule, a ruling on a challenge to a grand jury’s findings of
    probable cause is not reviewable on direct appeal. State v. Moody, 
    208 Ariz. 424
    , 439-40, ¶ 31, 
    94 P.3d 1119
    , 1134-35 (2004). Additionally, special action
    jurisdiction is appropriately invoked when the issue raised is a purely legal
    1      The word “supervene” means to “follow.” See Merriam Webster’s
    Collegiate Dictionary 1183-84 (10th ed. 1993). In general, the terms
    “supervening indictment” and “superseding indictment” may be used
    interchangeably. See, e.g., State v. Leenhouts, 
    218 Ariz. 346
    , 349, ¶ 13, 
    185 P.3d 132
    , 135 (2008). A supervening indictment refers to an indictment
    issued in the absence of a dismissal of the prior charging document. See
    generally United States v. Rojas-Contreras, 
    474 U.S. 231
    , 237 (1985) (Blackmun,
    J., concurring) (“The term ‘superseding indictment’ refers to a second
    indictment issued in the absence of a dismissal of the first.”); see also Segura
    v. Cunanan, 
    219 Ariz. 228
    , 234, ¶ 22, 
    196 P.3d 831
    , 837 (App. 2008)
    (recognizing that a defendant’s right to a preliminary hearing on a prior
    complaint may be eliminated by a “supervening indictment”). A
    superseding indictment may be returned at any time before a trial on the
    merits of an earlier indictment. United States v. Herbst, 
    565 F.2d 638
    , 643
    (10th Cir. 1977).
    2
    CEASAR v. CAMPBELL
    Opinion of the Court
    question, one of first impression, and one of statewide importance. State v.
    Bernini, 
    230 Ariz. 223
    , 225, ¶ 5, 
    282 P.3d 424
    , 426 (App. 2012); State v. Brown,
    
    210 Ariz. 534
    , 537, ¶ 5, 
    115 P.3d 128
    , 131 (App. 2005).
    ¶3            Both parties urge us to exercise our discretion to accept
    special action jurisdiction to clarify this legal issue of first impression in
    Arizona. We agree that special action jurisdiction is appropriate in this
    case.
    FACTUAL AND PROCEDURAL BACKGROUND
    ¶4            On May 2, 2014, a grand jury issued an indictment charging
    Petitioner with one count each of burglary in the second degree, trafficking
    in stolen property in the first degree, and criminal nuisance.
    ¶5             On August 6, 2014, the State sought a supervening indictment
    on the original three charges and additional charges of misconduct
    involving a weapon, theft of a firearm, and possession or use of drug
    paraphernalia. The grand jury, however, issued an indictment charging
    Petitioner with only one count of criminal nuisance and returned a “no true
    bill” vote on all other charges.
    ¶6            The State moved to dismiss the August 6 indictment. After
    considering oral arguments, the trial court dismissed that indictment,
    allowing the State to proceed on the May 2 indictment. Petitioner then filed
    this petition for special action, challenging dismissal of the subsequent
    indictment and, accordingly, the State’s power to proceed on the original
    indictment.
    ANALYSIS
    ¶7            Petitioner argues the August 6 supervening indictment
    necessarily replaced or voided the May 2 indictment. We disagree and hold
    that a supervening indictment does not automatically replace or void the
    original indictment.
    ¶8             As support for his argument, Petitioner relies on People v.
    Jones, 
    206 A.D.2d 82
     (N.Y. App. Div. 1994). In Jones, the New York Supreme
    Court’s appellate division held in a divided (3-2) opinion that a second
    grand jury’s vote of “no true bill” to a re-presentment of charges contained
    in an earlier indictment nullified the original indictment. 
    Id. at 83, 87
    . The
    Jones court, however, relied on an interpretation of a unique New York
    statutory scheme governing superseding indictments that is not present
    here. See 
    id.
     at 84-87 (citing N.Y. McKinney’s C.P.L. §§ 190.75(3), 200.80,
    3
    CEASAR v. CAMPBELL
    Opinion of the Court
    210.20(1)(h)). Because no such legislative scheme exists in Arizona, we find
    Jones unhelpful. See State v. Hardin, 
    169 Ariz. 440
    , 441-42, 
    819 P.2d 1026
    ,
    1027-28 (App. 1991) (rejecting the State’s reliance on People v. Jacquin, 
    485 N.Y.S.2d 477
     (N.Y. Cnty. Ct. 1985), a case relying on a New York statute not
    present in Arizona).
    ¶9             In holding that a superseding indictment does not
    automatically replace or void an existing indictment, we are guided instead
    by this court’s previous opinion in Hardin, as well as by persuasive federal
    authority. Although we recognize that we are not necessarily bound by
    federal authority, see, e.g., Pool v. Superior Court ex rel. Pima Cnty., 
    139 Ariz. 98
    , 108, 
    677 P.2d 261
    , 271 (1984), we nevertheless find such authority helpful
    in this case. See generally State v. Coconino Cnty. Superior Court (Mauro), 
    139 Ariz. 422
    , 
    678 P.2d 1386
     (1984) (recognizing a defendant’s citation to
    persuasive federal authorities); State v. Mangum, 
    214 Ariz. 165
    , 171-72, ¶ 24,
    
    150 P.3d 252
    , 258-59 (App. 2007) (recognizing that interpretations of federal
    statutes by federal courts are persuasive authority when Arizona courts
    interpret similar state statutes (citing cases)).
    ¶10            In Hardin, the defendant was involved in a high-speed chase
    that ended with his vehicle crashing into the rear of a police vehicle. 169
    Ariz. at 441, 819 P.2d at 1027. He was charged with several felony offenses,
    and also received a citation requiring him to appear before the city court on
    a charge of misdemeanor DUI. Id. Before the defendant appeared in city
    court, however, a grand jury issued a supervening indictment, charging
    him with nine offenses, including two felony counts of DUI associated with
    the incident.
    2 Hardin, 169
     Ariz. at 441, 819 P.2d at 1027. Before trial was
    held in superior court on the charges present in the supervening
    indictment, the defendant pled guilty in city court to misdemeanor DUI,
    and then filed a motion in superior court to dismiss the felony DUI counts
    on grounds of double jeopardy. Id. The superior court granted the motion,
    and the State appealed. Id. This court affirmed, reasoning that the
    supervening indictment in superior court for felony DUI did not
    automatically oust the city court of jurisdiction to proceed on the previous
    misdemeanor citation for the same DUI offense. Id. at 441-42, 819 P.2d at
    1027-28. Concluding the State and city must be considered a single entity
    2       “Arizona law allows a prosecuting attorney to proceed with felony
    charges by way of an indictment, which reflects a grand jury’s
    determination that probable cause exists to believe the defendant has
    committed the charged offense, or by information.” State v. Gomez, 
    212 Ariz. 55
    , 59-60, ¶ 25, 
    127 P.3d 873
    , 877-78 (2006) (citing Ariz. Const. art. 2,
    § 30; State v. Bojorquez, 
    111 Ariz. 549
    , 553, 
    535 P.2d 6
    , 10 (1975)).
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    CEASAR v. CAMPBELL
    Opinion of the Court
    in the context presented, this court explained the State could have avoided
    the unintended result of having two open cases by securing the dismissal
    of the city court charges. Id. at 442-43, 819 P.2d at 1028-29. Consequently,
    in Hardin, this court treated the supervening indictment as coexisting with,
    and not necessarily replacing, the previous charges.
    ¶11            This court’s holding in Hardin comports with the federal
    courts’ treatment of superseding indictments. As the First Circuit Court of
    Appeals has noted, “It is clear that the grand jury’s return of a superseding
    indictment does not void the original indictment.” United States v. Vavlitis,
    
    9 F.3d 206
    , 209 (1st Cir. 1993) (citing United States v. Friedman, 
    649 F.2d 199
    ,
    202 (3d Cir. 1981); United States v. Holm, 
    550 F.2d 568
    , 569 (9th Cir.), cert.
    denied, 
    434 U.S. 856
     (1977)). Although a defendant may rely on the Double
    Jeopardy Clause3 to prevent reprosecution following an acquittal or
    conviction on a superseding indictment, the defendant “may not rely on the
    notion that a superseding indictment instantaneously nullifies the original
    indictment.” Vavlitis, 
    9 F.3d at
    209 (citing United States v. Bowen, 
    946 F.2d 734
    , 736 (10th Cir. 1991) (finding “no authority which supports . . . that a
    superseding indictment zaps an earlier indictment to the end that the earlier
    indictment somehow vanishes into thin air”)); see also United States v. Cerilli,
    
    558 F.2d 697
    , 700 n.3 (3d Cir. 1977) (“As we understand it, there are two
    pending indictments against the defendants, and the government may
    select one of them with which to proceed to trial.”).
    ¶12           We agree with the reasoning of the federal appellate courts.
    An indictment issued by a prior grand jury is not automatically nullified or
    voided by an indictment issued by a subsequent grand jury. Instead, each
    indictment will generally remain valid and in effect until one is dismissed,
    see Ariz. R. Crim. P. 16.6, they are consolidated by court order, see Ariz. R.
    Crim. P. 13.3(c), or a jury is impanelled for prosecution as to one, which
    would invoke the constitutional prohibition on double jeopardy as to the
    other. See Vavlitis, 
    9 F.3d at 209-10
    . Both indictments in this case remained
    3       See U.S. Const. amend. V; see also Ariz. Const. art. 2, § 10. This court
    ordinarily interprets our state’s constitutional prohibition against double
    jeopardy in conformity with federal interpretations of the same clause in
    the federal constitution. See State v. Eagle, 
    196 Ariz. 188
    , 190, ¶ 5, 
    994 P.2d 395
    , 397 (2000) (recognizing that “the two clauses have been held to grant
    the same protection to criminal defendants” (citations omitted)); but see
    Pool, 
    139 Ariz. at 108-09
    , 
    677 P.2d at 271-72
     (recognizing the general rule but
    declining to rely on the federal interpretation in light of a mistrial caused
    by intentional prosecutorial misconduct resulting in prejudice to the
    defendant).
    5
    CEASAR v. CAMPBELL
    Opinion of the Court
    valid until the trial court granted the State’s motion to dismiss the
    supervening indictment. See 
    id. at 209
    .
    ¶13            Further, the record contains no evidence of prosecutorial
    vindictiveness or other impropriety on the part of the State, see generally
    Herbst, 
    565 F.2d at 643
    , and nothing indicates Petitioner has been denied a
    substantial procedural right. See Ariz. R. Crim. P. 12.9(a). Under the
    circumstances presented here, we find no error in the trial court’s ruling
    granting the State’s motion to dismiss the second indictment and allowing
    the State to proceed on the first indictment.
    CONCLUSION
    ¶14            For the above stated reasons, we conclude the trial court did
    not err in granting the State’s motion to dismiss the supervening indictment
    and allowing the State to proceed on the original indictment against
    Petitioner. We therefore accept jurisdiction of the special action petition,
    but deny relief.
    :gsh
    6