State v. Dann ( 2022 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
BENJAMIN CLARK DANN, Appellant.
No. 1 CA-CR 21-0191
FILED 6-21-2022
Appeal from the Superior Court in Mohave County
Nos. S8015CR201301102
S8015CR201301127
S8015CR202000065
The Honorable Derek C. Carlisle, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Tucson
By Amy Pignatella Cain
Counsel for Appellee
Mohave County Legal Advocate’s Office, Kingman
By Jill L. Evans
Counsel for Appellant
STATE v. DANN
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Randall M. Howe and Judge James B. Morse Jr. joined.
C A M P B E L L, Judge:
¶1 Benjamin Dann appeals his conviction and sentence for first-
degree murder. For the following reasons, we affirm.
BACKGROUND1
¶2 Responding to a report of a “possible deceased subject” lying
in the desert, law enforcement officers located and recovered a body. Given
its substantial decomposition, the medical examiner performing the
autopsy concluded that the victim died at least a week before being
discovered. The medical examiner also determined that the victim died as
a result of “multiple blunt force injuries,” having been repeatedly struck
with an oval-shaped metal object causing skull fractures, cheekbone
fractures, and jawbone fractures.
¶3 The police used a database to identify the victim through his
tattoos, and they then notified the victim’s family of his death and that law
enforcement suspected foul play. The officers did not disclose the manner
of the victim’s death, however, believing that withholding the information
may prove useful in determining which individuals had actual knowledge
of the victim’s murder.
¶4 Approximately a week after the victim’s body was
discovered, Dann contacted the police, seeking “to clear his name.” During
his initial interview with law enforcement officers, Dann denied any
involvement with the victim’s death and named several other people who
may have wanted to kill him.
¶5 On the heels of the Dann interview, a detective interviewed a
teenager (the minor witness) who reportedly had some information about
the victim’s death. The minor witness knew both the victim and Dann, as
well as Dann’s friend, Alfred Talavera. She recounted an evening a few
1 We view the facts in the light most favorable to sustaining the
verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).
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weeks before the victim’s body was discovered ―when Dann and Talavera
drove up to her mother’s house in a green truck and Dann asked for
permission to wash his hands. He was allowed to wash his hands at an
outside hose, and the minor witness accompanied him, holding a flashlight.
Although it was dark, the flashlight illuminated Dann’s hands, and the
minor witness saw him wash off “a dark substance” that “looked like
blood.” The minor witness also reported that Dann told her that he and
Talavera had seen the victim walking that evening and offered him a ride.
Dann stated that after the victim got inside the green truck, he and Talavera
bludgeoned the victim to death with a hammer and then disposed of the
weapon in Talavera’s mother’s burn pit.
¶6 Given the minor witness’s description of a murder weapon
consistent with the undisclosed autopsy results, the detective focused on
Dann and Talavera as likely suspects. Law enforcement officers drafted a
search warrant predicated on the information relayed by the minor witness,
encompassing the minor witness’s mother’s home, Talavera’s mother’s
green truck, and Talavera’s mother’s house.
¶7 After law enforcement officers executed the search warrant,
the detective conducted a second interview with Dann. During that
conversation, Dann expressed interest in the seizure of the green truck. He
told the detective that he had driven the truck and analysts probably would
find his DNA inside. He adamantly denied, however, that the victim’s DNA
would be found inside the vehicle.
¶8 Subsequent testing of the various items seized pursuant to the
search warrant revealed no physical evidence connected to the victim.
Without physical evidence to substantiate the minor witness’s account, the
victim’s murder case “went cold” for nearly two years.
¶9 Faced with no new leads, a detective and sergeant eventually
decided to create a case file “filled . . . with different types of miscellaneous
paperwork” and “present” that file to Dann with the suggestion that it
contained DNA evidence implicating him in the murder. They hoped their
“bluff” would elicit a “confession” from Dann.
¶10 During his third police interview, Dann admitted that he and
Talavera bludgeoned the victim to death with a hammer. With a confession
secured, the State charged Dann with one count of first-degree murder. The
indictment outlined dual theories―felony murder (having kidnapped the
victim, and “in the course of and furtherance of [that] offense,” causing the
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victim’s death) and premediated murder. The State also petitioned to
revoke Dann’s probation.
¶11 At trial, the State called the minor witness to testify.
Consistent with her initial police interview, the minor witness stated that
she saw Dann wash off “a dark substance” that “looked like blood” a few
weeks before law enforcement officers found the victim’s body. However,
she denied that Dann told her he had killed the victim. She also explained
that since that night, she has been found mentally impaired by a court,
diagnosed as “persistently acutely disabled” by medical professionals, and
prescribed anti-psychotic medication to treat, among other things,
hallucinations. She also admitted that around the time of the victim’s death,
she had been “self-medicating” with heroin, methamphetamine, and
marijuana. The State also played an audio-recording of Dann’s third police
interview and admitted the audio-recording and a transcript of the third
police interview as exhibits.
¶12 After a three-day trial, a jury found Dann guilty as charged.
The jury’s verdict form reflects that only three jurors found Dann
committed premeditated murder, but all twelve jurors found he committed
felony murder.
¶13 The superior court sentenced Dann to a term of life
imprisonment, scheduled to commence upon his completion of concurrent
sentences imposed in two, unrelated cases in which the court revoked his
probation based on the underlying conviction. Dann timely appealed.
DISCUSSION
I. Admission of Evidence of Inculpatory Statements
¶14 Dann argues he should be granted a new trial because the
superior court admitted into evidence his confession to law enforcement
officers without first determining the voluntariness of his incriminating
statements. He asserts law enforcement officers extracted his confession in
violation of his constitutional rights, rendering those inculpatory
statements inadmissible at trial.
¶15 “To be admissible, a statement must be voluntary, not
obtained by coercion or improper inducement.” State v. Ellison, 213 Ariz.
116, 127, ¶ 30 (2006). “A defendant ‘objecting to the admission of a
confession’ has a constitutional right grounded in the Fourteenth
Amendment’s Due Process Clause ‘to a fair hearing in which both the
underlying factual issues and the voluntariness of his confession are
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actually and reliably determined.’” State v. Bush, 244 Ariz. 575, 588, ¶ 54
(2018) (quoting Jackson v. Denno, 378 U.S. 368, 380 (1964)). “But the United
States Constitution ‘does not require a voluntariness hearing absent some
contemporaneous challenge to the use of the confession.’” Id. (quoting
Wainwright v. Sykes, 433 U.S. 72, 86 (1977); see also State v. Alvarado, 121 Ariz.
485, 487 (1979) (“[A]bsent some objection by the defendant to the admission
of his confession, the Constitution does not require a voluntariness hearing
to be held.”); State v. Snee, 244 Ariz. 37, 38-39, ¶¶ 6, 10 (App. 2018) (holding
courts are neither constitutionally nor statutorily obligated to conduct
voluntariness hearings unless “voluntariness is disputed by the defense”).
¶16 In this case, Dann did not move to suppress his incriminating
statements, nor did he request a voluntariness hearing before the trial
commenced. And when the State elicited information concerning his
confession at trial, Dann did not object. Despite the absence of a formal
objection, Dann nonetheless argues that he squarely challenged the
voluntariness of his confession at trial. See Bush, 244 Ariz. at 589-90, ¶¶ 55,
57, 62 (noting that a defendant has no right to a “sua sponte voluntariness
hearing” without an objection but discussing whether a clear challenge to a
confession may serve as the “functional equivalent of an objection”).
¶17 We assume, without deciding, that Dann sufficiently
challenged the admissibility of his incriminating statements at trial. Cf.
Bush, 244 Ariz. at 589, ¶ 54 (noting that because the defendant “neither
presented any evidence nor argued to the jury that his confession was
involuntary,” the superior court “was not required to hold a voluntariness
hearing”). Accordingly, we must determine whether Dann was prejudiced
by the superior court’s failure to hold a voluntariness hearing. In assessing
the voluntariness of Dann’s confession, we consider the totality of the
circumstances. State v. Huerstel, 206 Ariz. 93, 105, ¶ 50 (2003). We will not
find Dann’s statements involuntary unless there was “both coercive police
behavior and a causal relation between the coercive behavior and the
defendant’s overborne will.” State v. Boggs, 218 Ariz. 325, 336, ¶ 44 (2008).
¶18 At the outset of the third interview, the detective read Dann
the Miranda warnings, and Dann stated that he understood his rights. The
2
detective then told Dann that he had DNA test results from the minor
witness’s mother’s house, Talavera’s mother’s house, and the green truck.
Without revealing the purported DNA testing results, the sergeant
interjected that the officers were talking to Dann “first” to “give [him] an
2 Miranda v. Arizona, 384 U.S. 436 (1966).
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Decision of the Court
opportunity” to explain “why” he did what they already “kn[e]w [he] did.”
In response, Dann admitted, “I was there.”
¶19 At that point, the sergeant reiterated, “we’re giving you the
first opportunity because there’s a difference between first degree murder,
second degree murder and manslaughter, right?” The sergeant continued,
“you have the first and only opportunity to be honest about what all
happened . . . so we can go to the attorney and say, hey, [Dann] came clean,
he’s remorseful, he was honest and that gives us an opportunity to plead
and try to help you out.” Dann, again, said, “I was there.”
¶20 Returning to the purported test results, the detective asked
Dann to explain why law enforcement officers recovered his DNA if he was
simply present and “didn’t do it.” In response, Dann recounted a
confrontation with the victim in which he accused the victim of sexually
abusing a minor. When Dann later told Talavera that the victim had denied
the sexual abuse allegations, Talavera suggested that they “should do
something about it.”
¶21 Although claiming he “want[ed] no part” of Talavera’s plan,
Dann admitted that he was driving the green truck when he and Talavera
offered the victim a ride. Dann explained that the victim accepted the offer
and sat next to him in the front passenger seat. Talavera then moved
directly behind the victim, wrapped a seat belt around his neck, and began
choking him.
¶22 With the victim physically restrained, Dann drove to a remote
area and parked. After ordering the victim to get out of the truck, Talavera
began striking him with a hammer. Talavera’s first blow hit the victim’s
arm. When Talavera subsequently struck the victim in the head, he fell to
the ground. Initially, Dann told the detective and sergeant that only
Talavera struck the victim and that he and Talavera drove away after the
victim fell to the ground, appearing unconscious. Dann also confirmed the
minor witness’s account, in part, explaining that he and Talavera drove to
her mother’s house and washed their hands afterward.
¶23 After Dann finished relaying his initial account of the victim’s
murder, the sergeant cast doubt on his story, claiming that law enforcement
officers had recovered his DNA from the seatbelt used to choke the victim.
In response, Dann unequivocally denied sitting in the backseat and
maintained that he drove the truck.
¶24 After reaffirming his account, Dann stated, “I just want to go
home and [] see my kids.” At that point, the sergeant pressed Dann, saying
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“you’re in a [expletive] hole” and “you’re like six feet under.” Reiterating
that the officers were giving Dann “an opportunity”― a “rope” to climb out
of his “hole”―and claiming that they had evidence he “swung that
hammer,” the sergeant warned Dann that “once [he and the detective]
walk[ed] out th[e] door, it’s done.” Again, Dann simply stated that he
wanted “to see [his] kids,” and the sergeant responded, “[y]ou may not be
able to now, depending on what you tell us. . . . I’m not saying you’re never
going to see your kids again but it’s going to make a big difference when
you see them. . . . Grab that [expletive] rope. . . . Don’t [expletive] yourself
because right now I can prove what you did.” At that point, Dann revised
his story and admitted that after Talavera attacked the victim, he struck the
victim with the hammer four times―including striking the victim’s
mouth―and “finish[ing] it.”
¶25 Dann does not contend that biographical or environmental
factors induced his confession, and nothing in the record would support
such an assertion. Dann was 24 years old at the time of the third interview
and had prior experience with the criminal justice system. Although law
enforcement officers escorted him to the interview, Dann was not
handcuffed or otherwise physically restrained, and the interrogating
officers were unarmed. Moreover, the interrogation lasted less than 40
minutes and it is uncontested that neither the detective nor the sergeant
touched Dann or stood over him during questioning. See State v. Ross, 180
Ariz. 598, 603 (1994) (“The interrogation environment does not suggest
police intimidation or coercion.”).
¶26 Instead of asserting physical intimidation or duress, Dann
contends that the interviewing officers used interrogation tactics
amounting to psychological coercion. Specifically, he claims the detective
and sergeant induced his confession through promises, threats, and
fabricated evidence.
¶27 First, Dann argues that the interrogating officers extracted his
confession with promises of leniency. “Promises of benefits or leniency,
whether direct or implied, even if only slight in value, are impermissibly
coercive.” State v. Lopez, 174 Ariz. 131, 138 (1992). While broad in scope, this
general principle does not preclude law enforcement officers from
“offer[ing] to tell the prosecutor about the defendant’s cooperation and
suggest[ing] that such cooperation may increase the likelihood of a more
lenient sentence” so long as the offer “is couched in terms of a mere
possibility or an opinion.” Strayhand, 184 Ariz. at 579 (quotation omitted);
see also State v. Tapia, 159 Ariz. 284, 290 (1988) (“[U]nder some
circumstances, direct promises that officers would tell the prosecutor if
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defendant cooperated are permissible.”). Likewise, “[m]ere advice from the
police that it would be better for the accused to tell the truth when
unaccompanied by either a threat or a promise does not render a
subsequent confession involuntary.” State v. Amaya-Ruiz, 166 Ariz. 152, 165
(1990); see also State v. Blakely, 204 Ariz. 429, 436, ¶ 29 (2003) (“Mere advice
that it would be better to be truthful is a permissible interrogation tactic.”);
Huerstel, 206 Ariz. 93, 106, ¶ 55 (2003) (“[S]uch advice [to tell the truth] from
the police when unaccompanied by either a threat or promise does not
render a subsequent confession involuntary.”(quotation omitted)).
¶28 Here, the interrogating officers’ statements exhorting Dann to
tell the truth did not constitute express or implied promises. Rather than
assuring leniency, the officers simply offered to relay Dann’s cooperation
and remorse to the prosecutor. Although the sergeant, at one point,
referenced possible charges, this statement was distinct from the offer to
contact the prosecutor on Dann’s behalf. Tapia, 159 Ariz. at 288-89(explaining that interrogating officers may advise a defendant of the
potential charges against him or the potential sentences that a court may
impose should a jury convict the defendant of those charges). Having
reviewed the interrogation in its entirety, neither the detective nor the
sergeant offered Dann leniency in exchange for his incriminating
statements. See State v. Hensley, 137 Ariz. 80, 87 (1983) (explaining a
statement that “do[es] not offer any benefit to the defendant in exchange
for information” is not an impermissible promise). Because none of the
officers’ statements constituted an impermissible promise, they did not
render Dann’s subsequent confession inadmissible. Cf. Strayhand, 184 Ariz.
at 579 (holding detective’s statement that the defendant’s cooperation
would impact “the amount of time” he received at sentencing constituted
an impermissible promise that “caused the [d]efendant to confess”).
¶29 Next, Dann contends that the law enforcement officers
induced his inculpatory statements by threatening him. While Dann
correctly notes that the sergeant, at times, used harsh and profane language,
neither the sergeant nor the detective expressed any intent to harm Dann,
threatened to tell the prosecutor if he failed to cooperate, or implied that he
may receive a greater punishment if he refused to confess. Cf. Tapia, 159
Ariz. at 11 (holding officers’ statements that they “would see to it that a
defendant would go to prison if he failed to cooperate” constituted
impermissible threats); see also State v. Blakley, 204 Ariz. 429, 436-37, ¶ 30
(2003) (“Although it is permissible for an interrogating officer to represent
. . . that the defendant[‘s] cooperat[ion] will be communicated to the proper
authorities, the same cannot be said of a representation that a defendant’s
failure to cooperate will be communicated to the prosecutor.”) (quoting
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United States v. Tingle, 658 F.2d 1332, 1336 n.5 (9th Cir. 1981)). Moreover, to
the extent Dann contends that the interrogating officers induced his
confession by suggesting he may be unable to see his children unless he
cooperated, the record reflects that Dann, not the officers, raised the matter
of his children. Cf. Tingle, 658 F.2d at 1336 (concluding police coerced
confession by implying that defendant would not see her child for a long
time unless she cooperated with police). Furthermore, by that point in the
interview, Dann had already confessed to kidnapping the victim and being
present for his murder (felony murder). See Lopez, 174 Ariz. at 138(concluding that even if an officer made an implied promise during an
interrogation, the defendant could not show that he relied on the promise
because the defendant had already admitted to committing the crime when
the “alleged inducement” was made). On this record, there is no evidence
that the law enforcement officers used threats to coerce Dann’s confession.
¶30 Finally, Dann argues that the interrogating officers fabricated
incriminating evidence to secure his confession. “Standing alone, . . . a lie
during interrogation does not render a confession involuntary.” Amaya-
Ruiz, 166 Ariz. at 165. In fact, “[a] statement induced by fraud or trickery is
not made involuntary unless there is additional evidence indicating that the
defendant’s will was overborne or that the confession was false or
unreliable.” State v. Winters, 27 Ariz. App. 508, 511 (1976) (concluding the
defendant’s confession was voluntarily even though it was elicited after
police officers falsely told the defendant that his fingerprints matched those
found at the crime scene); see also Strayhand, 184 Ariz. at 579 (explaining
“courts will tolerate some form of police gamesmanship so long as the
games do not overcome a suspect’s will and induce a confession not truly
voluntary,” and therefore “misrepresentations are not per se
impermissible”) (quotation omitted).
¶31 Although initially vague when they referenced the purported
“DNA results,” later in the interview, the interrogating officers
unquestionably claimed to have physical evidence tying Dann to the
victim’s murder. In fact, at trial, the sergeant expressly acknowledged that
he lied to Dann during the interrogation. But nothing in the record suggests
that the interrogators’ misleading statements and falsehoods coerced an
involuntary confession. When confronted with false evidence that police
officers had recovered his DNA from the passenger-side seatbelt, Dann
adamantly denied even sitting in the backseat. In fact, he steadfastly
maintained that Talavera, not he, choked the victim with a seatbelt. This
unwavering denial shows that Dann’s will was not overborne by the
interrogating officers’ use of false DNA evidence. See Amaya-Ruiz, 166 Ariz.
at 160, 165 (determining defendant’s confession to murder was voluntary,
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even though a detective falsely told him an eyewitness had seen him
running from a stolen truck, noting the defendant continued to deny that
he had stolen the truck when confronted with the fabricated evidence,
though he admitted that he committed murder). Because there is no
evidence of physical coercion, impermissible promises, or threats in this
case, there is no basis to conclude that the DNA deception, alone, induced
an involuntary waiver of Dann’s Fifth Amendment rights. See Winters, 27
Ariz. App. at 511. Equally important, nothing in the record suggests that
Dann’s confession was false or otherwise unreliable because of the
deception. “The police are not forbidden to outsmart—they are forbidden
to compel.” State v. Carrillo, 156 Ariz. 125, 136 (1988).
¶32 Considering the totality of the circumstances, the record
reflects that Dann’s confession was voluntary and not the product of either
physical or psychological coercion. He was not threatened, promised
leniency, or otherwise induced to confess. On this record, the police did not
overreach or otherwise overwhelm Dann’s will. Therefore, the superior
court properly admitted evidence of his confession, and Dann was not
prejudiced by the lack of a voluntariness hearing.
II. Admission of Evidence of Probation Status
¶33 Dann contends he should be granted a new trial because the
superior court admitted evidence that arguably implied he was on
probation when he was taken into custody for his third police interview.
He asserts this “other-act” evidence was both irrelevant and unfairly
prejudicial.
¶34 We review evidentiary rulings for a clear and prejudicial
abuse of discretion. See State v. Ayala, 178 Ariz. 385, 387 (App. 1994). In
conducting our review, we defer to the superior court’s assessment of
relevance and unfair prejudice. See State v. Via, 146 Ariz. 108, 122 (1985)
(noting that deference is appropriate because the superior court is best
positioned to balance probative value and prejudice).
¶35 Before trial, defense counsel moved in limine to preclude the
State from introducing any evidence regarding Dann’s probation status. In
his motion, defense counsel specifically noted that the third police
interview “was conducted at the probation office with the assistance of” the
probation department and argued that probation-related evidence should
be excluded as both irrelevant and highly prejudicial.
¶36 On the first day of trial, the superior court discussed the
motion in limine with the parties. The prosecutor agreed with defense
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counsel that evidence regarding Dann’s probation status was not
“appropriate,” stating he would “sanitize” any evidence before introducing
it at trial. After hearing from the parties, the court granted Dann’s motion
in limine, precluding the prosecutor from eliciting or otherwise introducing
any evidence that Dann “was on probation.”
¶37 Despite the superior court’s order and his own assurances, the
prosecutor failed to sanitize both the audio-recording and the transcript of
the third interview before presenting them to the jury during the
interrogating sergeant’s direct testimony. The unsanitized exhibits
contained the following exchange:
Sergeant: You got picked up by Probation?
Dann: Yeah.
¶38 Immediately following the sergeant’s direct testimony, and
outside the jury’s presence, defense counsel objected to the transcript’s
inclusion of the sergeant’s statement concerning probation. The superior
court agreed with defense counsel that the prosecutor should have redacted
the transcript and offered to instruct the jury not to consider that portion of
the interview. Defense counsel declined the court’s offer of a curative
instruction, explaining he did not want the court to emphasize the point
unnecessarily. Defense counsel also noted that the sergeant did not say that
Dann was “on probation,” but that “he was picked up by Probation.”
¶39 Drawing on that distinction, the superior court characterized
the exchange as “nonsensical” and ordered that it be redacted from the
transcript before submitting the exhibit to the jury for deliberation. At that
point, defense counsel requested that the audio-recording be “stricken from
the record” because it also “violated” the superior court’s in limine ruling.
The court denied defense counsel’s request, again noting that the sergeant’s
statement simply referred to Dann having been “picked up by Probation”
rather than being “on probation.” However, the court also ordered the
prosecutor to redact the audio recording before submitting that exhibit to
the jury for deliberation.
¶40 Relevant evidence is admissible unless it is otherwise
precluded by the federal or state constitution, an applicable statute, or rule.
Ariz. R. Evid. 402. Evidence is relevant if “it has any tendency” to make a
fact of consequence in determining the action “more or less probable than
it would be without the evidence.” Ariz. R. Evid. 401. Nonetheless, even
relevant evidence may be excluded “if its probative value is substantially
outweighed by a danger of . . . unfair prejudice.” Ariz. R. Evid. 403.
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Moreover, “evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person.” Ariz. R. Evid. 404(b)(1).
¶41 The sergeant’s reference to probation officers taking Dann
into custody was inadmissible. Although nothing in the record suggests
that the State presented the fleeting statement intentionally, much less for
the impermissible purpose of proving Dann’s character, it was nonetheless
irrelevant―meaning it did not have any tendency to make a fact of
consequence in determining Dann’s guilt or innocence more or less
probable.
¶42 But the superior court did not find the evidence admissible.
To the contrary, the court found that the State’s introduction of the evidence
violated its in limine ruling. The narrow question before us, then, is whether
the superior court abused its discretion in fashioning a remedy for the
violation. When the superior court offered to admonish the jury not to
consider the sergeant’s statement, defense counsel refused a curative
instruction. Following defense counsel’s rejection of a curative instruction,
the court ordered the prosecutor to redact both the audio-recording and the
transcript before submitting them to the jury for deliberation. While defense
counsel petitioned the court to strike the audio-recording from the record,
in its entirety, the isolated and somewhat vague reference to probation did
not warrant such a dramatic measure. See State v. Laird, 186 Ariz. 203, 206-
07 (1996) (concluding unsolicited statements referring to the defendant’s
probation and detention status were such “a brief and tiny part of extensive
trial testimony” that the superior court’s remedy of striking the answers
and instructing the jury to disregard them was “adequate”); see also State v.
Bailey, 160 Ariz. 277, 280 (1989) (determining the codefendant’s “rambling
answer suggest[ing] that [the] defendant had served time in prison” was
inadmissible but “fairly innocuous,” given its vague nature, and therefore
did not warrant a mistrial). On this record, the superior court did not abuse
its discretion by offering a curative instruction and ordering the State to
redact the exhibits instead of striking evidence of the third interrogation in
its entirety.
III. Denial of Motion to Change Counsel
¶43 Dann contends the superior court violated his constitutional
right to counsel by denying his motion for change of counsel. He asserts
that he and his appointed attorney had “a complete breakdown in the
attorney-client relationship.”
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¶44 “The Sixth Amendment guarantees criminal defendants the
right to representation by counsel, but an indigent defendant is not entitled
to counsel of choice, or to a meaningful relationship with his or her
attorney.” State v. Gomez, 231 Ariz. 219, 224, ¶ 19 (2012) (quotation omitted).
A defendant’s constitutional right to competent counsel “is violated when
there is a complete breakdown in communication or an irreconcilable
conflict between a defendant and his appointed counsel.” Id. (quotation
omitted). We review a superior court’s denial of a request for new counsel
for an abuse of discretion. Id. at ¶ 18.
¶45 Approximately nine months before trial, Dann transmitted
two requests for new counsel to the superior court, citing both a lack of
confidence in his attorney and a lack of communication. The court
scheduled a hearing on the matter, but by the day of the hearing, Dann
withdrew both requests, stating he and counsel “ha[d] talked” and “come
to an understanding and agreement.” Accordingly, the court “t[ook] no
further action” regarding the matter.
¶46 Five months later, Dann transmitted another request for new
counsel to the superior court, asserting that he and counsel had
“develop[ed]” a “conflict of interest” and that counsel was “ineffective.”
The court again scheduled a hearing.
¶47 At the hearing, Dann provided a somewhat convoluted
explanation for his request for new counsel, stating:
Due to the unnecessary complications of trying to paper trail
the (unintelligible) proving consistent inconsistencies that my
lawyer develops with me creating conflict. (Unintelligible)
my court appointed attorney delivers indicates my initial
complaint of ineffective assistance of counsel. The minimal
contact (unintelligible) initiate any time of rapport with said
counsel deems impossible.
Dann then complained, more clearly, that defense counsel failed to answer
both his collect calls and his family members’ phone calls, and that counsel
“rarely” responded to emails.
¶48 After hearing from Dann, the superior court invited defense
counsel to respond. Defense counsel simply noted that he had not yet
commenced pretrial interviews, “so if the Court was inclined to get [Dann]
a new attorney,” the transition would not be difficult.
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¶49 At that point, the superior court explained that due to the
pandemic there “ha[d] been issues,” such as increased restrictions at jails
and quarantining at the legal defender’s office, which had hindered
attorney-client communications in numerous criminal cases. While
acknowledging that Dann had not received the level of communication and
engagement with counsel that he desired, the court found defense counsel
and Dann had “at least some discussions regarding plea negotiations” and
that Dann had not asserted, much less shown, “a complete lack of
communication” or any other basis to find an “irreconcilable conflict.”
Noting defense counsel’s considerable experience in handling murder cases
and “difficult clients,” the court denied Dann’s request for a new attorney
“at th[at] point in time,” stating the court had not yet “heard enough” to
justify the appointment of new counsel.
¶50 When a defendant requests substitution of counsel, the
superior court must inquire regarding the basis for the request. State v.
Torres, 208 Ariz. 340, 343, ¶ 7 (2004). While a formal hearing may not be
necessary to address “generalized complaints about differences in
strategy,” a court “must conduct a hearing” when a defendant makes
“sufficiently specific, factually based allegations” supporting a request for
new counsel. Id. at ¶ 8 (quotation omitted).
¶51 “At such a hearing, the defendant bears the burden of
demonstrating that he has a genuine irreconcilable conflict with his counsel
or that there has been a total breakdown in communications.” Id. “[T]o
prove a total breakdown in communication, a defendant must put forth
evidence of a severe and pervasive conflict with his attorney or evidence
that he had such minimal contact with the attorney that meaningful
communication was not possible.” State v. Paris-Sheldon, 214 Ariz. 500, 505,
¶ 12 (App. 2007) (quotation omitted). “If a defendant establishes a total
breakdown in communication, or an irreconcilable conflict with his
attorney, then the [court] must grant the request for new counsel.” Torres,
208 Ariz. at 343, ¶ 8.
¶52 “Before ruling on a motion for change of counsel,” the
superior court should consider whether an irreconcilable conflict exists,
whether new counsel would face the same conflict, the timing of the
motion, the inconvenience to witnesses, the time period already elapsed
between the alleged offense and trial, the defendant’s proclivity to change
counsel, and the quality of counsel. Gomez, 231 Ariz. at 225, ¶ 25.
¶53 Applying these principles here, neither Dann’s written
requests nor his oral hearing statements alleged sufficient facts to warrant
14
STATE v. DANN
Decision of the Court
a change in counsel. Cf. State v. Moody, 192 Ariz. 505, 507, ¶ 13 (1998) (noting
the record was “replete with examples of a deep and irreconcilable conflict”
between the defendant and his appointed attorney). Simply put, Dann
never cited any facts demonstrating discord or hostility to substantiate his
bare allegations of an irreconcilable conflict with appointed counsel.
Although Dann asserted that he and counsel had a total breakdown in
communication, the superior court noted that they had discussed plea
negotiations, undermining Dann’s claim that meaningful communication
was not possible. Moreover, the court explained that numerous defendants
with pending cases likewise complained of unsatisfactory communication
with their appointed attorneys, primarily due to pandemic-related
restrictions and circumstances. Apart from noting that strained
communication between defendants and counsel was a common
pandemic-era complaint and not, alone, indicative of a total breakdown in
communication or an irreconcilable conflict, the court also pointed to
counsel’s experience and ability to handle both challenging cases and
clients as a basis to deny Dann’s request.
¶54 Citing the other relevant factors, Dann correctly notes that
nothing in the record suggests that a change in counsel would have
materially inconvenienced either trial witnesses or the court. And, apart
from his previous request for new counsel, which he later withdrew, the
record does not reflect that Dann had a “proclivity” to change counsel.
While these factors do not weigh against a change in counsel, they do not
mandate a change in counsel when a defendant has failed to allege specific
facts demonstrating a severe and pervasive conflict with his attorney or the
near absence of contact such that meaningful communication with
appointed counsel was impossible. On this record, we cannot say that the
superior court, having provided Dann with an opportunity to present
specific, factual allegations, abused its discretion by denying his motion for
new counsel. See Paris-Sheldon, 214 Ariz. at 505, ¶ 13 (explaining a superior
court must resolve any factual dispute that arises during a Torres inquiry,
and a reviewing court defers “to that resolution so long as the record
supports it”).
15
STATE v. DANN
Decision of the Court
CONCLUSION
¶55 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
16