FILED BY CLERK IN THE COURT OF APPEALS SEP -7 2007 STATE OF ARIZONA COURT OF APPEALS DIVISION TWO DIVISION TWO
THE STATE OF ARIZONA, ) ) Petitioner, ) ) v. ) 2 CA-SA 2007-0067 ) DEPARTMENT B HON. HOWARD FELL, Judge Pro ) Tempore of the Superior Court of the ) OPINION State of Arizona, in and for the County of ) Pima, ) ) Respondent, ) ) and ) ) ANGELA EDWARDS FRYE, ) ) Real Party in Interest. ) )
SPECIAL ACTION PROCEEDING
Pima County Cause No. CR-20050691
JURISDICTION ACCEPTED; RELIEF GRANTED
Barbara LaWall, Pima County Attorney By Jacob R. Lines Tucson Attorneys for Petitioner
Nesci, St. Louis & West, P.L.L.C. By Joseph P. St. Louis Tucson Attorneys for Real Party in Interest
E C K E R S T R O M, Presiding Judge. ¶1 In this special action proceeding, petitioner State of Arizona asks this court to
reverse the respondent judge’s order of June 4, 2007. That order remanded the charges in
the underlying criminal action for a new determination of probable cause pursuant to
Rule 12.9, Ariz. R. Crim. P., 16A A.R.S., after real party in interest Angela Edwards Frye
filed a motion to dismiss the indictment. The state does not have a remedy by appeal. See
A.R.S. § 13-4032; see also State ex rel. Thomas v. Schneider, 212 Ariz. 292, ¶ 2, 130 P.3d
991, 993 (App. 2006); Ariz. R. P. Spec. Actions 1(a), 17B A.R.S. (special action
jurisdiction appropriate when petitioner has no “equally plain, speedy, and adequate remedy
by appeal”). Because we conclude the respondent judge exceeded his authority and abused
his discretion, we grant relief. See Ariz. R. P. Spec. Actions 3(b) and (c) (questions raisable
in special action include “[w]hether the defendant has proceeded . . . in excess of
jurisdiction or legal authority; or . . . [w]hether a determination was . . . an abuse of
discretion”).
¶2 In February 2005, a Pima County Grand Jury charged Frye by indictment with
criminal damage, a class four felony, two counts of endangerment, class six felonies, and
three misdemeanor charges related to driving while under the influence of an intoxicant.
Frye was arraigned about a week later, and the next day the state filed the transcript of the
grand jury proceeding. In May 2007, over two years later, Frye filed a motion to dismiss the
charges, alleging prosecutorial misconduct during the grand jury proceeding. Specifically,
Frye argued the testimony of Pima County Sheriff’s Detective Mark Bustamante had been
2 inaccurate, and she faulted the prosecutor for failing to disclose this. The state opposed the
motion, contending that it was untimely under Rule 12.9(b), that the state was not guilty of
misconduct, and that the presentation of the case to the grand jury had been fair.
¶3 Frye maintained in her motion that Bustamante had testified falsely on three
points: that witnesses had said Frye seemed to be “asleep or passed out behind the wheel
right before” crashing her car, that “[d]eputies and witnesses observed or noted an odor of
[alcohol] coming from Mrs. Frye,” and that alcohol had been found in Frye’s car. Frye
contended the reports of other deputies established the inaccuracy of Bustamante’s
testimony. And, Frye emphasized that these reports existed when the case was presented
to the grand jury. Insisting that her federal constitutional rights under the Fifth and
Fourteenth Amendments had been violated, Frye argued she was entitled to dismissal of the
charges or, alternatively, a remand of the case to the grand jury for a new determination of
probable cause.
¶4 Over the state’s objection, the respondent judge heard the motion and
proceeded with an evidentiary hearing. The respondent then granted the motion, in part,
after acknowledging it was untimely filed. Although the respondent judge rejected Frye’s
argument that the prosecutor had been guilty of misconduct, he found “the presentation was
not done as fairly as it could have been, and that the presentation may have prejudiced Ms.
Frye.” Adding that Bustamante had “not misled the grand jury in any way,” the respondent
3 judge denied the motion to dismiss but remanded the case for a new presentation of the
charges to the grand jury.
¶5 Rule 12.9(b) provides that a motion challenging grand jury proceedings must
be filed “after an indictment is returned and no later than 25 days after the transcript and
minutes of the grand jury proceedings have been filed or 25 days after the arraignment is
held, whichever is later.” In Maule v. Superior Court, 142 Ariz. 512, 515, 690 P.2d 813,
816 (App. 1984), Division One of this court held that a trial court does have jurisdiction to
grant a request to extend the twenty-five-day time limit of Rule 12.9(b). Rejecting the
state’s contention that the time limit of the rule is both jurisdictional and mandatory, the
court stated:
By this opinion we are holding that the rule is not “jurisdictional,” in the sense that a trial court has no authority to grant a request for extension; however, the rule is “mandatory,” in the sense that the trial court has no authority to grant an extension that is not made on a timely basis. Therefore, the trial court does have jurisdiction in its discretion to grant the motion for an extension of time limits in this case where the motion was made within the time limits of rule 12.9.
Maule, 142 Ariz. at 515, 690 P.2d at 816. Relying on State v. Smith, 123 Ariz. 243, 599
P.2d 199 (1979), the court stated in Maule, “It is clear from Arizona cases that a defendant
may not sit back during the 25-day period and do nothing without being subject to a claim
that he waived his objections to the grand jury proceedings by failing to comply with the
timeliness requirement.” Id. at 514, 690 P.2d at 815.
4 ¶6 Frye did not file her motion challenging the grand jury proceeding for more
than two years after the grand jury transcript and minutes were filed. Nor did she seek an
extension of the Rule 12.9(b) time limit within the twenty-five-day period. Consequently,
the respondent judge did not have the authority to address Frye’s motion and abused his
discretion by hearing it and granting relief. See Maule, 142 Ariz. at 515, 690 P.2d at 816;
see also Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, ¶ 10, 63 P.3d 282, 285 (2003) (a
judge abuses discretion by committing an “‘error of law’”), quoting Grant v. Ariz. Pub.
Serv. Co., 133 Ariz. 434, 456, 652 P.2d 507, 529 (1982).
¶7 Even assuming, without deciding, that a trial court under certain circumstances
has the authority and discretion to entertain a request to extend the time limit of Rule
12.9(b) made after the period has elapsed, we cannot say the respondent soundly exercised
any such discretion. The respondent judge’s comments at the hearing on the motion suggest
he was acting in the interest of judicial economy, choosing to err on the side of caution and
avoid a later claim of error. But Frye asserted no excuse for her failure to come forward for
well over two years. Thus, were we to find that, notwithstanding Division One’s decision
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FILED BY CLERK IN THE COURT OF APPEALS SEP -7 2007 STATE OF ARIZONA COURT OF APPEALS DIVISION TWO DIVISION TWO
THE STATE OF ARIZONA, ) ) Petitioner, ) ) v. ) 2 CA-SA 2007-0067 ) DEPARTMENT B HON. HOWARD FELL, Judge Pro ) Tempore of the Superior Court of the ) OPINION State of Arizona, in and for the County of ) Pima, ) ) Respondent, ) ) and ) ) ANGELA EDWARDS FRYE, ) ) Real Party in Interest. ) )
SPECIAL ACTION PROCEEDING
Pima County Cause No. CR-20050691
JURISDICTION ACCEPTED; RELIEF GRANTED
Barbara LaWall, Pima County Attorney By Jacob R. Lines Tucson Attorneys for Petitioner
Nesci, St. Louis & West, P.L.L.C. By Joseph P. St. Louis Tucson Attorneys for Real Party in Interest
E C K E R S T R O M, Presiding Judge. ¶1 In this special action proceeding, petitioner State of Arizona asks this court to
reverse the respondent judge’s order of June 4, 2007. That order remanded the charges in
the underlying criminal action for a new determination of probable cause pursuant to
Rule 12.9, Ariz. R. Crim. P., 16A A.R.S., after real party in interest Angela Edwards Frye
filed a motion to dismiss the indictment. The state does not have a remedy by appeal. See
A.R.S. § 13-4032; see also State ex rel. Thomas v. Schneider, 212 Ariz. 292, ¶ 2, 130 P.3d
991, 993 (App. 2006); Ariz. R. P. Spec. Actions 1(a), 17B A.R.S. (special action
jurisdiction appropriate when petitioner has no “equally plain, speedy, and adequate remedy
by appeal”). Because we conclude the respondent judge exceeded his authority and abused
his discretion, we grant relief. See Ariz. R. P. Spec. Actions 3(b) and (c) (questions raisable
in special action include “[w]hether the defendant has proceeded . . . in excess of
jurisdiction or legal authority; or . . . [w]hether a determination was . . . an abuse of
discretion”).
¶2 In February 2005, a Pima County Grand Jury charged Frye by indictment with
criminal damage, a class four felony, two counts of endangerment, class six felonies, and
three misdemeanor charges related to driving while under the influence of an intoxicant.
Frye was arraigned about a week later, and the next day the state filed the transcript of the
grand jury proceeding. In May 2007, over two years later, Frye filed a motion to dismiss the
charges, alleging prosecutorial misconduct during the grand jury proceeding. Specifically,
Frye argued the testimony of Pima County Sheriff’s Detective Mark Bustamante had been
2 inaccurate, and she faulted the prosecutor for failing to disclose this. The state opposed the
motion, contending that it was untimely under Rule 12.9(b), that the state was not guilty of
misconduct, and that the presentation of the case to the grand jury had been fair.
¶3 Frye maintained in her motion that Bustamante had testified falsely on three
points: that witnesses had said Frye seemed to be “asleep or passed out behind the wheel
right before” crashing her car, that “[d]eputies and witnesses observed or noted an odor of
[alcohol] coming from Mrs. Frye,” and that alcohol had been found in Frye’s car. Frye
contended the reports of other deputies established the inaccuracy of Bustamante’s
testimony. And, Frye emphasized that these reports existed when the case was presented
to the grand jury. Insisting that her federal constitutional rights under the Fifth and
Fourteenth Amendments had been violated, Frye argued she was entitled to dismissal of the
charges or, alternatively, a remand of the case to the grand jury for a new determination of
probable cause.
¶4 Over the state’s objection, the respondent judge heard the motion and
proceeded with an evidentiary hearing. The respondent then granted the motion, in part,
after acknowledging it was untimely filed. Although the respondent judge rejected Frye’s
argument that the prosecutor had been guilty of misconduct, he found “the presentation was
not done as fairly as it could have been, and that the presentation may have prejudiced Ms.
Frye.” Adding that Bustamante had “not misled the grand jury in any way,” the respondent
3 judge denied the motion to dismiss but remanded the case for a new presentation of the
charges to the grand jury.
¶5 Rule 12.9(b) provides that a motion challenging grand jury proceedings must
be filed “after an indictment is returned and no later than 25 days after the transcript and
minutes of the grand jury proceedings have been filed or 25 days after the arraignment is
held, whichever is later.” In Maule v. Superior Court, 142 Ariz. 512, 515, 690 P.2d 813,
816 (App. 1984), Division One of this court held that a trial court does have jurisdiction to
grant a request to extend the twenty-five-day time limit of Rule 12.9(b). Rejecting the
state’s contention that the time limit of the rule is both jurisdictional and mandatory, the
court stated:
By this opinion we are holding that the rule is not “jurisdictional,” in the sense that a trial court has no authority to grant a request for extension; however, the rule is “mandatory,” in the sense that the trial court has no authority to grant an extension that is not made on a timely basis. Therefore, the trial court does have jurisdiction in its discretion to grant the motion for an extension of time limits in this case where the motion was made within the time limits of rule 12.9.
Maule, 142 Ariz. at 515, 690 P.2d at 816. Relying on State v. Smith, 123 Ariz. 243, 599
P.2d 199 (1979), the court stated in Maule, “It is clear from Arizona cases that a defendant
may not sit back during the 25-day period and do nothing without being subject to a claim
that he waived his objections to the grand jury proceedings by failing to comply with the
timeliness requirement.” Id. at 514, 690 P.2d at 815.
4 ¶6 Frye did not file her motion challenging the grand jury proceeding for more
than two years after the grand jury transcript and minutes were filed. Nor did she seek an
extension of the Rule 12.9(b) time limit within the twenty-five-day period. Consequently,
the respondent judge did not have the authority to address Frye’s motion and abused his
discretion by hearing it and granting relief. See Maule, 142 Ariz. at 515, 690 P.2d at 816;
see also Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, ¶ 10, 63 P.3d 282, 285 (2003) (a
judge abuses discretion by committing an “‘error of law’”), quoting Grant v. Ariz. Pub.
Serv. Co., 133 Ariz. 434, 456, 652 P.2d 507, 529 (1982).
¶7 Even assuming, without deciding, that a trial court under certain circumstances
has the authority and discretion to entertain a request to extend the time limit of Rule
12.9(b) made after the period has elapsed, we cannot say the respondent soundly exercised
any such discretion. The respondent judge’s comments at the hearing on the motion suggest
he was acting in the interest of judicial economy, choosing to err on the side of caution and
avoid a later claim of error. But Frye asserted no excuse for her failure to come forward for
well over two years. Thus, were we to find that, notwithstanding Division One’s decision
in Maule a trial court has the authority to extend the time limit of Rule 12.9(b) when the
request is made after the time has expired, there was no articulated basis for doing so here.
¶8 Frye suggests that she was not bound by the timeliness requirement set forth
in Rule 12.9(b) because she characterized her challenge as a “Motion to Dismiss Based on
5 Prosecutorial Misconduct,” rather than as a motion pursuant to that rule. We reject her
argument for two reasons.
¶9 First, the plain language of Rule 12.9 provides that a motion under the rule is
the exclusive avenue by which grand jury proceedings may be challenged. See Ariz. R.
Crim. P. 12.9(a) (entitled “Challenge to grand jury proceedings,” rule provides grand jury
proceedings “may be challenged only by motion for a new finding of probable cause”).
And, the comment to Rule 12.9(b) clarifies that the rule’s timeliness requirement applies to
all species of grand jury challenges: “A motion attacking the grand jury proceedings . . .
must be brought within 25 days of the filing of the transcript.” No matter how Frye
characterizes her motion and regardless of what relief she requested, she essentially
challenged the propriety of the state’s actions in connection with the grand jury
proceeding—and she did so primarily based on the fairness of the testimony presented.
¶10 Second, the respondent judge’s decision to remand the case for a new finding
of probable cause, the decision challenged in this petition, was not based on Frye’s arguably
discrete claim of prosecutorial misconduct. Indeed, the respondent judge rejected Frye’s
claim of prosecutorial misconduct, specifically stating that he was reviewing Frye’s
remaining arguments pursuant to Rule 12.9. Moreover, after finding that “the [grand jury]
presentation was not done as fairly as it could have been,” the remedy the respondent judge
imposed was precisely the kind of remedy typically imposed for a flawed grand jury
6 proceeding. Clearly, the respondent judge granted Frye relief pursuant to Rule 12.9 despite
the untimeliness of Frye’s challenge.
¶11 Finally, Frye contends that prosecutorial misconduct committed during grand
jury proceedings will not always come to light until after the Rule 12.9 deadline has passed.
Under such circumstances, Frye suggests, rigid enforcement of that deadline would leave
defendants without a remedy for even egregious prosecutorial misbehavior during grand jury
proceedings. But if a defendant suspects that later discovery and disclosure could
conceivably expose a defect in the grand jury proceedings not apparent within the
Rule 12.9(b) filing deadline, the defendant can file a timely motion to extend it—thereby
preserving the right to raise a grand jury challenge at a later stage in the case. See Maule,
142 Ariz. at 515, 690 P.2d at 816 (trial court may grant extension of time to file grand jury
challenge when request occurs before deadline). Frye made no such timely request here.
¶12 For the reasons stated above, we accept jurisdiction of the state’s petition for
special action and grant relief, vacating the respondent judge’s order remanding the
underlying charges to the grand jury.
____________________________________ PETER J. ECKERSTROM, Presiding Judge
CONCURRING:
____________________________________
7 PHILIP G. ESPINOSA, Judge
____________________________________ GARYE L. VÁSQUEZ, Judge