State v. Rodriguez

773 P.2d 486, 160 Ariz. 381
CourtCourt of Appeals of Arizona
DecidedMarch 20, 1989
Docket1 CA-CR 11833
StatusPublished
Cited by7 cases

This text of 773 P.2d 486 (State v. Rodriguez) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Rodriguez, 773 P.2d 486, 160 Ariz. 381 (Ark. Ct. App. 1989).

Opinions

OPINION

GREER, Judge.

Appellee was indicted on December 11, 1985, for two counts of child molestation. On June 27,1986, a jury found the appellee guilty as charged. At that trial, the seven-year-old victim of both offenses testified and was cross-examined. On September 8, 1986, the trial judge granted appellee’s motion for new trial pursuant to Rule 24.1, Ariz.R.Crim.P. The state filed a timely appeal in the matter, State v. Rodriguez, 1 CA-CR 10641; however, it voluntarily dismissed its appeal and appellee’s case was scheduled for a new trial. On May 27, 1987, the trial judge found that the victim was unavailable to testify at the second trial pursuant to Rule 804(a)(4), Ariz.R. Evid., and the transcript of her earlier testimony could be admitted into evidence. This court declined jurisdiction over the appellee’s special action challenging this ruling. Rodriguez v. Superior Court, 1 CA-SA 190 (June 24, 1987).

After the special action to this court, the matter was assigned to a new trial judge. Prior to trial, defense counsel sought reconsideration of the previous judge’s ruling to admit transcripts from the first trial. The defense submitted a written motion entitled “Memorandum in Support of Defendant’s Motion to Exclude Prior Testimony.” After hearing the motion to reconsider the ruling on unavailability, the new trial judge found good cause to reconsider the previous judge’s order pursuant to Rule 16.1(d), Ariz.R.Crim.P, and in effect denied the admissibility of the child’s testimony at the first trial. The trial court granted the state’s subsequent motion to dismiss the charges without prejudice, and the state filed a notice of appeal pursuant to A.R.S. § 13-4032(7). On appeal, the state presents the following issues:

(1) Does the state have a right to proceed by appeal in this matter pursuant to A.R.S. § 13-4032(7)?
(2) Did the trial judge have sufficient good cause to reconsider the ruling of the previous trial judge pursuant to Rule 16.1(d), Ariz.R.Crim.P.

RIGHT TO APPEAL

The state claims that it is taking a direct appeal from the granting of a motion to suppress under A.R.S. § 13-4032(7). Appellee claims that the motion granted was not a motion to suppress evidence, and the state can only proceed by way of special action in this matter, citing State v. Lelevier, 116 Ariz. 37, 567 P.2d 783 (1977).

The only permissible appeals by the state in criminal cases are those specified by statute. State v. Lopez, 26 ArizApp. 559, 550 P.2d 113 (1976). The state argues that, while the motion was called a “Motion To Exclude Prior Testimony,” its effect was to suppress introduction of the first trial transcripts into evidence and is properly appeal-able under A.R.S. § 13-4032(7).

Pursuant to A.R.S. § 13-4032(7), an appeal may be taken by the state from “[a]n order granting a motion to suppress the use of evidence.” The state’s right to appeal under A.R.S. § 13-4032(7) is not limited to the suppression of illegally-obtained evidence.

In State v. Lelevier, supra, the supreme court denied the defendant’s challenge that evidence seized during a stop of the defendant’s car was not the product of an illegal search. The supreme court noted that a motion to suppress within the meaning of the statutory predecessor of A.R.S. § 13-4032(7) challenged only the constitutionality of the obtaining of evidence by the state. However, Lelevier only involved an issue of suppressing illegally-obtained evidence and did not necessarily consider other potential appeals by the state.

A.R.S. § 13-4032(7) has since been used to challenge suppressing evidence on grounds other than violations of the Fourth Amendment. In State v. Kozlowski, 143 Ariz. 137, 692 P.2d 316 (App.1984), A.R.S. [383]*383§ 13-4032(7) was used to appeal suppression of out-of-state driver’s license revocation evidence through a motion in limine. The evidence had nothing to do with any violation of the Fourth Amendment, nor was it an attempt to suppress based upon any illegal seizure. See also, State v. Mitchell, 136 Ariz. 386, 666 P.2d 486 (App.1982). In State v. Burciaga, 146 Ariz. 333, 705 P.2d 1384 (App.1985), the state was allowed, pursuant to A.R.S. § 13-4032(7), to appeal the denial of its request to use an admission to a presentence officer under Rule 26.6, Ariz.R.Crim.P. The state also appealed the trial court’s pre-trial ruling that prior convictions could not be used in its case-in-chief pursuant to Rule 404, Ariz. R.Evid. Neither issue involved any question of illegally-seized evidence. The court’s jurisdiction over these cases is supported by State v. Rodriguez, 126 Ariz. 28, 30, 612 P.2d 484, 486 (1980), where the Arizona Supreme Court equated a motion in limine with a motion to suppress under Rule 16, Ariz.R.Crim.P. In Rodriguez, the motion at issue was meant to preclude the state from introducing the defendant’s juvenile record.

In this case, appellee’s motion sought to preclude the state from introducing the prior trial’s transcripts into evidence. While this is different from the issue in Lelevier, the trial court’s ruling had the effect of prohibiting the state from using certain evidence and was a motion to suppress within the parameters of Rule 16, Ariz.R.Crim.P. See Rodriguez, supra. Accordingly, the motion and ruling were within the scope of orders appealable by the state pursuant to A.R.S. § 13-4032(7).

GOOD CAUSE

As previously noted, appellee opposed the introduction of the first trial’s transcripts of the victim’s testimony based upon a denial of his right to confront a witness against him under the Sixth Amendment to the United States Constitution. The first trial judge held a hearing in this matter where he heard testimony from two witnesses. The first witness, a psychologist, testified that he had interviewed the victim and read the transcript of the previous testimony.

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Bluebook (online)
773 P.2d 486, 160 Ariz. 381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rodriguez-arizctapp-1989.