State v. Trani

26 P.3d 1154, 200 Ariz. 383
CourtCourt of Appeals of Arizona
DecidedMay 16, 2001
DocketNo. 2 CA-CR 00-0091
StatusPublished
Cited by12 cases

This text of 26 P.3d 1154 (State v. Trani) 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. Trani, 26 P.3d 1154, 200 Ariz. 383 (Ark. Ct. App. 2001).

Opinion

OPINION

HOWARD, Presiding Judge.

¶ 1 Appellant State of Arizona claims the trial court erred by dismissing, on the ground of double jeopardy, the murder prosecution against appellee Robert Trani after a mistrial due to prosecutorial misconduct. We agree that the trial court erred and vacate the dismissal.

BACKGROUND

¶ 2 Trani was charged with murder and assault for allegedly ordering the raid of the home of a person who owed him a drug-related debt. The person who owed the debt [384]*384was not there during the raid, but one person present at the time was murdered and another was assaulted. It is undisputed that Trani was in California at the time of the raid and did not personally carry out the murder and assault. Because the first jury to which the case had been presented could not reach a verdict, the trial court declared a mistrial and ordered a new trial.

¶ 3 During the second trial, the prosecutor presented the testimony of a witness who had heard Trani threaten to kill the person who owed the debt. On cross examination, defense counsel asked the witness about several violations of her plea agreement, inferring that the witness had fabricated her testimony in order to retain the benefits of the plea agreement. The prosecutor attempted to rehabilitate the witness on redirect by reading from the witness’s statement to police which had predated the plea agreement. In doing so, the prosecutor read a question and answer, which in substance stated that Trani had ordered the raid. The answer was based solely on hearsay and the prosecutor stopped reading at that point.

¶ 4 Trani objected to the hearsay, and the prosecutor stipulated that he had read inadmissible hearsay. Trani later moved for a mistrial, which the trial court granted because the inadmissible statement went to the central issue in the case: whether Trani had ordered the raid and murder. Trani then moved to dismiss the indictment on the ground of double jeopardy, alleging the prosecutor was guilty of misconduct and had acted intentionally and with an improper purpose, indifferent to the possibility of a mistrial. Agreeing with Trani, the trial court dismissed the indictment with prejudice.

DISCUSSION

¶ 5 The state argues the trial court erred by dismissing the indictment on the ground of double jeopardy because of prosecutorial misconduct. We review the trial court’s decision for an abuse of discretion. State v. Covington, 136 Ariz. 393, 396, 666 P.2d 493, 496 (App.1983). But we note that “a dismissal of an indictment with prejudice on the ground of prosecutorial misconduct is rare.” State v. Young, 149 Ariz. 580, 585, 720 P.2d 965, 970 (App.1986).

¶ 6 The trial court must order a mistrial based upon prosecutorial misconduct if the misconduct permeates the entire trial and deprives the defendant of a fair trial. State v. Atwood, 171 Ariz. 576, 611, 832 P.2d 593, 628 (1992). But a mistrial based on prosecutorial misconduct generally does not bar a later retrial. State v. Soloman, 125 Ariz. 18, 21, 607 P.2d 1, 4 (1980). In Pool v. Superior Court, 139 Ariz. 98, 108-09, 677 P.2d 261, 271-72 (1984), however, our supreme court held that if prosecutorial misconduct causes a mistrial, a retrial may be barred by Arizona’s Double Jeopardy Clause, Arizona Constitution, article II, § 10, under the following circumstances:

1. Mistrial is granted because of improper conduct or actions by the prosecutor; and
2. such conduct is not merely the result of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial or reversal; and
3. the conduct causes prejudice to the defendant which cannot be cured by means short of a mistrial.

(Footnote omitted.)

¶ 7 The second prong of the Pool test is at issue here. In determining whether the prosecutor acted intentionally, knowing his conduct to be improper, and in the pursuit of an improper purpose without regard to the possibility of causing a mistrial, the trial court looks to objective factors, including “the situation in which the prosecutor found himself, the evidence of actual knowledge and intent[,] ... any other factors which may give rise to an appropriate inference or conclusion,” and “the prosecutor’s own explanations of his ‘knowledge’ and ‘intent.’ ” Id. at 108 n. 9, 677 P.2d at 271 n. 9.

¶ 8 In Pool, the defendant had been improperly charged under the theft statute and had testified to facts that the state could not [385]*385rebut and which, if believed at all, would have required a not guilty verdict. 139 Ariz. at 100-01, 677 P.2d at 263-64. The defendant apparently had dealt well with the prosecutor’s initial questions “and the cross-examination moved from the irrelevant and prejudicial to the egregiously improper.” Id, at 101, 677 P.2d at 264. The prosecutor had then cross-examined the defendant about handling a gun while intoxicated and his drinking habits, characterized the defendant as a “ ‘cool talker,’ a knowledgeable witness and a ‘good buddy of defense counsel,” asked the defendant for “his view of evidence received[,] ... his expectations of evidence that [would] be given,” and asked him “to speculate on testimony which might have been given by someone who ha[d] claimed the fifth amendment privilege.” Id. at 102-03, 109-11, 677 P.2d at 265-66, 272-74. The prosecutor also re-asked questions after proper objections had been sustained. Id. at 102, 677 P.2d at 265. The supreme court found the prosecutor’s conduct was not “some isolated result of loss of temper, but the cumulative effect of a line of questioning in which the prosecutor posed numerous improper questions resulting in at least two bench conferences and one court admonishment.” Id. at 106, 677 P.2d at 269. Under those particular circumstances, the court could only conclude:

[T]he prosecutor intentionally engaged in conduct which he knew to be improper, that he did so with indifference, if not a specific intent, to prejudice the defendant. The purpose, so far as we can conclude from the record and in the absence of any suggestion of proper purpose from the State, was, at best, to avoid the significant danger of acquittal which had arisen, prejudice the jury and obtain a conviction no matter what the danger of mistrial or reversal.

Id. at 109, 677 P.2d at 272.

¶ 9 In State v. Hughes, 193 Ariz. 72, ¶ 31, 969 P.2d 1184, ¶ 31 (1998), the court found the same prosecutor’s misconduct as egregious as it had been in Pool. The prosecutor once again engaged in a pattern of misconduct that permeated the entire trial. Our supreme court characterized the prosecutor’s rebuttal argument as a “masterpiece of misconduct.” Hughes, 193 Ariz.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Delgado
Court of Appeals of Arizona, 2022
State v. Jackson
Court of Appeals of Arizona, 2019
State v. Marquez
Court of Appeals of Arizona, 2019
State v. Phillips
Court of Appeals of Arizona, 2018
State v. Perkins
Court of Appeals of Arizona, 2016
State v. Hollingsworth
Court of Appeals of Arizona, 2016
State v. Goold
Court of Appeals of Arizona, 2016
State v. Moton
Court of Appeals of Arizona, 2014
State v. Humelhans
Court of Appeals of Arizona, 2014
State v. Cortez
Court of Appeals of Arizona, 2014
State v. Korovkin
47 P.3d 1131 (Court of Appeals of Arizona, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
26 P.3d 1154, 200 Ariz. 383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-trani-arizctapp-2001.