Walker v. Superior Court

956 P.2d 1246, 191 Ariz. 424, 267 Ariz. Adv. Rep. 17, 1998 Ariz. App. LEXIS 62

• Court: Court of Appeals of Arizona
• Decided: April 16, 1998
• Docket: No. 1 CA-SA 97-0234
• Status: Published

Opinions

OPINION

NOYES, Judge.

¶ 1 A police officer stopped Petitioner’s vehicle for expired plates. When Petitioner could not produce a driver’s license, the officer asked for his name and social security number, and Petitioner complied. When the officer learned from his dispatcher that no license information existed for the given name and number, the officer accused Petitioner of lying. Petitioner then stated his true name and number. For this, the Navajo County Attorney is prosecuting Petitioner for obstructing criminal investigations, a class 5 felony, in violation of Arizona Revised Statutes Annotated (“A.R.S.”) section 13-2409 (1989).

¶ 2 Petitioner told the officer that he had at first lied because his license was suspended. Petitioner had other problems as well: He appeared to have been drinking, he admitted as much, he failed the sobriety tests, and he registered a blood alcohol content over .10. Counts I and II of the indictment charge Petitioner with aggravated driving under the influence and with aggravated driving under the influence with BAC of .10 or more. These pending class four felonies are unaffected by this special action, which involves only the obstruction count.

¶3 Petitioner filed a motion to remand the obstruction count to the grand jury and a motion to dismiss it. After the motions were denied, Petitioner obtained a stay of trial and filed this special action. We have jurisdiction pursuant to Arizona Constitution, article 6, section 9, Rule 4(a) of the Rules of Procedure for Special Actions, and A.R.S. section 12-120.21 (1992).

¶ 4 We accept jurisdiction and grant relief because the State instructed the grand jury on only an inapplicable law, and it thus denied Petitioner a substantial procedural right in the grand jury, namely, the due process right to have the grand jury instructed on applicable law. Crimmins v. Superior Court, 137 Ariz. 39, 42, 668 P.2d 882, 885 (1983) (“We hold that the citizen’s arrest statutes were part of the applicable law given the facts of the case, and it was the duty of the prosecutor as legal advisor to the grand jury to instruct on that law.”); Trebus v. Davis in and for County of Pima, 189 Ariz. 621, 623, 944 P.2d 1235, 1237 (1997) (“[Due process] requires the prosecutor to instruct the grand jury on all the law applicable to the facts of the case.”).

¶ 5 As we explain shortly, the obstruction statute is inapplicable to the facts of this case because that statute requires three people: a defendant, an officer (or other specified official), and another (a prospective informant or witness). This case has no “another.” The State, therefore, obtained an indictment on a charge that is inapplicable as a matter of law. (The parties agree that an applicable statute — if the State elects to use it — is A.R.S. section 13-2907.01, false reporting to law enforcement agencies, a class 1 misdemeanor.)

¶ 6 A.R.S. section 13-2409 (1989) provides as follows:

Obstructing criminal investigations or prosecutions; classification

A person who knowingly attempts by means of bribery, misrepresentation, intimidation or force or threats of force to obstruct, delay or prevent the communication of information or testimony relating to a violation of any criminal statute to a peace officer, magistrate, prosecutor or grand jury or who knowingly injures another in his person or property on account of the giving by the latter or by any other person of any such information or testimony to a peace officer, magistrate, prosecutor or grand jury is guilty of a class 5 felony.

¶ 7 Section 13-2409 derives from former section 13-541.01(A),¹ which derived from federal law, namely, from Title 18, section 1510(a) of the United States Code, which provides:

Whoever willfully endeavors by means of bribery to obstruct, delay, or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator shall be fined under this title, or imprisoned not more than five years, or both.

¶ 8 More than twenty years ago, in interpreting section 13-541.01(A), this court stated that “[o]ur Legislature ... clearly indicated that for communication to be criminal it must be ... uttered to obstruct, delay or prevent the communication of information or testimony relating to the violation of a criminal statute to a police officer....” State v. Snodgrass, 117 Ariz. 107, 114, 570 P.2d 1280, 1287 (App.1977). The Snodgrass court also observed that the obstruction statute does not criminalize “false unsworn statements relating to one’s own allegedly criminal conduct____” Id. Although the obstruction statute has been amended since Snodgrass was decided, the focus of the statute has not changed, and the Snodgrass interpretation of it remains valid.

¶ 9 In obstruction statutes, such as section 13-2409, “[t]he primary subject of protection ... is the transmission of the words of a prospective informant or witness; it is the giving of information for which security is sought.” 67 C.J.S. Obstructing Justice § 9 (1978).

¶ 10 This prosecution is based on “misrepresentation” in the first part of section 13-2409, which criminalizes the use of “bribery, misrepresentation, intimidation or force or threats of force to obstruct, delay or prevent the communication of information or testimony____” With the exception of “misrepresentation,” the conduct specified in the obstruction statute is something a person can do only to someone other than the investigating officer. In theory, perhaps, a defendant could bribe, intimidate, force, or threaten the officer to obstruct, delay, or prevent defendant from communicating information to the officer, but such theory is nonsense.

¶ 11 The obstruction statute makes complete sense, however, if it is viewed as criminalizing conduct that defendant directs at “another.” The word “misrepresentation” also has meaning in this context. “The [obstruction] statute is violated whenever an individual induces or attempts to induce another person to make a material misrepresentation to a criminal investigator,” or whenever an individual makes “a misrepresentation to persons being contacted for information by investigators as to the significance and importance of the information relating to the matter which is the subject of that inquiry.” 67 C.J.S. Obstructing Justice § 9 (1978).

¶ 12 We hold that “misrepresentation” in the obstruction statute refers to what defendant says or does to a prospective informant or witness; it does not refer to what defendant says or does to an officer who is investigating defendant. Arizona has numerous laws that criminalize false statements to the government officials specified in section 13-2409: peace officers, magistrates, prosecutors, and grand jurors. Arizona also has numerous laws that criminalize attempts to bribe, intimidate, threaten, or injure those persons. Section 13-2409 is not redundant to those other laws; its singular purpose is to address third-party concerns that those other laws do not reach.

¶ 13 Section 13-2409 is a one-sentence statute with two parts, and the second part expressly mentions “another”; it punishes a defendant who “knowingly injures another in his person or property on account of the giving by the latter or by any other person of any such information____” The two parts of the obstruction statute therefore form a coherent before-and-after protection plan for informants and witnesses: The first part of the statute punishes the defendant who attempts to obstruct, delay, or prevent another from communicating specified information to law enforcement; the second part punishes the defendant who injures another for having communicated that information. What Petitioner said to the officer was a false statement by Petitioner, but it was not an obstruction by Petitioner of communication by another.

¶ 14 Numerous laws exist to punish those who lie to government officials during traffic stops and elsewhere. We have already mentioned A.R.S. section 13-2907.01, false reporting to law enforcement agencies. Granted, this class 1 misdemeanor is less severe than the obstruction statute, which is a class 5 felony, but perhaps the legislature decided that a class 1 misdemeanor is sufficient penalty for a misrepresentation like the one told by Petitioner. Many motorists make misrepresentations when not under oath, and we have no indication that the legislature considers such persons guilty of a class 5 felony and subject to a fine of $150,000, a 60% surcharge, loss of civil rights, and a prison term of 2.5 years. See A.R.S. sections 12-116.01, 12-116.02, 13-702,13-702.01, and 13-801 (prescribing applicable range of fine, surcharge, and prison term). The Arizona false statement statutes do not provide such a severe penalty for unsworn falsification, or even for some kinds of sworn falsification.

¶ 15 A.R.S. section 13-2704 provides as follows:

A. A person commits unsworn falsification by knowingly:

1. Making any statement which he believes to be false, in regard to a material issue, to a public servant in connection with an application for any benefit, privilege, or license.

2. Making any statement which he believes to be false in regard to a material issue to a public servant in connection with any official proceeding as defined in § 13-2801 [i.e. in “a proceeding before any legislative, judicial, administrative or other governmental agency or official authorized to hear evidence under oath”].

B. Unsworn falsification pursuant to paragraph 1, subsection A, is a class 2 misdemeanor. Unsworn falsification pursuant to subsection A, paragraph 2 is a class 6 felony.

A.R.S. section 13-2703 (1989) provides, “A person commits false swearing by making a false sworn statement, believing it to be false____ False swearing is a class 6 felony.” A.R.S. section 13-2702 (Supp.1997) provides that a false sworn statement regarding a material issue is perjury, a class 4 felony.

¶ 16 Except for the perjury statute, the false statement statutes have lesser penalties than the obstruction statute. We doubt that the legislature intended that a roadside misrepresentation be punished more severely than a false sworn statement, or an unsworn falsification on a material matter in connection with an official proceeding.

¶ 17 Another problem with the State’s and the dissent’s interpretation of the obstruction statute is that “misrepresentation” describes a very broad range of behavior. For example, “When one conveys a false impression by the disclosure of some facts and the concealment of others, such concealment is in effect a false representation that what is disclosed is the whole truth.” State v. Coddington, 135 Ariz. 480, 481, 662 P.2d 155, 156 (App.1983) (citations omitted). Does the dissent argue that it is now a class 5 felony in Arizona to tell the officer you had two beers when you had four? Probably not, but the dissent’s interpretation of the obstruction statute opens it up to that sort of application. The legislature has long accepted the Snodgrass interpretation of the obstruction statute, and we continue to do so.

¶ 18 The dissent relies on Coddington, but that case does not contradict our holding (or the Snodgrass holding) that the “communication” element of the obstruction statute does not apply to “statements regarding one’s own allegedly criminal conduct.” See Snodgrass, 117 Ariz. at 114, 570 P.2d at 1287. The Coddington defendant was an informant who failed to fully disclose the criminal conduct of certain targets. 135 Ariz. at 481, 662 P.2d at 156. We do not discuss whether the obstruction statute was applicable in Coddington, for that was not an issue in the case, but we note that Coddington involved officers, targets of a criminal investigation, and “another.” (In that case, however, the “another” was the informant, and he got indicted for making misrepresentations about the targets.) The present case lacks any “another.” In the present case, Petitioner made a misrepresentation about himself during an investigation of himself. The obstruction statute is inapplicable to such facts.

¶ 19 The case is remanded with directions to grant Petitioner’s motion to remand Count III to the grand jury.

KLEINSCHMIDT, J., concurs.

1 . In 1977 the legislature renumbered section 13-541.01 as section 13-2409 and amended it by substituting the word “knowingly” for “willfully” throughout, substituting "is guilty of a class 5 felony” for the former punishment language, and deleting subsection (B). See 1977 Ariz. Sess. Laws Ch. 142, § 85. In 1984 the legislature again amended this section, making it applicable to grand juries-. See 1984 Ariz. Sess. Laws Ch. 304, § 3.