Opinion
1 CA-CR 22-0115
11-01-2022
STATE OF ARIZONA, Appellee, v. JUAN ALFREDO ORNELAS LEAL, Appellant.
Arizona Attorney General's Office, Phoenix By Deborah Celeste Kinney Counsel for Appellee Law Office of Elizabeth M. Hale, Lakeside By Elizabeth M. Hale Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Yuma County No. S1400CR201901261 The Honorable David M. Haws, Judge.
Arizona Attorney General's Office, Phoenix
By Deborah Celeste Kinney
Counsel for Appellee
Law Office of Elizabeth M. Hale, Lakeside
By Elizabeth M. Hale
Counsel for Appellant
Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in which Judge James B. Morse Jr. and Judge Michael J. Brown joined.
MEMORANDUM DECISION
PERKINS, JUDGE.
¶1 Juan Alfredo Ornelas-Leal appeals his criminal convictions and sentences, challenging the superior court's denials of his motion to disqualify the prosecuting agency and request for a mistrial. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 We view the evidence in the light most favorable to upholding Ornelas-Leal's convictions and thus resolve all reasonable inferences against him. See State v. Davolt, 207 Ariz. 191, 212, ¶ 87 (2004).
I. Incident and Ornelas-Leal's Indictment
¶3 In July 2019, Ornelas-Leal and three friends - Angel, Danny, and Beatriz-planned an attack on Victim, who they believed "snitched" on one of their associates. Victim lived at his friend's house, where Angel also resided. Ornelas-Leal and Danny-who hid behind the front door, inside the house- ambushed Victim as he entered. Ornelas-Leal had a gun, and Victim struggled with him over it. Danny was inadvertently shot during the struggle. Angel shot Victim several times but did not kill him.
¶4 As Ornelas-Leal, Angel, and Beatriz prepared to take an injured Danny to the emergency room, Victim escaped and drove to a hospital where he was treated for multiple gunshot wounds. Victim was in a coma for several weeks after the shooting but ultimately survived.
¶5 The State charged Ornelas-Leal with two counts of attempted first-degree murder, four counts of aggravated assault, one count of misconduct involving weapons, one count of kidnapping, and one count of criminal street gang participation. The court later granted the State's motion to sever the misconduct involving weapons charge and its motion to dismiss the criminal street gang charge.
II. Disqualification Motion
¶6A week before trial, the State sought to prevent Ornelas-Leal from impeaching Victim with evidence of Victim's then-pending felony charges before the Yuma County and Maricopa County Superior Courts. The State argued evidence related to Victim's open cases was inadmissible under Arizona Rule of Evidence 609 because there were no convictions. In response, Ornelas-Leal moved to disqualify the entire Yuma County Attorney's Office ("YCAO"), arguing YCAO's concurrent prosecutions of him and Victim created an appearance of impropriety because Victim might "alter his testimony to help YCAO secure [Ornelas-Leal's] conviction to obtain a more favorable outcome in [Victim's] own cases." Ornelas-Leal also claimed the State's delay in prosecuting Victim's cases-which were filed "far before Mr. Ornelas-Leal was indicted" -" prompted] legitimate concern over the motivations behind [the delay]," particularly when YCAO "mov[ed] to preclude any testimony regarding [Victim's] four [pending] cases because there are no convictions."
¶7 The State argued a different YCAO prosecutor was handling Victim's pending cases and Victim's attorney had been present during all conversations between the State and Victim regarding Ornelas-Leal's charges. The State also argued there was no deal in exchange for testimony when the police interviewed Victim post-shooting.
¶8 The State cited several factors to explain the delay in Victim's prosecution: Victim was rehabilitating from his gunshot wounds; the superior court suspended trials due to the pandemic; Victim's attorney experienced health issues; and Victim still had an open case in Maricopa County. The State argued Ornelas-Leal's disqualification motion constituted harassment because he filed the motion six days before trial, despite knowing about Victim's open cases long before then, and no new facts existed to justify the motion. The superior court agreed with the State and denied Ornelas-Leal's motion, finding that disqualification would delay trial "six to nine months." The court concluded Ornelas-Leal identified only "speculative harm," and there were "other legitimate, nonsuspicious reasons" for the delay in prosecuting Victim's case. The court ultimately allowed Ornelas-Leal to introduce at trial the nature of Victim's pending charges, including Victim's potential prison term of more than 50 years.
¶9 On the second day of trial, Ornelas-Leal renewed his disqualification motion, arguing the State violated its disclosure obligations under Arizona Rule of Criminal Procedure ("Rule") 15.1 (State's Disclosures) and Brady v. Maryland, 373 U.S. 83 (1963) (prosecutors must disclose materially exculpatory evidence to the defense). Ornelas-Leal explained that after jury selection began, the State disclosed purportedly exculpatory evidence, including recorded police interviews with Victim's mother and Danny's mother and a police report documenting one of Victim's open cases.
¶10 In her interview with the detective, Victim's mother reported that Victim told her he shot someone - presumably referring to Danny - on the night of the incident. This information, Ornelas-Leal argued, was "clearly exculpatory," and thus in violation of the Brady rule, as it "tends to negate [Ornelas-Leal]'s guilt" and "tends to show that [Victim] actually shot at someone."
¶11 Ornelas-Leal further argued: this information "goes into [Victim's] motivation to lie, somebody else was shot, and . . . it's our position that [Victim] shot first." Victim's mother also told the detective she was worried about whether a warrant would issue for Victim's arrest in his upcoming cases, to which the detective responded she need not worry because he had "already talked to the prosecutor." Ornelas-Leal argued the detective's statement to Victim's mother constituted a "clear implied promise" suggesting YCAO entered into some undisclosed arrangement with Victim.
¶12 The newly disclosed police report revealed: Victim drove a stolen car on the day of the incident; he attempted to buy guns and drugs around the time of the shooting; and he fled from the police the day before. Ornelas-Leal asked the court to declare a mistrial or dismiss the charges based on the late disclosure, explaining he did not seek preclusion because "[these are] things we want in" evidence.
¶13 The State replied, and Ornelas-Leal acknowledged, the interview with Victim's mother was summarized in a timely disclosed police report, which included the statement about Victim shooting someone. The State also clarified that the detective's conversation with the prosecutor was simply about whether Victim could attend hearings in his open cases, given his medical condition.
¶14 The superior court determined the State committed a Rule 15.1 infraction because of the late disclosure, but not a Brady violation. The court concluded the State did not act in bad faith and denied Ornelas-Leal's disqualification, dismissal, and mistrial motions. The court granted Ornelas-Leal's request to present the late-disclosed information at trial. And, as a Rule 15.7(c) sanction, the court permitted Ornelas-Leal to introduce extrinsic evidence if Victim denied making certain statements.
III. Late Disclosure and Victim's Testimony
¶15 On the fourth day of trial, Ornelas-Leal raised another disclosure issue. During a recess, the State gave Ornelas-Leal video recordings of police interviews with Victim and Danny. The State claimed the late disclosure was an unintentional oversight and explained a timely disclosed police report recounted the same interview with Victim. Ornelas-Leal did not request a sanction. Finding no Rule 15.1 violation, the court allowed Ornelas-Leal time to review the recording before Victim testified.
¶16 Victim voluntarily testified and was granted use immunity, but the State did not offer him any promises of leniency regarding his pending charges in exchange for his testimony. Victim testified he had about five or six prior felony convictions and four open cases in Yuma County. He admitted that on the day of the shooting, he drove home in a stolen car while high on Fentanyl. He also admitted to discarding "a bunch of pills" upon arrival at the hospital, and that he previously bought and sold guns and pills in 2019.
¶17 On cross-examination of Victim, Ornelas-Leal asked if Victim was aware he faced more than 50 years in prison for his pending charges. Victim stated he was aware he could go to prison but did not realize he faced "that much time." Victim acknowledged that YCAO was prosecuting him and asserted there were no deals made with the office in exchange for his testimony.
IV. Conviction
¶18 In closing argument, defense counsel urged the jury to consider Victim's pending charges in reaching their verdicts. The jury found Ornelas-Leal guilty as charged on counts one and two (attempted first degree murder), three (aggravated assault), five (aggravated assault with a deadly weapon), and seven (misconduct involving weapons). The jury also found him guilty of the lesser-included offenses of misdemeanor assault on counts four (aggravated assault) and six (aggravated assault with a deadly weapon). The superior court sentenced Ornelas-Leal to an aggregate prison term of 31.5 years. This timely appeal followed, and we have jurisdiction under Ariz. Const. art. VI, § 9; A.R.S. §§ 12-120.21(A)(1), 13-4031, 13-4033(A)(1).
DISCUSSION
I. Motion to Disqualify YCAO
¶19 Ornelas-Leal argues the superior court improperly denied his motion to disqualify YCAO. We review its ruling for an abuse of discretion. State v. Martinez, 230 Ariz. 208, 220, ¶ 64 (2012); see Amparano v. ASARCO, Inc., 208 Ariz. 370, 376, ¶ 19 (App. 2004) ("We will not find an abuse of discretion if a reasonable basis exists for the trial court's ruling.").
¶20 Arizona courts generally consider four factors in deciding whether to grant a request to disqualify opposing counsel: (1) whether the motion was made for harassment purposes; (2) whether the moving party will be damaged if the motion is denied; (3) whether adequate alternative solutions exist, or if disqualification is the least damaging option; and (4) whether the risk of public suspicion of impropriety outweighs the benefits the opposing party will receive from continued representation. Gomez v. Superior Court, 149 Ariz. 223, 226 (1986); see also State v. Marner (RPI Goldin), 251 Ariz. 198, 200, ¶ 11 (2021) (applying the Gomez factors when a criminal defendant seeks disqualification of a prosecutor's office based on the appearance of impropriety). The moving party carries the burden to show why disqualification is required. Alexander v. Superior Court, 141 Ariz. 157, 161 (1984). "Only in extreme circumstances" should one party be allowed to interfere with the other party's attorney-client relationship; thus, courts must "endeavor to reach a solution that is least burdensome upon the client." Id.
¶21 The superior court reasonably refused to disqualify YCAO. Based on the timing of Ornelas-Leal's motion, the first Gomez factor weighs against disqualification. Despite receiving authorization in January 2020 to review Victim's criminal history, Ornelas-Leal did not seek disqualification until a few days before trial in September 2021. Given these circumstances, and the foreseeable delay after a transfer of the case to another prosecuting agency, the court reasonably concluded Ornelas-Leal made his motion for harassment purposes. See Gomez, 149 Ariz. at 226 (considering "inconvenience, delay and additional costs" under the first factor). We find no abuse of discretion.
¶22 The second and third Gomez factors - risk of harm to Ornelas-Leal and availability of alternative solutions - likewise support the superior court's ruling. Allowing the jury to learn the nature of Victim's pending cases and his prison exposure ensured Ornelas-Leal could thoroughly challenge Victim's credibility while avoiding significant delay and interfering with the State's choice of counsel. And a different YCAO prosecutor handled Victim's pending cases. The record supports the conclusion that Ornelas-Leal did not suffer harm from the concurrent prosecutions.
¶23 Regarding the fourth Gomez factor, there was nominal risk the public would perceive YCAO's concurrent prosecutions as improper. The jury heard the circumstances surrounding Victim's pending charges. The benefits received by the State's continued representation by YCAO outweighs any alleged threat of public suspicion by Ornelas-Leal.
¶24 Ornelas-Leal asserts: "had the prosecution not suppressed the evidence related to the police reports and the interviews with [Victim], Appellant would have had sufficient opportunity to investigate these issues prior to trial and impeach [Victim] where relevant." But Ornelas-Leal fails to identify any lost investigation opportunity caused by the late disclosure; he also fails to explain what additional impeachment evidence he would have gathered.
¶25 We conclude Ornelas-Leal's complaints amount to "unfounded allegations of harm or a remote appearance of impropriety alone" and thus are insufficient to carry his burden. Burch & Cracchiolo, P.A., v. Myers, 237 Ariz. 369, 378-79, ¶ 32 (App. 2015); see Gomez, 149 Ariz. at 225 (explaining disqualification based on the appearance of impropriety is not required when "the conflict is so remote that there is insufficient appearance of wrongdoing"). We find no abuse of discretion.
II. Motion for Mistrial
¶26 Ornelas-Leal argues the superior court erroneously denied his mistrial motion. We review the court's choice of disclosure-violation sanction for an abuse of discretion. State v. Moody, 208 Ariz. 424, 454, ¶ 114 (2004); see also State v. Jessen, 130 Ariz. 1, 4 (1981) (noting Rule 15.1 obligations are broader than Brady requirements). In our review, we "grant considerable deference to the trial court's perspective and judgment." State v. Meza, 203 Ariz. 50, 55, ¶ 19 (App. 2002). Constitutional claims are reviewed de novo. State v. Sanders, 245 Ariz. 113, 132, ¶ 89 (2018); see also Jessen, 130 Ariz. at 4 (explaining Brady violations deny defendants due process).
¶27 As an initial matter, Ornelas-Leal contends the superior court improperly denied his request to continue the trial as a late-disclosure sanction. But the record shows he expressly told the court "the only two" Rule 15.7(c) sanctions he sought were dismissal or a mistrial. Because Ornelas-Leal neither provides a record citation showing a requested continuance nor offers any argument to support this claim, he has waived this issue. See State v. Burns, 237 Ariz. 1, 17, ¶ 50 n.5 (2015). Because Ornelas-Leal does not challenge the denial of his dismissal request, we do not address it. See id.
¶28 The purpose of Rule 15.1 is "to give full notification of each side's case-in-chief so as to avoid delay and surprise at trial." State v. Armstrong, 208 Ariz. 345, 353, ¶ 38 (2004) (citation omitted). Rule 15.7 authorizes the imposition of disclosure-violation sanctions, including the declaration of a mistrial. In deciding what sanction to impose, courts consider "the vitality of the evidence to the proponent's case; the degree to which the evidence or the sanctionable conduct has been prejudicial to the opposing party; whether the sanctionable conduct was willful or motivated by bad faith; and whether a less stringent sanction would suffice." State v. Ramos, 239 Ariz. 501, 504, ¶ 9 (App. 2016) (citation omitted).
¶29 A sanction must be proportional to the violation and "have a minimal effect on the evidence and merits of the case." State v. Payne, 233 Ariz. 484, 518, ¶ 155 (2013) (quotation omitted). "A declaration of a mistrial is the most dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted." State v. Adamson, 136 Ariz. 250, 262 (1983).
¶30 Ornelas-Leal cannot show prejudice from the untimely disclosure because the superior court granted his request to introduce the information. See State v. Martinez-Villareal, 145 Ariz. 441, 448 (1985) ("In order for a reviewing court to find an abuse of discretion, appellant must demonstrate that he suffered prejudice by nondisclosure."). Nor can he claim surprise when much of the withheld evidence was cumulative to information he had received from timely disclosure. See State v. Bracy, 145 Ariz. 520, 529 (1985) (finding no reversible error in the State's failure to disclose "merely cumulative" evidence). We defer to the superior court's view of the prosecutor's motives and credibility in finding an absence of bad faith, State v. Martinez, 230 Ariz. 208, 215, ¶¶ 30-31 (2012), and Ornelas-Leal does not challenge this finding on appeal. The court's sanction did not interfere with Ornelas-Leal's attack on Victim's credibility. We find no abuse of discretion.
III. Brady Violation
¶31 Ornelas-Leal fares no better with his Brady claim. When previously undisclosed exculpatory information emerges at trial and is presented to the jury, there is no Brady violation. Jessen, 130 Ariz. at 4; see also United States v. Gordon, 844 F.2d 1397, 1403 (9th Cir. 1988) ("Brady does not necessarily require that the prosecution turn over exculpatory material before trial. To escape the Brady sanction, disclosure must be made at a time when disclosure would be of value to the accused."). "This is true even though the pretrial non-disclosure may have affected appellant's trial preparation and strategy." Jessen, 130 Ariz. at 4.
¶32 To the extent Ornelas-Leal elected not to introduce some of the information, the decision does not convert the belated disclosure into a Brady infraction. See id. ("The test for a Brady violation is whether the undisclosed material would have created a reasonable doubt had it been presented to the jury."). Because Ornelas-Leal received and made effective use of the disputed material at trial, the State's tardy disclosure did not violate Brady.
CONCLUSION
¶33We affirm Ornelas-Leal's convictions and sentences.