SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CR DT 11/18/2016 HONORABLE GEORGE H. FOSTER, JR.

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1 Michael K. Jeanes, Clerk of Court *** Filed *** SUPERIOR COURT OF ARIZONA HONORABLE GEORGE H. FOSTER, JR. CLERK OF THE COURT C. EWELL Deputy STATE OF ARIZONA SUSIE CHARBEL v. PHILIP MITCHELL BRAILSFORD (001) MICHAEL L PICCARRETA SVEN K BUDGE DAVID E WOOD BEN J MEISELAS UNDER ADVISEMENT RULING The Court took under advisement the matter of the Defendant s Motion for a New Finding of Probable Cause. The Court conducted its hearing and heard the arguments of counsel. The Court, pursuant to Rule 5.5, Rules of Criminal Procedure, has reviewed the transcripts of the Preliminary Hearing held before the Hon. Sam Myers sitting as a magistrate, along with the various briefs and memoranda filed by the parties on these issues. Based on the matters presented this Court finds as follows. In the defendant s motion he argues that the magistrate denied him a substantial right by failing to allow the actual testimony of the various witnesses referred to in the offer of proof made pursuant to Rule 5.3, Rules of Criminal Procedure. Specifically, he argues that the magistrate improperly precluded witnesses Doane, Jacobs and Kapelsohn. The defendant also alleges that the magistrate failed to consider and did not make specific findings as to the defendant s justification defenses. The defendant argues the magistrate used the improper standard in determining probable cause in light of the justification defenses, and that the defendant did not have the opportunity for a fair and complete preliminary hearing due to the magistrate s decision to limit witness testimony. Finally, the defendant argues that the state failed to produce any credible evidence of guilt at the proceeding in question. Docket Code 926 Form R000A Page 1

2 1. The Nature of the Preliminary Hearing. Under the law, a preliminary hearing is merely a procedure wherein the state is required to show probable cause for the courts to retain jurisdiction over the defendant and the defendant to be given an opportunity, if he desires, to show there is an absence of probable cause. State ex rel. Berger v. Jennings, 110 Ariz. 441, 520 P.2d 441 (1974). It is not a trial in the traditional sense, and although it must comport with the requirements of due process not all procedures for a trial have to be employed. Id. In support of his motion, the defendant cites many cases involving the procedures and requirements before a grand jury. The grand jury process, although similar in that its objective as in a preliminary hearing is to ultimately find whether probable cause exists, is a different procedure and not subject to all the same rules. In a preliminary hearing the Rules of Criminal Procedure clearly state the procedures to be undertaken by the magistrate along with the magistrate s powers. It provides in pertinent part: Rule 5.3. Nature of the preliminary hearing a. Procedure. The preliminary hearing shall be held before a magistrate who shall admit only such evidence as is material to the question whether probable cause exists to hold the defendant for trial. All parties shall have the right to cross-examine the witnesses testifying personally against them, and to review their previous written statements prior to such cross-examination. At the close of the prosecution's case, including cross-examination of prosecution witnesses by the defendant, the magistrate shall determine and state for the record whether the prosecution's case establishes probable cause. The defendant may then make a specific offer of proof, including the names of witnesses who would testify or produce the evidence offered. The magistrate shall allow the defendant to present the offered evidence, unless the magistrate determines that it would be insufficient to rebut the finding of probable cause. (emphasis added) 2. The Determination of Probable Cause The state produced a witness, Detective Sipe, who was the police officer who investigated the shooting for the Mesa Police Department. That witness offered testimony regarding the scope of the investigation, including a review of the video tape of the shooting. Detective Sipe gave testimony indicating that the procedure used by the defendant and his team were techniques he was not familiar with. He also testified as to alternative means for engaging and taking such a Docket Code 926 Form R000A Page 2

3 suspect into custody suggesting that the victim could have been taken into physical custody without resorting to the use of deadly force. The defendant had the opportunity and did in fact cross-examine the witness. The evidence was clear that the defendant shot the victim and as a result the victim died. The evidence suggested that the defendant shot the victim without proper justification and that the defendant did not act reasonably under the circumstances. At the conclusion of the state s case, the parties discussed the procedures under Rule 5.3, Rules of Criminal Procedure, and decided that the magistrate would consider the testimony of one live witness and the video footage of the incident and the other matters received in evidence by the magistrate. Transcript, p. 136, lines 9 through 25; pp , lines 1 through 10. The magistrate recessed to consider all the evidence and upon return found probable cause to believe that the defendant committed second degree murder. The magistrate then gave the defendant the opportunity to make his offer of proof as allowed by the rule. The defendant, by and through counsel, made an extensive offer of proof identifying four witnesses and as to each an extensive offer of their anticipated testimony. One witness, Sargeant Langley, was the only witness summoned by the defendant allowed to testify. Transcript, p. 150, lines 12 through 16. The magistrate considered the testimony which also included cross and re-direct examination and found that the testimony did not rebut the finding of probable cause. 3. The Determination that Certain Evidence would not be Presented In this case the magistrate followed the procedures set forth in Rule 5.3, Rules of Criminal Procedure. The defendant was afforded the opportunity to make his offer of proof through his counsel. The magistrate then allowed the defendant to present the evidence through one of the identified witnesses. It is clear that the magistrate did not believe, based on the offer of proof, that the other three witnesses testimony would be sufficient to rebut the finding of probable cause. It is noted that the offer of proof described testimony of the other witnesses that mirrored in large part the testimony of Sargeant Langley. In this regard the testimony of the other witnesses would be redundant and cumulative in respect of the officer s training and the description of the scene and the issue of justification, particularly in light of the presence of the video recordings of the shooting. The defendant cites to no reported case holding that a magistrate must hear from each and every witness who may testify at trial or who are described in the offer of proof. The rule states otherwise, clearly giving the magistrate discretion to limit the evidence where the magistrate determines, based on the offer of proof, that it would be insufficient to rebut the finding of probable cause. In this case the magistrate heard the proffer but declined to hear some of the live witness testimony. It has been held by the Arizona Supreme Court: Docket Code 926 Form R000A Page 3

4 * * * a magistrate conducting a preliminary hearing should be mindful that his duty is not to determine the ultimate guilt or innocence of a defendant, or determine the degree of the crime charged, but only to determine whether there is probable cause to believe defendant guilty of the offense charged, and leave to the trial tribunal the final determination of the application of the law to the facts and leave to the jury the question as to whether defendant is guilty of the offense charged or of an included offense. Application of Williams, 85 Ariz. 109, , 333 P.2d 280, Dodd v Bois, 88 Ariz. 401, 357 P.2d 144 (1960). The authorities clearly indicate that a preliminary hearing is not a trial for the determination of innocence or guilt. Inasmuch as nothing in the rule or the reported case law indicates the magistrate is required to hear from every witness identified in the offer of proof, this Court cannot find that the defendant was denied any substantial right nor did the magistrate violate any due process. The defendant did not object during the preliminary hearing to the magistrate s finding that three of the four proffered witnesses would not be allowed to testify, and nothing in the current motion indicates any other testimony would have been adduced that would afford the magistrate the opportunity to find probable cause did not exist. 4. Consideration of the Justification Defenses/Presentation of a Fair and Complete Defense. The defendant argues the magistrate failed to consider the defendant s various justification defenses. The motion does not cite to any part of the record where the magistrate made any indication that he would not or did not consider the justification defense. In fact, the record of the proceedings clearly indicates the magistrate did in fact frame that very issue. He stated:.the question is really his state of mind and whether or not there is any legal justification to his actions [?] So the question for the Court is would any of those witnesses testimony rebut the existence of probable cause that the defendant be held to answer for the charge. The Court finds that as to three of the four witnesses the evidence would be insufficient to rebut the finding of probable cause. Transcript of Proceedings, p. 150, lines 6 through 14. Clearly the Court decided to hear from one of the witnesses. A review of the transcript indicates that the witness chosen to testify addressed a number of issues. The witness was present at the time of the shooting and saw the material events. He testified to his training and to the training of the defendant. He testified to the facts that lead up to the shooting and those that might support a finding of justification under Docket Code 926 Form R000A Page 4

5 the appropriate statutes. He gave detailed testimony of how the defendant and the other officers planned the investigation of a possible crime and executed it. He gave his opinion as to whether he felt threatened based on the actions of the victim. And he testified as to what police officers, including the defendant, are trained to do in such situations as it pertains to use of force and other matters. The witness was subject to cross-examination by the state and the subject of use of force was discussed. The state asked questions that suggested, inter alia, that the defendant s actions may not have been reasonable because the victim may have been confused or unable to follow the commands of the police officers. The defendant s counsel had re-direct examination of the witness who testified to even more detailed descriptions of what took place at the scene. To a certain degree the testimony regarding the training received by the police officers including the defendant could be categorized as expert witness testimony as it is of the type that a lay person may not be aware of or understand. Based on the testimony and the offer of proof the anticipated testimony of the defendant s identified expert was consistent with that of Sargeant Langley. Suffice it to say the testimony of this witness was comprehensive of the event for which the defendant is charged. In light of the offer of proof made by the defense counsel, the additional witnesses, including the proffered expert witness, do not materially add to the justification defenses. Further, their testimony on training, use of force and police procedure by Officer Jacobs and Doane could be seen as cumulative for the purpose of determining probable cause. At the end of the witness testimony by Sargeant Langley no other witness testified. As noted above, no objection or any other record was made by the defendant regarding the decision by the magistrate not to call any of the other witnesses. The defendant cites Crimmins and Korzup 1 for the proposition that the defendant was denied a substantial right. In each of those cases the matter of probable was remanded because the grand jurors were not provided with the instructions on justification. This argument highlights the fact that grand jury proceedings differ from preliminary hearings. In the grand jury the appropriate instructions are read to the jurors at the outset of the convening of the grand jury and may be re-read if the grand jury requests it. Or, the prosecutor may rereread the instructions for each particular case. The law is well settled that the proper instructions must be provided to the grand jury. There is no such legal requirement in a preliminary hearing. The matter of probable cause in a preliminary hearing is decided by a magistrate who is a judicial officer and presumed to know the law and applies it. The grand jurors are not magistrates and are not presumed to know the law. Accordingly, the failure to provide the grand jurors with the law applicable to the facts in the case becomes the denial of a 1 Crimmins v. Superior Court, 137 Ariz. 39, 668 P.2d 882 (1983); Korzup v. Superior Court, 172 Ariz. 534, 838 P.2d 1295 (1992). Docket Code 926 Form R000A Page 5

6 substantial right. Not so in this case or any case involving a magistrate s finding of probable cause in a preliminary hearing. There is nothing in any reported case or the rules of criminal procedure indicating that the prosecutor is required to provide the applicable instructions on the law. Here the defendant did not request to the Court to consider all the statutes outlined in the motion to remand. There is no evidence that the magistrate did not consider any of the applicable statutes and the suggestion that the Court failed to do so is conjecture at best. The cases, Crimmins and Korzup, are inapposite. It is noted that prior to the preliminary hearing the defendant filed no less than three memoranda for the magistrate s consideration. At the close of the evidence the defendant s counsel offered a fourth memorandum for the magistrate s consideration and was given an opportunity to read and argue it which defendant s counsel declined to do. The law indicates that the magistrate is not required to seek trial memoranda or to consider them. As stated in Jennings: Because the preliminary hearing is necessarily a summary proceeding, it is not contemplated that the committing magistrate shall ask for and receive the briefs and memoranda on disputed legal points. This is for the Superior Court, on proper motion, as provided by the Rules of Criminal Procedure. The rules provide that the magistrate shall rule at the close of the prosecution's case, and we believe that a plain reading of the entire rule means that *443 **315 he must rule forthwith at the close of the prosecution's case. Id. 110 Ariz. at 442, 520 P.2d at 315. See also, Rule 5.3, Rules of Criminal Procedure. Nothing in the current motion indicates that the offer of proof made by defense counsel was deficient or that other testimonial evidence beyond that which was stated in the offer of proof would have been offered to the magistrate at the preliminary hearing. The magistrate did not interfere with the defendant s right to make the offer of proof. In this regard the record is complete as to the evidence the defendant wanted the magistrate to consider. This Court cannot say, and therefore does not find that the defendant was denied a substantial right or even denied the right to present evidence or that he was denied a fair and complete consideration of the finding of probable cause. The defendant cites State v Stefanik 2 for the proposition that a defendant is denied due process of law in a preliminary hearing if the magistrate refuses to consider his defenses. In Stefanik the Court found that the magistrate made no error. It noted that the defendant was given the full and fair opportunity to present his defense even though the magistrate believed one of the defenses would not overcome the decision to find probable cause. The magistrate was affirmed. In this Ariz. 466, 478 P.2d 90 (1970). Docket Code 926 Form R000A Page 6

7 case, the magistrate did not interfere with the defendant s presentation of the evidence. It is the form of the presentation of the evidence that the defendant complains of - an offer of proof versus live testimony. The implication is that the offer of proof was not enough and that there is some right to present the live witness. The law does not recognize such an absolute right and the magistrate has considerable discretion in this regard. Here the magistrate found it would not change his decision which he is authorized to do under Rule 5.3. The record indicates that the testimony presented was considered by the magistrate. From the ruling it appears the magistrate rejected the notion that the evidence in the offer of proof on justification, including the actual witness testimony, was sufficient to overcome the finding of probable cause. The defendant argues that the Court failed to make specific findings of fact and conclusions of law in support of its decision. Nothing in the rule and no legal authority cited in the motion indicates that such specific findings of fact are required or necessary. This Court will not read requirements into a rule that are not authorized or required by law. The original motion to remand filed by the defendant enumerates arguments including, that the Court failed to evaluate the state s burden to disprove the justification defenses beyond a reasonable doubt and that the state did not employ the proper legal standard in evaluating the justification defenses in light of certain precedent. The Supplemental Brief filed by the defendant does not indicate where in the record the magistrate failed to consider these things. The brief also fails to state what the proper legal standard should have been. As noted the law does not require the magistrate to hold a trial and make findings beyond a reasonable doubt. The brief cites Graham v Connor 3 as setting the standard for reasonable use of force by a police officer. The case has nothing at all to do with the conduct of a preliminary hearing. Rather the case was brought under 42 USC 1983 by the petitioner who was seeking damages in a civil case. The question in that case was what constitutional standard governs a free citizen s claim that law enforcement officials used excessive force in the course of making an investigatory stop or other seizure of a person. Id., 490 U.S. 386, 387, 109 S.Ct. 1865, Simply put it does not supply any relevant matter for consideration of the magistrate s duties in a preliminary hearing in the consideration of a justification defense. The defendant cites State v Anderson 4 for the proposition that it sets forth the proper legal standard in evaluating the justification defenses. In Anderson the issue before the Court was whether the court after a trial abused its discretion in failing to grant the defendant s motion for a new trial because a final legal instruction may have been faulty. The Court in that case found the instruction to the jury was a proper one. Anderson does not touch and concern the duties and the discretion of a magistrate in a preliminary hearing. The Court finds the case is not on point U.S 386, 109 S.Ct (1989) Ariz. 295, 428 P.2d 672 (1967) Docket Code 926 Form R000A Page 7

8 Further the matter of the instructions on the justification defenses are many and are set forth in the RAJIs that would be available to a judge who would be instructing a jury after the close of evidence in a trial. The magistrate is not required by law to make specific findings of fact and conclusions of law or state for the record each and every finding in respect of defenses offered at a preliminary hearing. And the magistrate is not required to instruct on the law on the record in open court. Here the magistrate recognized the existence of the facts that might support a justification defense and so stated on the record. He clearly did not ignore those defenses. The substance of the defendant s disagreement is that there was no statement on the record of the analysis of the magistrate in concluding that the offer of proof and the testimony of the live witness failed to overcome the finding of probable cause. The defendant s argument that the magistrate ignored exculpatory evidence must suffer the same fate. The implication is that the facts supporting the defendant s justification defense is the exculpatory evidence. The substance of the defendant s arguments that the magistrate ignored clearly exculpatory evidence is based on the assumption that because the defendant was trained to take certain action that his action in conformity with the training is exculpatory. But no law is cited to support that proposition. In fact the law recognizes that not all law enforcement training and the application thereof will pass legal muster. Cf State v. Stoll, 239 Ariz. 292, 370 p.3d 1130 (2016) (police officer s training regarding the interpretation and implementation of a statute not reasonable). In this matter the argument that the magistrate ignored exculpatory evidence is not supported by the record. No Credible Evidence of Guilt The defendant argues that the question of whether any criminal offense was committed turns upon the defendant s state of mind and his justification defenses. Supplement to the Motion, pp. 21 and 22. The Court believes the argument misstates the law and is incomplete. At the close of the preliminary hearing the magistrate is to determine whether probable cause existed to believe the crime charged was committed, not ultimate guilt. In this regard the state produced evidence in the form of an investigation by the Mesa Police Department. That evidence included testimony from the investigating officer who spoke to witnesses and reviewed the crime scene and a video tape of the shooting. From this testimony the magistrate found probable cause. The defendant does not challenge the sufficiency of the state s evidence or suggest any specific flaws in it. Rather the defendant chooses to attack the finding on the basis that the Court did not give enough credence to the justification defenses. While the evidence may include facts indicating justification, it is not the duty of the magistrate to make findings of guilt. Moreover, the magistrate is free to consider the justification evidence and find that it is insufficient to overcome probable cause. It has been held that in order for a magistrate properly to conclude Docket Code 926 Form R000A Page 8

9 there is probable cause defendant committed the offense for which he is charged, there must be * * * more evidence for, (rather) than against, defendant's guilt, * * * and there must exist such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused. * * * Thus, although the State need not, at a preliminary hearing, present as much proof as would be required to sustain a conviction * * *, it must do more than create a mere suspicion that defendant is guilty of the offense for which he is charged. Dodd v. Bois, supra. In this case it is clear the magistrate believed that given the totality of the circumstances and the testimony of all the witnesses, that the actions of the defendant gives a strong indication of the commission of a crime. And while there may be evidence of a justification defense, the magistrate rejected the notion that it was sufficient to overcome his finding of probable cause or that there was merely the suspicion of a crime. The state produced evidence of a shooting and a resulting death caused by the defendant. The state produced evidence suggesting that under the circumstances the shooting was not justified. The magistrate noted and the parties concede that at least one element is whether under the circumstances the shooting was reasonable. On this issue the parties disagree. This Court, having reviewed the entire transcript of the proceedings and the evidence presented cannot conclude based on that entire record that the magistrate erred in finding probable cause. The Court having considered the motion, the response, the arguments of counsel and the record finds the motion should be denied. IT IS SO ORDERED. DATE Hon. GEORGE H. FOSTER, JR. Docket Code 926 Form R000A Page 9