LAW OFFICE OF TAMARA D. BROOKS-PRIMERA 2111 E. Baseline Suite A-4 Tempe, Arizona 85283 (602) 705-8890 Tamara D. Brooks-Primera Bar #011811 Attorney for Defendant Xxxx IN THE CITY OF PHOENIX MUNICIPAL COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF MARICOPA STATE OF ARIZONA, ) ) No. CR Plaintiff, ) ) MEMORANDUM IN SUPPORT ) OF DENIAL OF STATE'S ) REQUEST TO REOPEN ) CASE IN CHIEF. v. ) ) Xxxx, ) (Assigned to the Honorable ) MICHAEL CARROLL) Defendant. ) ) The defendant, by and through counsel undersigned, hereby submits this Memorandum, along with the attached authority, in support of his objection to the government's request to reopen its case in chief. RESPECTFULLY SUBMITTED this _____ day of November, 1998. LAW OFFICE OF TAMARA D. BROOKS-PRIMERA By Tamara D. Brooks-Primera MEMORANDUM OF FACTS AND AUTHORITIES FACTUAL BACKGROUND: A trial was held in this matter on November 17, 1998, in this division. Following the government's presentation of its evidence, it rested. The defense then made a Motion for Directed Verdict, pursuant to Rule 20 of the Arizona Rules of Criminal Procedure, based, in part, on the issue of identification of the alleged child victim in the order of protection. The Court denied the Motion, but made clear to the parties in its ruling that it believed that although the state would survive a directed verdict, it would not gain a conviction on its evidence. Based on this indication, along with the defense' own interpretation of the government's failure to prove its case, the defense chose not to put forth evidence and risk providing any missing elements for the state's case (The Court allowed counsel and Mr. Xxxx to step out of the room to discuss how best to proceed. They determined the government had not met its burden.). Mr. Xxxx then elected not to testify, or to call his witness that was present for the trial. The defense therefore rested on the State's evidence. In the meantime, the government, apparently also understanding the Court's indication of verdict, asked to present rebuttal evidence. When this request was denied, it asked to reopen. The defense objected and argued that the Court should not allow the allow the government to reopen, including that the Court did not have the discretion to so allow, because the defense had rested. The Court allowed counsel time to research the issues and to determine if any case law for its arguments existed. LEGAL ARGUMENT: The Court Has the Discretion To Allow The State To Reopen. Undersigned counsel has researched the case law and was unable to find any case law supporting the proposition that the Court does not have the discretion to allow the government to reopen after the Defense rests. Indeed, it is clear that the Court has such wide discretion that it may allow the government to reopen, even after closing arguments. State v. Walton, 159 Ariz. 571, 582-583, 769 P.2d 1017 (1989) cert. granted, affirmed on other grounds, 110 S.Ct. 49 (Within Court's discretion to allow State to reopen to admit weapon previously testified about during trial, but erroneously forgotten to admit. True even though both parties had given closing arguments); accord State v. Archer, 124 Ariz. 291, 603 P.2d 918 (App. 1979). It is not an abuse of discretion to allow such a reopening, even after the defense rests, so long as "the state acts in good faith, and the result does not prejudice the defendant." State v. Walton, 159 Ariz. at 582 (emphasis added). In the Walton case, the State referred to the weapon, laid the appropriate foundation for it and simply forgot to introduce the weapon itself into evidence. Id. The Arizona Supreme Court determined that it was simply a mistake of inadvertence and hence not in bad faith. Id. It also denied the defendant's claim that admitting the actual weapon at that point inflamed the jury and was prejudicial. Id. at 583. The jury, having already retired to deliberate, could not be affected by it. Id. Thus, it is clear that the Court has discretion with the inquiry, in exercising its discretion, being: 1. did the government act in bad faith and 2. is the defendant prejudiced by the attempt to reopen. It Would Be An Abuse of Discretion to Allow The State To Reopen. Mr. Xxxx submits that it would be an abuse of discretion to allow the government to reopen in the matter sub judice, based on the standards enunciated in Watson and its predecessor cases. The first question, that of government bad faith, is dealt with summarily. Mr. Xxxx does not suggest that the elements/facts supplied by the government's desired reopen "evidence" were withheld intentionally or improperly in this matter. There is clearly no attempt by the government to gain an advantage (a concern of the case law). Mr. Xxxx thus concedes that there was no bad faith. This leaves the Court to determine the second question of prejudice to the defendant. As is stated above, the defense decision to rest was based entirely on the government's failure to prove its case. This situation was obvious to both parties and the Court, or this issue would never have arisen. The law is clear, and well known to any litigant, that a defendant who supplies missing facts or elements from the government's case, during his defense case, has waived his right to complain of any error on appeal. State v. Nunez, 167 Ariz. 272, 806 P.2d 861 (1991). Mr. Xxxx, having made his Directed Verdict Motion (Rule 20) on the identification issues, would have waived any error had he supplied the missing elements during his case. Additionally, under Rule 804(b)(4) of the Rules of Evidence, a defendant can testify to the personal history, such as identity, of those with whom he is intimately acquainted: the exact element missing from the government's case. Mr. Xxxx, then, would most likely have supplied the missing elements/facts in the State's case. 17 A A.R.S., Rules of Evid., Rule 804(b)(4). Rather than do so, however, he refrained from "telling his side of the story" and rested on the State's evidence. Instructive in the case at bar is the seminal case, and still oft cited case (as recently as 1996), of State v. Cousins, 4 Ariz. App. 318, 420 P.2d 185 (1966). The Cousins case is much akin to this matter. In Cousins, the State's proof was different than anticipated. Based on this proof, the defense proceeded to discredit dates rather than go forth with its original defense. Id. at 324. The defendant also elected not to testify. Id. Following the defense case, the Court granted the state's motion to reopen. Id. The Court of Appeals held that allowing the state to reopen following a defendant's reliance on the state's failure to prove certain elements was an abuse of discretion. Id. This procedure unfairly prejudiced the defendant: The defendant was forced into a crucial tactical decision. He elected to proceed to discredit the State's witnesses as to the date of the events. We cannot speculate as to the decision which the defendant might have made had the correct dates been set forth in the State's case in chief. Id. The Cousins Court clearly evaluated when a defendant is forced to make a tactical decision by the state's proof, or lack of proof, proceeds to his detriment, including waiving his right to testify. Id. Its determination was that under these circumstances, unfair prejudice results and the Court abuses its discretion. Id. Mr. Xxxx's case is much like that of the Cousin defendant. The Court allowed he and his attorney a moment to discuss the proper course of action. Although both he and his witness were present and ready to testify, and would have (this Court needn't speculate), it was clear that the burden had not been met, both to counsel and from the Court's comments. This, combined with the legal requirement that one not "fill in the gaps" in the government's case if one wants to later appeal any issue of directed verdict, caused to defense to make a tactical decision to rest. The Cousins case, combined with the facts of this case, demonstrate that allowing the government to reopen would be an abuse of discretion. Mr. Xxxx lost his right to testify, compel witnesses on his behalf and generally present a case: all Constitutional rights guaranteed by the United States and Arizona Constitutions. The loss of such constitutional rights is undoubtedly unfair prejudice. CONCLUSION: Mr. Xxxx, therefore, respectfully asks the Court to deny the government's attempt to introduce "rebuttal" evidence by asking to reopen. The Court clearly having broad discretion in this area, Mr. Xxxx asks the Court to exercise that discretion and deny the government's motion. To do otherwise, Mr. Xxxx submits would be an abuse of discretion because of the unfair prejudice to him. RESPECTFULLY SUBMITTED this _____ day of November, 1998. LAW OFFICE OF TAMARA D. BROOKS-PRIMERA By Tamara Brooks-Primera Copy of the foregoing Motion mailed/delivered this _____ day of November, 1998, to: The Hon. Michael Carroll Judge of the Municipal Court City of Phoenix 400 N. 7th Street Phoenix, AZ 85007 City of Phoenix Prosecutor's Office 455 N. 5th Street Phoenix, AZ 85007 By Tamara D. Brooks-Primera