Daniel B. Treon - 014911 DANIEL B. TREON, P.C. 2302 North Third Street Phoenix, Arizona 85004 Telephone: (602) 258-5050 Fax: (602) 254-7337 Attorney for Defendant IN THE PHOENIX MUNICIPAL COURT STATE OF ARIZONA, COUNTY OF MARICOPA STATE OF ARIZONA, ) Case No. 88634761F ) 88634741F Plaintiff, ) ) DEFENDANT’S MOTION TO ) DISMISS ___________, ) ) Defendant, ) Request for Evidentiary Hearing ________________________________________) Division 11 Defendant, through undersigned counsel, for the reasons hereinafter set forth, requests that this matter be dismissed with prejudice. I. FACTS On March 15, 1996 Ms. __________, then seventeen years old, had a dispute with __________________________ at Ms. __________ apartment. The dispute was over mutual involvement with the same man. City of Phoenix police officers investigated, but did not encounter Ms. ____ at or around Ms. __________ apartment. One officer reports that he conversed by telephone with Ms. ____ five days later on the 20th of March, but Ms. ____ denies ever having been a party to such a phone call. The officers neither possessed nor determined Ms. ______ address on March 15th, but later indicated on a supplemental report generated after the alleged conversation on March 20th that her address was ________________, Phoenix, with no zip code or apartment listed. On March 21, 1996, the investigating officer wrote a supplemental report requesting that the State charge Ms. ____ with felony trespass and misdemeanor interference with judicial proceedings. Five months later, on August 14, 1996, a City of Phoenix prosecutor swore out a complaint against Ms. ____. On August 23, 1996, the State sent by certified mail a summons to the ________ address. ___________, Defendant ____________ fourteen-year-old sister-in-law, signed for the letter on August 29, 1996. The ________ address is ____________ husband’s mother’s address. ___________ was a resident of the ________ address, but in March 1996, _____ _____lived at _______________________________. __________ did not live at the ________ address in March 1996. Additionally, she moved to Michigan in June 1996. (See, copy of record showing that Ms. ____ received State assistance in Michigan beginning July 1, 1996, attached hereto as Exhibit 1). __________ never received notice of the complaint, did not appear at her arraignment, and a bench warrant issued on September 30, 1996. In August 1998, __________, while an apartment complex manager in Phoenix, called the police regarding a problem tenant. Police checked Ms. _______name for identification purposes, discovered the warrant, and advised Ms. _____of its existence. She denied having any knowledge of the warrant and underlying charges, and went with officers to the city court where she posted $400.00 bond. The police report indicates that the State had the following information about Ms. ____: social security number date of birth incorrect personal address in-laws’ address and phone number It appears from the court file and the State file that the State did nothing other than to mail the summons. Additionally, since this incident occurred over two years ago, witnesses who would have assisted Ms. ______ defense have faded memories. II. THE STATE VIOLATED MS. ______ PROCEDURAL RIGHT TO A SPEEDY TRIAL A. The State Failed to Exercise Due Diligence to Locate Defendant and Therefore All Time Since August 14, 1996 Should be Included in the Calculation of Rule 8 Time Limits. The State is required to exercise due diligence to locate a defendant, even though that defendant was not attempting to avoid apprehension or prosecution and was outside of the State for the purposes of the speedy trial rule. Snow v. Superior Court, 183 Ariz. 320, 903 P.2d 628 (App. 1995), Humble v. Superior Court, 179 Ariz. 490, 880 P.2d 629 (App. 1993.). The only exception to this rule is where a defendant voluntarily absconds from the jurisdiction, knowing that a trial is pending and scheduled in Justice Court. State v. Miller, 161 Ariz. 468, 778 P.2d 1364 (App. 1989). The relevant facts in Ms. ______ case are analogous to those in the Snow case. In Snow, defendant was arrested and booked on a criminal charge. After his release from custody, defendant moved to another State. Defendant was indicted approximately two months after his arrest, and summons was delivered by certified mail to the address he listed as his residence on the arrest/booking record, filled out at the time of his arrest. A ____________, whom defendant named in the arrest/booking record as his nearest relative/friend, signed the return receipt. Defendant failed to appear for his arraignment and a bench warrant issued Like Snow, the State had certain information about Ms. _____ available to it. This included her social security number, date of birth, and address and phone number of an in-law’s house. Snow requires the State to take some affirmative action in locating a defendant. As such, the State must do more than simply mail a summons by certified mail. In Ms. ______ case, the State did nothing after receiving its summons signed by a person other than __________. Having notice that ________ did not receive notice that the City of Phoenix had filed a complaint against her and that she would have to appear, the State had an affirmative duty to take additional steps in locating and providing notice of the prosecution to Ms. _____. Snow, 183 Ariz. at 325, 903 P.2d at 633. The State, however, did nothing. The State never followed up with telephone calls or other communication efforts to the ________ address. The State never attempted to locate Ms. _____by tracing her social security number; if it had, it would have found out that she was living in Michigan and receiving State assistance under the same name, social security and date of birth. See, Humble, 179 Ariz. at 495, 880 P.2d at 634, noting that the State could have located defendant’s address through tracing a social security number to defendant’s receipt of unemployment benefits. The State failed to attempt to locate Ms. ____ even though it had significant leads which would have lead them right to her. The court in Humble v. Superior Court, 179 Ariz. 490, 880 P.2d 629 (App. 1993) noted that the State had available to it four “significant investigative leads”, including (1) the name of defendant’s employer and that the employer was listed in the phone directory; (2) defendant’s father’s name and phone number; (3) a lack of an attempt for personal service during non-working hours between when defendant was first arrested on March 16, 1988 and when he moved in September 1988, and (4) defendant’s social security number. The court concluded: “On this record, we find no evidence that defendant attempted to avoid service in a way that would entitle the State to exclusion of this time under Rule 8.4(a). Nor, we conclude, do we find any reasonable evidence that the State exercised due diligence in attempting to locate defendant in light of the significant investigative leads that it possessed and ignored. Under these circumstances, we hold that the trial court abused its discretion by implicitly excluding this time under Rule 8.4(a) in denying defendant’s motion to dismiss the indictment for a violation of his rights to speedy trial under Rule 8.” In Ms. ______ case, the State had even more information available to it than in Snow and Humble, and yet undertook even fewer efforts to locate her. As such, the State violated Ms. ______ Rule 8 procedural rights. B. Effect of Rule 8 Violation: Constitutional Considerations Having concluded that the provisions of Rule 8 were violated in this case, the court must next determine the appropriate remedy. Rule 8.6 provides as follows: Violations. If the court determines after considering the exclusions of Rule 8.4, that a time limit established by Rule 8.2(a) . . . has been violated, it shall on motion of the defendant, or on its own initiative, dismiss the prosecution with or without prejudice. Generally, a trial court has discretion under Rule 8.6 to determine whether a dismissal is with or without prejudice. See State ex rel. DeConcini v. Superior Court, 25 Ariz.App. 173, 175, 541 P.2d 964, 966 (1975). However, our Supreme Court formerly construed the provisions of this rule strictly in the context of DUI cases, requiring dismissal with prejudice whenever a DUI case was not tried within 150-day limit. Hinson v. Coulter, 150 Ariz. 306, 311, 723 P.2d 655, 660 (1986). Hinson was recently overruled by State v. Mendoza, 170 Ariz.184, 823 P.2d 51 (1992), in which our Supreme Court abolished the absolute rule of dismissal with prejudice, and held that if a speedy trial violation occurs, the remedy is to be determined by the prejudice to defendant, on a case-by-case basis. Id. at 191, 823 P.2d at 58. The Mendoza court concluded that a defendant whose trial was “unreasonably delayed” had alternative remedies available under the pre-Hinson case of Oshrin v. Coulter, 142 Ariz. 109, 688 P.2d 1001 (1984): (1) the State’s evidence could be suppressed if the State’s procedure resulted in “a denial of fundamental fairness shocking to a sense of justice and denial of due process,” or (2) “if the delay between arrest and trial is so egregiously long that it violates due process, the DUI prosecution [179 Ariz. 416] against the defendant will be dismissed.” Mendoza, 170 Ariz. At 191-92, 823 P.2d at 58-59. Dismissal with prejudice is mandated if the defendant shows prejudice from the delay. Id., citing State v. Hannah, 118 Ariz. 610, 611, 578 P.2d 1039, 1040 (App. 1978). In determining under Mendoza and Oshrin whether any due process prejudice has resulted in this case, a recent decision of the United States Supreme Court in the analogous area of a criminal defendant’s sixth amendment rights to a speedy trial under the United States Constitution is instructive. See Doggett v. United States, --- U.S. ---, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). In Doggett, the Court recognized that four separate inquiries are required in determining when a speedy trial violation occurs: (1) whether delay before trial was uncommonly long; (2) whether the government or the criminal defendant is more to blame for that delay; (3) whether, in due course, the defendant asserted his right to a speedy trial; and (4) whether he suffered prejudice as the delay’s result. Id. at ---, 112 S.Ct. at 2690, citing Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). The first prong is a “trigger”; a defendant must assert that the delay between indictment and trial is “presumptively prejudicial”. Doggett, --- U.S. at ---, 112 S.Ct. at 2690. The court noted that lower courts have found delay “presumptively prejudicial” as it approaches one year. Id. at ----n. 1, 112 S.Ct. at 2691 n. 1. The presumption that delay in prosecution has prejudiced a defendant “intensifies over time.” Id. at ---, 112 S.Ct. at 2691. The Court reasoned: [W]e generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other barker criteria … it is part of the mix of relevant facts, and its importance increases with the length of delay. Id. at ----, 112 S.Ct. at 2693. The Court concluded that the government’s delay in prosecuting Doggett for eight and a half years as due to six years of the prosecutor’s “negligent” and “inexcusable” oversights in attempting to locate him. Thus, Doggett had shown adequate prejudice by the passage of time to be entitled to relief from prosecution. Id. at ----, 112 S.Ct. at 2694. “Presumptive prejudice” has been adequately established by the facts of Ms. Love’s case to entitle her to dismissal of the complaint with prejudice under the due process concept of Oshrin, Mendoza, and Rule 8.6. It would be fundamentally unfair to allow the State to proceed with this prosecution after a delay of more than two years when that delay is directly attributable to the State’s failure to exercise due diligence to locate defendant, during which time the availability of evidence, witnesses, and recollection has faded. III. CONCLUSION The State did not do one thing to give Ms. _____notice that it had filed a complaint against her, even though it had a plethora of information that would have lead it right to her. Dismissal is therefore warranted. The dismissal should be with prejudice since witnesses’ memories have faded and Ms. ______ ability to defend herself has been severely prejudiced. RESPECTFULLY SUBMITTED this 20th day of November, 1998. DANIEL B. TREON, P.C. By_______________________ Daniel B. Treon Attorney for Defendant Original of the foregoing hand delivered this 20th day of November, 1998, to: Division 12, Phoenix Municipal Court City of Phoenix 400 N. 7th Street Phoenix, Arizona 85006 City Prosecutor’s Office City of Phoenix 455 North Fifth Street Phoenix, AZ 85004 ___________________________