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 May 14, 1996, Mr. Regan was at a bar in Phoenix where he began to converse with a Mr. James Bates. The two consumed many drinks together. Later, Mr. Bates called the police and accused Mr. Regan of stealing his car that night. The next day, police arrested Mr. Regan, and booked him into jail. Mr. Regan was released from custody approximately 18 hours later, and was told to report to the Northwest Phoenix Justice Court for further proceedings. Shortly after his release, he also went to the Maricopa County Pre-trial services agency. Mr. Regan appeared at the Northwest Phoenix Justice Court, but was advised that his charges were either “scratched” or “dropped” from that court. It appears from the court record that the case was then transferred to the City of Phoenix for misdemeanor prosecution. Eight days after Defendant’s arrest, a city of Phoenix agent signed a complaint on May 24, 1996. Another eight days later, a summons was issued on June 3, 1996 and on June 4, 1996 was sent by certified mail to Mr. Regan’s last known address, 7625 E. Camelback Road, #301B in the City of Phoenix. The arrest/booking record and the officer’s report indicate that Mr. Regan’s address was 7625 E. Camelback Road #310B in Scottsdale. The summons was returned to the City, stamped “unclaimed”. Additionally, the police report and arrest/booking record indicate Mr. Regan’s employer, the employer’s address, and his office phone number. After Mr. Regan reported to the Pre-Trial Services Agency, but before summons arrived at his address, Defendant moved to Tempe. Before changing addresses, Defendant advised the post office of his change of address, leaving therewith his new address in Tempe, Arizona. Based on these facts, at the time the summons was mailed the State had available to it the following information: Defendant’s employer’s name, address and phone number; Defendant’s social security number; Any information about the defendant’s address from Pre-trial Services Agency; Access to United States Post Office records regarding Defendant’s new address; Defendant’s roommate, Rick Burns, who also lived at 7615 E. Camelback Road; 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 Mr. Regan’s defense are not present in this jurisdiction. Also, as a result of the passage of more than two years, Mr. Regan has been unable to find additional witnesses and documentary evidence for his defense. II. THE STATE VIOLATED MR. REGAN’S PROCEDURAL RIGHT TO A SPEEDY TRIAL A. The State Failed to Exercise Due Diligence to Locate Defendant and Therefore All Time Since May 16, 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 for the purposes of the speedy trial rule. Humble v. Superior Court, 179 Ariz. 490, 880 P.2d 629 (App. 1993), Snow v. Superior Court, 183 Ariz. 320, 903 P.2d 628 (App. 1995). 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 Mr. Regan’s case virtually mirror those in the Humble case. In Humble, defendant was arrested on March 16, 1988 and booked on a criminal charge. Upon release from jail, he followed the instructions and contacted the justice court, only to learn that his charge had been scratched. After indictment on May 5, 1988, the Sheriff attempted service at defendant’s house without success. On June 6, 1988 summons was delivered by certified mail to the address defendant gave as his residence on the arrest/booking record, filled out at the time of his arrest. The post office returned the summons marked “unclaimed”. Although defendant had moved from his listed residence in September, 1988, his father remained at that residence and knew defendant’s whereabouts. Defendant never appeared, and a bench warrant issued. Like Humble, Mr. Regan gave the State his residence on the arrest/booking record he filled out at the time of his arrest. On that he listed his roommate, Rick Burns as his nearest relative. The state had available to it Mr. Regan’s employer’s name and phone number. Additionally, as in Snow v. Superior Court, Mr. Regan gave his forwarding address to the United States Post Office and had advised Pre-Trial Services of his change of address. The certified mail receipt came back to the City of Phoenix, stamped “unclaimed”, and a warrant issued. Snow requires the State to take some affirmative action in locating a defendant. As such, the State must do more than simply mailing a summons by certified mail. In Mr. Regan’s case, the State did nothing after receiving its summons marked “unclaimed”. Having notice that Mr. Regan did not receive notice that the City of Phoenix had filed a complaint against him and that he would have to appear, the State had an affirmative duty to take additional steps in locating and providing notice of the prosecution to Mr. Regan. Snow, 183 Ariz. at 325, 903 P.2d at 633. The State, however, did nothing. The State never contacted Rick Burns, the Post Office, or Pre-Trial Services. The state never attempted to locate defendant through his social security number and did not call Defendant’s employer. The record indicates that the State failed to undertake any investigation into Mr. Regan’s whereabouts. The court in Humble 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 Mr. Regan’s case, the state had even more information available to it than in Humble, and yet undertook even fewer efforts to locate Mr. Regan. As such, the state violated Mr. Regan’s 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, we 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, we find instructive 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. 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 Mr. Regan’s case to entitle him 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 Mr. Regan notice that it had filed a complaint against him, even though it had a plethora of information regarding his whereabouts. Dismissal is therefore warranted. The dismissal should be with prejudice since witnesses Mr. Regan knows about are no longer in this jurisdiction and Mr. Regan has no ability to locate any additional witnesses and/or documentary proof of his innocence. RESPECTFULLY SUBMITTED this 16th day of November, 1998. DANIEL B. TREON, P.C. By_______________________ Daniel B. Treon Attorney for Defendant Original of the foregoing hand delivered this 16th day of November, 1998, to: Division 12, Phoenix Municipal Court City of Phoenix 400 N. 7th Street Phoenix, Arizona 85006 City Prosecutor’s Office, Attn: Amy Bentzen City of Phoenix 455 North Fifth Street Phoenix, AZ 85004 ___________________________