State v. DoolittleState v. Doolittle
- Reporters:
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- Before:
- Contreras
OPINION
CONTRERAS, Judge.This is an appeal from the trial court’s order granting appellee’s motion to dismiss an indictment and suppress grand jury testimony. The issues presented on appeal are:
1. Did the trial court err as a matter of law in determining that appellee was “a person under investigation” when she appeared and testified before the state grand jury on July 29, 1985?
2. Did the trial court err as a matter of law in suppressing the transcript of appellee’s perjured testimony and dismissing the indictment?
We conclude that the trial court did not abuse its discretion in determining that appellee was a person under investigation when she appeared and testified before the grand jury. We also conclude that the trial court did not err in suppressing the transcript or dismissing the indictment. Therefore, we affirm the trial court’s decision.
Appellee Rhonda Lee Doolittle (defendant) was charged by indictment on September 10, 1985, with six counts of penury allegedly committed while testifying before a state grand jury. On May 16, 1986, defendant moved to suppress the grand jury testimony and to dismiss the indictment for failure to comply with Rule 12.6, Arizona Rules of Criminal Procedure, and
FACTUAL BACKGROUND
The relevant facts follow, viewed in a light most favorable to sustaining the trial court’s decision. State v. Olivas, 119 Ariz. 22, 579 P.2d 60 (App.1978). Defendant was employed as a clerical worker in the office of a licensed physician. Her primary duty in the physician’s office was to process insurance claims for the physician’s patients. Defendant had been employed by the physician for twelve years, longer than any other employee in his office.
The Arizona Attorney General’s Office conducted an investigation into allegations of insurance fraud and illegal distribution of prescription drugs against defendant’s employer. In furtherance of the investigation, Special Agent Susan Yaglou, an employee of the Arizona Attorney General’s Office, conducted an undercover investigation of the physician’s business by obtaining employment as a receptionist at the physician’s office. During the course of her employment, Yaglou observed what she considered were improprieties in the physician’s practice and reported these to the Attorney General’s Office. On July 25, 1985, state grand jury subpoenas were served upon the physician’s office by the Attorney General’s Office. Subpoenas duces tecum were also issued for sixteen patient files. Yaglou’s identity as a special agent remained unknown to the physician and his employees. On July 26, 1985, Yaglou observed defendant and her employer engaging in what appeared to be an altering of files which were included in the files under subpoena.
On July 29, 1985, defendant appeared and testified before the state grand jury.
1
While defendant was informed that she must give truthful testimony under oath before the grand jury, she was not informed of the rights of a person under investigation by the grand jury to remain silent and to have counsel present to advise her while giving testimony. Rule 12.6, Arizona Rules of Criminal Procedure;
see also
MS. RIGGINS: Well, we’ll certainly take into account your explanation. But in general, tampering with physical evidence is a very serious offense and so any sort of tampering which would impair the validity of the evidence or conceal evidence of a crime would certainly be frowned upon, to say the least, by the grand jury and by the state and so you should be aware of that as well.
DOOLITTLE: Okay.
On September 10, 1985, the state presented evidence of perjury to the state grand jury. Special Agent Yaglou testified before the grand jury that she had seen evidence of tampering by Doolittle, the physician, and at least one other employee the day after the subpoenas had been served. The Assistant Attorney General assisting the grand jury made the following inquiry:
MS. RIGGINS: So by the time that Miss Doolittle testified on July 29,1985, had the investigation expanded to include possible allegations of tampering with physical evidence?
MS. YAGLOU: Yes.
Q. And was that with respect to patient files?
A. That’s correct.
After considering the matter, the grand jurors returned a true bill as to six counts of penury against Doolittle.
PERSON UNDER INVESTIGATION
In its minute entry of June 13, 1986, the trial court specifically found that defendant was a person under investigation, and that the state violated Rule 12.6 of the Arizona Rules of Criminal Procedure when it failed to inform her of her rights to remain silent or to have the assistance of counsel. The court noted that defendant had direct involvement in the acts under investigation, and that the grand jury investigated her role in obstructing justice and subjected her to potentially self-incriminating questions by focusing upon her acts of editing or changing subpoenaed files. The state argues that defendant was not a “person under investigation” within the meaning of Rule 12.6, Arizona Rules of Criminal Procedure, and
Both parties acknowledge that this question is a matter of first impression in Arizona and that, for all practical purposes, Rule 12.6, Arizona Rules of Criminal Procedure, and
Appearance of persons under investigation.
A person under investigation by the grand jury may be compelled to appear or may be permitted to appear before the grand jury upon his written request. Such person shall be advised of his right to remain silent and his right to have counsel present to advise him while he is giving testimony. If he is accompanied by counsel before the grand jury, counsel shall not attempt to communicate with anyone other than his client. Any communication or attempted communication shall result in counsel’s summary expulsion by the foreman from the grand jury session.
Evidence on behalf of persons under investigation.
The grand jurors are under no duty to hear evidence at the request of the person under investigation, but may do so. The person under investigation shall have the right to advice of counsel during the giving of any testimony by him before the grand jury, provided that such counsel may not communicate with anyone other than his client. If such counsel communicates with anyone other than his client, he may be summarily expelled by the court from the grand jury chambers. The grand jurors shall weigh all the evidence received by them and when they have reasonable grounds to believe that other evidence, which is available, will explain away the contemplated charge, they may require the evidence to be produced.
The state contends that defendant is not a person under investigation based upon federal and state cases, citing United States v. Ruffin, 575 F.2d 346 (2d Cir.1978); United States v. Anfield, 539 F.2d 674 (9th Cir.1976); Robinson v. United States, 401 F.2d 248 (9th Cir.1968); United States v. Luxenberg, 374 F.2d 241 (6th Cir.1967); United States v. Scully, 225 F.2d 113 (2d Cir.1955); People ex rel. Gallagher v. District Court, 198 Colo. 468, 601 P.2d 1380 (1979); People v. Spencer, 182 Colo. 189, 512 P.2d 260 (1973); Page v. Page, 235 Ga. 131, 218 S.E.2d 859 (1975); O’Neal v. State, 468 P.2d 59 (Okla.Crim.App.1970). Defendant responds by arguing that federal law is not dispositive in this matter because there is no federal equivalent to Rule 12.6, Arizona Rules of Criminal Procedure.
We note that the federal and state authorities cited by the state in this appeal are not particularly instructive or helpful. First, the case law refers to “potential defendants”, “putative defendants”, and “targets”, and not specifically to the Arizona
It must also be remembered that, even if the Assistant Attorney General advising the grand jury had no intent to seek an indictment against Doolittle, it was within the grand jury’s powers to request that an indictment be prepared. The power to initiate and control inquiries into public offenses rests with the grand jury and not with the prosecutor. The prosecutor’s duty is to assist the grand jury in its investigation; the prosecutor may not exercise dominion over those investigations by evading the grand jury’s will.
A motion to dismiss an indictment is addressed to the sound discretion of the trial judge.
State v. Good,
10 Ariz.App. 556, 460 P.2d 662 (1969). A reviewing court will not substitute its discretion for that of the trial court if there is any reasonable evidence to sustain the ruling below.
State v. Veatch,
132 Ariz. 394, 646 P.2d 279 (1982). Here, the trial court was specifically concerned that defendant, as well as the physician in question, stood in a position to be indicted by the state grand jury for alleged criminal offenses which were being considered. Special Agent Susan Yaglou’s testimony before the grand jury on September 10, 1985, makes it clear that she suspected defendant had tampered with evidence prior to July 29, 1985 (the date defendant testified), which would possibly subject defendant to prosecution under
INDICTMENT FOR PERJURY
Alternatively, the state argues that even if defendant was a person under in
SANCTION OF SUPPRESSION
In its reply brief, the state argues that even if the trial court was correct in sanctioning the state for violating Rule 12.6, Arizona Rules of Criminal Procedure, suppression was an unduly harsh sanction and not required under Arizona law.
We note that the’ issue of whether suppression was an appropriate remedy was not addressed in the state’s opening brief, and was not raised until the state filed its reply brief. While an appellant may properly reply to questions of law or fact raised by the appellee’s brief in its reply brief, Rule 31.13(c)(3), Arizona Rules of Criminal Procedure, an appellant is not entitled to raise issues for this court’s consideration for the first time in such a manner. State v. Blodgette, 121 Ariz. 392, 590 P.2d 931 (1979) (claims of error which defendant failed to argue as required by Rule 31.13(c)(l)(iv), Arizona Rules of Criminal Procedure, stating that opening brief shall include a concise argument containing the contentions of the party, were not entitled to consideration on appeal). Therefore, appellant has waived this argument on appeal.
Although the state did not properly raise the issue regarding the propriety of the sanction imposed, we are of the opinion that the state has failed to demonstrate that suppression was an inappropriate sanction for the trial court. The trial court generally has broad discretion to determine what sanction is appropriate for violations of the Arizona Rules of Criminal Procedure. See State v. Lukezic, 143 Ariz. 60, 691 P.2d 1088 (1984) (upholding imposition of continuance as appropriate sanction for discovery violations). The suppression of evidence obtained in violation of the defendant’s right to be informed of his privilege against self-incrimination and right to counsel constitutes an appropriate sanction which falls within the trial court’s broad discretion. The trial court did not abuse its discretion in determining that this was the appropriate sanction to impose under the attendant facts and circumstances.
For the foregoing reasons, the order of the trial court is affirmed.
GRANT, P.J., and FIDEL, J., concur.
Notes
. The court notes that a complete transcript of the grand jury proceedings on July 29, 1985 is not part of the record in this appeal; only a few excerpts from that transcript attached to the state’s motion for reconsideration are included in the record on appeal, in addition to the transcript of witness Doolittle’s testimony presented to the grand jury on September 10, 1985. To the extent that the transcript before this court is incomplete, we must assume any evidence not available on appeal supports the actions of the trial judge. State v. Kerr, 142 Ariz. 426, 690 P.2d 145 (App.1984).