Opinion
No. 1 CA-CR 14-0021 No. 1 CA-CR 14-0022 No. 1 CA-CR 14-0023
04-02-2015
STATE OF ARIZONA, Appellee, v. VINCE ROBERT DI JULIO, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Craig W. Soland Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Cory Engle Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
Nos. CR2011-134060-001, CR2011-134469-001, CR2013-418836-001
The Honorable Hugh E. Hegyi, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Craig W. Soland
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Cory Engle
Counsel for Appellant
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Maurice Portley joined. THOMPSON, Judge:
¶1 Vince Robert Di Julio (Defendant), appeals from his conviction and sentence on one count of third degree burglary, a Class 4 felony. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
We view the evidence in the light most favorable to sustaining the conviction and resolve all reasonable inferences against Defendant. State v. Karr, 221 Ariz. 319, 320, ¶ 2, 212 P.3d 11, 12 (App. 2008) (citation omitted).
¶2 On the morning of Sunday, April 28, 2013, the cleaning crew at an office building in Mesa heard footsteps and voices that seemed to be coming from above them, as well as the sound of items being dragged across the roof of the building. The cleaners also noticed an open panel to electrical equipment in the kitchen and unusual wood pallets and scaffolding that were vertically stacked against the outside fence and wall of the building. The cleaners called the police, who responded immediately and surrounded the building. Police officers discovered Defendant on the roof of the building and took him into custody. Police officers also found approximately eight pieces of copper piping ranging in size from a foot to ten feet that had been strewn about the roof. The copper piping appeared to have been broken from the building's air conditioning units. Additionally, a hatch leading from the roof into the building was pried open.
¶3 The State charged Defendant with one count of burglary in the third degree, a class 4 felony. At trial, Defendant testified that he was on the building with an acquaintance to use water to get cleaned up, and denied breaking or attempting to take the copper piping. Three Mesa police officers testified that when they took Defendant into custody he appeared extremely dirty and not wet; there was no water found under the broken pipes or other evidence that someone had attempted to shower on the roof; there were no cutting tools found on the roof or in Defendant's possession; and no other unauthorized individuals were located in or around the building. Additionally, Officer Pascarella further testified that he previously investigated a number of cases involving the theft of copper piping and had prior work experience that involved cutting and breaking metal pipe. Officer Pascarella opined that the copper piping on the roof of the Mesa building appeared to have been "bent and worked back and forth and broken into pieces" rather than cut by any kind of cutting tool.
¶4 The jury found Defendant guilty of the offense as charged, and the court sentenced Defendant to a presumptive sentence of 4.5 years imprisonment with 232 days presentence incarceration credit. Defendant timely appealed. This court has jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003), and 13-4033(A)(1), (4) (Supp. 2013).
DISCUSSION
¶5 Defendant argues that the trial court erred by refusing to impose the sanction of preclusion after the State failed to timely disclose Officer Pascarella's expert testimony on how the copper pipes had been broken. We review a trial court's decision to admit or exclude evidence for an abuse of discretion. State v. King, 213 Ariz. 632, 635, ¶ 7, 146 P.3d 1274, 1277 (App. 2006) (citation omitted). The decision whether to impose a sanction for a discovery violation and the choice of the appropriate sanction to impose are matters well within a trial court's discretion. See State v. Moody, 208 Ariz. 424, 457, ¶ 135, 94 P.3d 1119, 1152 (2004); State v. Reinhardt, 190 Ariz. 579, 586, 951 P.2d 454, 461 (1997); see also Ariz. R. Crim. P. 15.7. We will not overrule a trial court's decision on the choice of sanction absent a showing of prejudice. State v. Tucker, 157 Ariz. 433, 439, 759 P.2d 579, 585 (1988).
¶6 Due process requires that the State disclose material evidence in a timely manner. State v. Gulbrandson, 184 Ariz. 46, 63, 906 P.2d 579, 596 (1995). One of the purposes of timely disclosure is to avoid undue delay and surprise. State v. Stewart, 139 Ariz. 50, 59, 676 P.2d 1108, 1117 (1984). If a court determines a disclosure violation merits sanctions, however, the trial court should seek to apply sanctions that affect the evidence at trial as little as possible. State v. Roque, 213 Ariz. 193, 210, ¶ 50, 141 P.3d 368, 385 2006); see also State v. Schrock, 149 Ariz. 433, 436-37, 719 P.2d 1049, 1052-53 (1986) (noting that "the Rules of Criminal Procedure are designed to implement, and not to impede, the fair and speedy determination of cases"). As such, the preclusion of evidence should rarely be invoked as a sanction for a discovery violation. State v. Towery, 186 Ariz. 168, 186, 920 P.2d 290, 308 (1996). Further, "[b]efore sanctioning the offering party, the court should consider (1) the importance of the evidence to the prosecutor's case, (2) surprise or prejudice to the defendant, (3) prosecutorial bad faith, and (4) other relevant circumstances." Id. (citation omitted).
¶7 Here, the procedural history shows neither an abuse of discretion by the trial court, nor that Defendant suffered any prejudice from the late disclosure. On the day before trial, Defendant filed a motion in limine seeking to preclude the State from offering expert testimony on how the copper piping was disassembled. Defendant acknowledged that based on the pre-trial interview of Officer Pascarella and the review of his police report, he was aware of the Officer's opinion that the copper piping had been broken by hand rather than cut with any kind of tool. Nonetheless, Defendant argued that because the State failed to properly notice any of its witnesses as experts as required by Rule 15.1(b)(4) of the Arizona Rules of Criminal Procedure, all opinion testimony as to how the copper piping was disassembled should be excluded from trial.
Rule 15.1 of the Arizona Rules of Criminal Procedure requires the State to disclose the names and addresses of experts who have examined evidence in a case and the results of scientific tests that have been completed within thirty days after arraignment. Ariz. R. Crim. P. 15.1(b)(4), (c)(1).
¶8 The Court agreed that Officer Pascarella's testimony would be an expert opinion subject to Rule of Evidence 702, and as such, should have been properly noticed. However, the court also agreed with the State's argument that because Officer Pascarella stated in his disclosed police report that the copper piping appeared to have been bent and worked back and forth and broken into pieces, the State was entitled to introduce that evidence through the Officer's testimony. Thus, to remove any possible prejudice from the late disclosure of Officer Pascarella's expert opinion, the court granted defense counsel the opportunity to again interview Officer Pascarella as to the specifics of his testimony. Additionally, the trial court informed Defendant that because he still had several business days before presenting his case, and "[t]he degree of expertise that the State is describing is fairly minimal, . . . [the court was] inclined to think that you could probably find someone to come in and testify as to how [the copper piping was] cut and not bent or whatever you think the situation might be in that period of time." Furthermore, the court held a "Daubert hearing" prior to finding that Officer Pascarella was qualified to testify as an expert under Rule 702.
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
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¶9 Defendant was aware from the State's notice of disclosure that Officer Pascarella would testify. In addition, Defendant knew what Officer Pascarella's testimony would be at least a week prior to trial through his pre-trial interview and the disclosed police report. Therefore, Defendant cannot claim surprise or prejudice by the late disclosure of Officer Pascarella's expert opinion testimony. See State v. Armstrong, 208 Ariz. 345, 354, ¶ 43, 93 P.3d 1061, 1070 (2004) (finding no surprise or prejudice where defendant was aware of witness from disclosure and knew what testimony would be through previously provided copies of post-arrest statements). In addition, the trial court granted Defendant the opportunity to interview Officer Pascarella for a second time during the trial. See State v. Paxton, 186 Ariz. 580, 587, 925 P.2d 721, 728 (App. 1996) (stating that even when a witness is not timely disclosed, the trial court does not abuse its discretion in denying a motion to preclude the witness so long as the defendant had the opportunity to interview the witness before testifying); State v. Tyler, 149 Ariz. 312, 315, 718 P.2d 214, 217 (App. 1986). Given the absence of any showing that the late disclosure resulted from bad faith on the State's part or that Defendant suffered undue prejudice, there was no abuse of discretion in permitting the testimony.
¶10 Defendant also argues that the trial court abused its discretion in denying his mid-trial request for a continuance in order to have additional time to secure a rebuttal expert witness. Rule 8.5(b), Arizona Rules of Criminal Procedure, provides that "[a] continuance of any trial date shall be granted only upon a showing that extraordinary circumstances exist and that delay is indispensable to the interests of justice." The grant of a continuance is an exercise of the sound discretion of the trial court and will not be disturbed unless (1) the trial court clearly abused its discretion in denying the motion, and (2) prejudice resulted. State v. Amarillas, 141 Ariz. 620, 622, 688 P.2d 628, 630 (1984) (citation omitted).
¶11 We find no abuse of discretion in this case. In its denial of Defendant's mid-trial request for a continuance, the trial court observed that Defendant had "known for [six days] that there was a possibility that Officer Pascarella was going to be allowed to testify that the pipe was broken by bending and not by cutting. Again, it's not a very complex analysis." Defendant does not argue that the disclosure tardiness prevented him from securing a rebuttal expert witness, nor does Defendant assert that he ever attempted to retain a rebuttal expert witness. Moreover, Defendant objected to the State's earlier request for a continuance in order to obtain a different expert witness, stating "[w]e are ready to go." Consequently, under the circumstances of this case, the trial court did not abuse its discretion in denying Defendant's request for a continuance.
CONCLUSION
¶12 For the foregoing reasons, we affirm Defendant's conviction and sentence.