                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                      DENNIS LEE UPTAIN, Appellant.

                             No. 1 CA-CR 17-0020
                                 FILED 3-6-18


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-133116-001
               The Honorable David O. Cunanan, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

Janelle A. McEachern Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellant
                             STATE v. UPTAIN
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Paul J. McMurdie joined.


C A M P B E L L, Judge:

¶1            Dennis Lee Uptain appeals the superior court’s denial of his
request for disclosure of various police officers’ “background information.”
For the following reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND1

¶2             On an evening in July 2015, Tempe Police Officers Dunn and
Torres were on bike patrol. Uptain, walking in the bike lane, approached
the officers yelling about how he needed to speak with them. Uptain made
complaints about his past interactions with police officers, but told Dunn
and Torres there was nothing they could do for him. Torres repeatedly
asked Uptain not to walk in the bike lane, as it was a lane of traffic. Uptain
walked away, continuing to yell and remaining in the bike lane for
approximately a block and a half.

¶3            The officers decided to issue Uptain a citation and
approached him, but Uptain began entering lanes of traffic, forcing at least
one vehicle to apply its brakes. Both officers repeatedly asked Uptain to
step back onto the curb, but Uptain refused to comply and remained in
either the lane of traffic or the bike lane. Uptain then took an “aggressive
stance” toward the officers, “similar to . . . a boxer stance with a strong foot
forward and both hands clenched in a fist.” Officer Dunn retrieved his taser
from his vest as Officer Torres approached Uptain from the rear in an
attempt to detain him. Officer Torres first employed a wrist-lock maneuver
to gain control of Uptain; when that failed, Officer Torres attempted a seat-
belt technique, grabbing hold of Uptain’s upper body. That maneuver also
failed to subdue Uptain, who spun away from Officer Torres, leading them
both further into the lanes of oncoming traffic.



       1 “We view the evidence and all reasonable inferences therefrom in
the light most favorable to sustaining the jury’s verdicts.” State v. Miles, 211
Ariz. 475, 476, ¶ 2 (App. 2005).


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                            STATE v. UPTAIN
                           Decision of the Court

¶4             At that point, Officer Dunn deployed his Taser, causing
Uptain to drop to his backside in a seated position. Standing over him,
Officer Torres repeatedly told Uptain to roll over and place his hands
behind his back. Uptain did not comply with the order and instead swung
his closed fists up at Officer Torres, grabbed his vest, and attempted to pull
him down to the ground. Officer Torres punched Uptain in the face twice,
and then backed away. Officer Torres again instructed Uptain to roll over
and place his hand behind his back, and this time Uptain complied. Officers
Dunn and Torres handcuffed Uptain and moved him out of the lanes of
traffic and onto the sidewalk as more officers arrived at the scene. Officer
Torres stepped away but Uptain continued to yell at him, challenging him
to a fight and threatening to sue him.

¶5            Uptain was indicted with one count of aggravated assault
against a peace officer, a class 5 felony. Uptain moved for and was granted
permission to proceed pro per. After a trial, the jury found Uptain guilty as
charged, and the court sentenced him to 2.25 years of imprisonment.

                               DISCUSSION

¶6             Uptain argues the superior court abused its discretion when
it denied his “repeated requests for disclosure” of “background information
on the three officers associated with his arrest” pursuant to Brady v.
Maryland. 373 U.S. 83, 87 (1963) (“[S]uppression by the prosecution of
evidence favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.”). We disagree.

¶7            A trial court is in the best position to rule on discovery
requests and has broad discretion in so doing. State v. Fields, 196 Ariz. 580,
582, ¶ 4 (App. 1999). Therefore, “we will not disturb its rulings on those
matters absent an abuse of that discretion.” Id. (citation omitted). A trial
court “abuses its discretion when it misapplies the law or predicates its
decision upon irrational bases.” Id. (citation omitted). To the extent a
defendant sets forth a constitutional claim in which he asserts the withheld
information is necessary to his defense, we conduct a de novo review. State
v. Connor, 215 Ariz. 553, 557, ¶ 6 (App. 2007).

¶8           Before trial, Uptain filed a “Motion for a Brady Report on the
Tempe Police Department” requesting a “full Brady report on [the] Tempe
Police Department.” The trial court denied the motion, explaining, “I am
going to deny that, because I don’t find that getting a Brady report on every
Tempe police officer is appropriate. It’s overbreadth. I mean, it’s not



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                             STATE v. UPTAIN
                            Decision of the Court

focused on your case. There’s not specific enough information for me to
actually take action. So I’m denying it at this time.”

¶9              Uptain then filed a “Motion for [a] Brady Report on Officers,”
requesting a Brady report on “Tempe Police officers Matt Torres, [O]fficer
Dunn, and [O]fficer Molinas” and “all officers that have police reports filed
in this case,” including a detective who had been involved in the grand jury
proceedings. The trial court again denied Uptain’s motion, explaining:

       If you have something that you believe the State has acted
       inappropriately regarding a Brady disclosure, you can bring
       that to the Court’s attention. Other than that, they have an
       ethical duty to disclose what is appropriate under the rules.

       ...

       But just a blanket motion for the Brady report, does not
       comply with current case law.

Uptain replied that “that’s fine, Your Honor,” and the prosecutor then
affirmed the State had no such information.

¶10           Uptain filed a motion for reconsideration on his Brady-report
requests, claiming he had been denied access to public records necessary
for him to “prov[e] character” and show “habit [and] [r]outine practice” of
the involved police officers and detective. Uptain demanded “all public
records of” six officers, asking for “[copies] of these [officers’] full career
files to show, habit, [r]outine practice, in charging the public with
[aggravated] charges while having the [prosecutor] and county attorney
turning a blind eye to [allegations] made against officers with questionable
character, and credibility.” The trial court denied the motion for
reconsideration, explaining: “The State’s avowal was that there is not [a]
Brady report on any of these officers that is disclosable. . . . I understand
that you believe there is something out there, but if the State doesn’t say
they have anything, then there’s nothing to disclose. . . . It really sounds like
what you’re asking for is their personnel employment file. That is a
different matter than a Brady report.”

¶11          At trial, Uptain asked Detective Dunn if he had “numerous
complaints against [him] filed by citizens.” Detective Dunn responded,
“No, I don’t have many complaints against me.” Uptain then asked
Detective Dunn if, during a previous interview, Detective Dunn had told
Uptain he had “numerous complaints filed against [him.]” Detective Dunn
replied that he did not recall. On redirect examination, the State asked


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                              STATE v. UPTAIN
                             Decision of the Court

Detective Dunn if he had talked about having “some complaints” against
him in that interview, and Detective Dunn responded that he had.
Detective Dunn then confirmed that none of those complaints “involve[d]
an accusation of dishonesty on the job” and that officers get complaints
from citizens “[a]ll the time.” Also during trial, Uptain asked Officer Torres
if he had “any findings of any type of excessive force or unnecessary force
on your background records,” to which Officer Torres replied in the
negative.

¶12           Uptain now claims that, if Detective Dunn was “in the habit
of using force or provoking fights with citizens,” that information would
have been useful for impeachment purposes. “However, that information
was [not] available because none of the officers’ disciplinary or complaint
histories were made available here.” He further contends that he “lacked
information vital to impeaching these officer[s’] credibility and pursuing
his theory that the officers accosted him and began the confrontation.”

¶13            Under the United States Constitution, the prosecution has a
due-process obligation to disclose exculpatory evidence that is material to
the issue of guilt or punishment. State v. Tucker, 157 Ariz. 433, 438 (1988)
(citing Brady, 373 U.S. 83; U.S. v. Bagley, 473 U.S. 667, 676-84 (1985)); see also
Ariz. R. Crim. P. 15.1(b)(8) (the State must make available to the defendant
“all existing material or information that tends to mitigate or negate the
defendant’s guilt or would tend to reduce the defendant’s punishment”).
When a defendant makes a request for the personnel files of a testifying
officer, however, Arizona requires the defendant to make a threshold
showing of materiality. State v. Robles, 182 Ariz. 268, 272 (App. 1995). “Mere
speculation that a government file may contain Brady material is not
sufficient to require a remand for in camera inspection, much less reversal
for a new trial. A due process standard which is satisfied by mere
speculation would convert Brady into a discovery device and impose an
undue burden” upon courts. State v. Acinelli, 191 Ariz. 66, 71 (App. 1997)
(quoting U.S. v. Navarro, 737 F.2d 625, 631 (7th. Cir. 1984)).

¶14           Uptain has made no such showing of materiality, but rather
is “effectively requesting a blind fishing expedition among documents
possessed by the government.” Acinelli, 191 Ariz. at 71 (citation omitted).
The State repeatedly avowed that it had no Brady information on any of the
officers, and Uptain presented no evidence suggesting the contrary. See
State v. Montano, 204 Ariz. 413, 423-24, ¶¶ 47-53 (2003) (prosecutor avowed
there was no Brady material in sealed documents; court concluded
defendant’s Brady claim failed, in part, because defendant had not shown
the sealed documents were in any way exculpatory). Despite Uptain’s


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                             STATE v. UPTAIN
                            Decision of the Court

conclusory assertion that “[w]hether or not these officers had other
complaints whose facts mirrored Mr. Uptain’s situation was not
speculation, but was directly pertinent to Mr. Uptain’s defense,” Detective
Dunn’s admission that he had had “some complaints” filed against him did
nothing to establish that the existence of any relevant Brady material was
more than speculation. Therefore, the trial court did not abuse its discretion
in denying Uptain’s Brady-related discovery requests.

¶15            Furthermore, despite Uptain’s assertion that any evidence
about complaints against Detective Dunn involving “use of force or
allegations of use of excessive force,” or “[i]f Det. Dunn was in the habit of
using force or provoking fights with citizens, that would have been useful
impeachment information,” such information may not be used either to
impeach a witness or to show the witness acted in conformity with a certain
character trait. As this court has explained in State v. Superior Court In & For
Pima County, when a defendant claims an arresting officer has been “overly
aggressive and assaultive, and that in order to adequately prepare the best
possible defense, he needed to determine whether there had been
substantiated complaints” against the officer involving assaultive conduct,
the defendant “would be unable to use this evidence of other bad acts to
show that the officers acted in conformity with an aggressive and violent
character” under Rule 404(b) of the Arizona Rules of Evidence. 132 Ariz.
374, 376 (App. 1982) (citations omitted). “Nor is such evidence admissible
under [Arizona Rules of Evidence 405(b)] as a trait of character which is an
essential element of a defense.” Id. (citation omitted). Further, under
Arizona Rule of Evidence 608(b), “assaultive conduct does not involve
dishonesty or false statement and therefore could not be used to impeach
the credibility of the officers.” Id. (citations omitted).

                               CONCLUSION

¶16           The trial court did not abuse its discretion in denying




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                          STATE v. UPTAIN
                         Decision of the Court


Uptain’s Brady-related discovery requests. For the foregoing reasons, we
affirm Uptain’s conviction and sentence.




                         AMY M. WOOD • Clerk of the Court
                         FILED:    JT


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