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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                                        v.

                    DAVID THOMAS GOOLD, Appellee.

                             No. 1 CA-CR 14-0870
                              FILED 2-25-2016


           Appeal from the Superior Court in Maricopa County
                      No. CR2014-107020-001 DT
                The Honorable John R. Ditsworth, Judge

                      REVERSED AND REMANDED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Lisa Marie Martin
Counsel for Appellant

Brown & Little, P.L.C., Tempe
By Matthew O. Brown
Counsel for Appellee
                            STATE v. GOOLD
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Donn Kessler joined.


W I N T H R O P, Judge:

¶1             The State appeals the trial court’s order dismissing this case
with prejudice after its attorney at trial read a question in an interview
transcript referring to the defendant, David Goold, invoking his Fifth-
Amendment rights. For the following reasons, we reverse and remand the
case to the trial court for further proceedings consistent with this decision.

                 FACTS AND PROCEDURAL HISTORY

¶2            The defendant was indicted for one count of aggravated
assault, a class 3 dangerous felony. At trial, defense counsel, Daniel
Raynak, conducted a lengthy cross-examination of Phoenix Police Officer
Manzietti, and used the transcript of a taped telephonic pre-trial interview
to question and arguably impeach Officer Manzietti. On redirect
examination, Officer Manzietti indicated that one explanation for why her
testimony at trial was arguably different from that provided in the
interview with the defense counsel was that Mr. Raynak was yelling at her
during the interview, and that she did not understand some of the
questions. Mr. Raynak then asked to have the entire recording of the
interview played. The State indicated at a sidebar conference it had no
objection to the entire recording being played, but noted that one of Mr.
Raynak’s questions during the interview referenced his client’s invocation
of his Fifth-Amendment rights; the trial court then directed that the relevant
portion of the interview transcript be read to the jury.1 When the State’s
attorney, Mr. Hinrichsen, asked Officer Manzietti to point out her answers
showing she had not understood the questions on page 10 of the interview
transcript, Mr. Raynak objected and requested that some context be




1      Mr. Raynak did not question whether reading the transcript would
be sufficient to show whether he was yelling during the interview.




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                           STATE v. GOOLD
                          Decision of the Court

provided for the answers that were going to be read aloud.2 The court then
directed Mr. Hinrichsen to read the question:

      Hinrichsen: What specific responses, and I will refer you to
      page 10, are things that you told Mr. Raynak that you don’t
      understand the question.

      Raynak: Your Honor, I am going to object unless we read it
      and put it in context where she specifically advised she is not
      answering the question. You can’t pull something out of thin
      air and say that.

      Hinrichsen: I’m fine if you [Mr. Raynak] want to read the
      questions and the answers.

      The Court: Go ahead.

      Hinrichsen: [Speaking to the witness] Go ahead and read the
      questions and the answers.

      Manzietti: The question is, from Mr. Raynak—well, do you
      want the question from page 9?

      The Court: Mr. Hinrichsen, you read the question and have
      her read her response.

      Hinrichsen: Will do. Page 9. “I understand you would have
      done that but you already admitted and it’s in the officer’s
      reports, you told them that there was already probable cause
      to arrest before they even stopped the suspect, before he even
      had a chance to invoke his rights. You already made a
      decision—

      Mr. Raynak: May we approach?

At the subsequent bench conference, defense counsel immediately sought
a mistrial and dismissal with prejudice; the court granted a mistrial,
discharged the jury and, after briefing and oral argument, the court
dismissed the case with prejudice.


2      The transcript of the interview was not admitted into evidence and
thus is not in the record.




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                             STATE v. GOOLD
                            Decision of the Court

¶3           The State timely appealed. We have appellate jurisdiction
pursuant to the Arizona Constitution, Article 6, Section 9; and Arizona
Revised Statutes (“A.R.S.”) sections 12–120.21(A)(1), 13–4031, and 13–
4032(1).3

                                 ANALYSIS

¶4             We review the trial court’s order “granting a motion to
dismiss criminal charges for an abuse of discretion or for the application of
an incorrect legal interpretation.” State v. Lemming, 188 Ariz. 459, 460, 937
P.2d 381, 382 (App. 1997). The State does not contest the mistrial order;
however, it contends the dismissal should have been without prejudice.
The defendant contends that the trial court’s ruling was appropriate.4 The
record5 is silent as to how the trial court reached its decision to dismiss with
prejudice.


3     We cite the current version of all applicable statutes unless revisions
material to this decision have occurred since the relevant events.

4       On appeal, the defendant continues to rely almost entirely on the
factors listed in State v. Huffman, 222 Ariz. 416, 215 P.3d 390 (App. 2009) as
justification for the trial court’s dismissal with prejudice. Huffman does not
resolve the issue presented in this case. Huffman involved a case where,
after two hung juries, a defendant was tried a third time and convicted. Id.
at 392, ¶ 1, 215 P.3d at 418. The issues on appeal in Huffman were whether
a third prosecution constituted double jeopardy, and if not, whether
principles of due process barred the third prosecution. Id. The court held
that a successive prosecution following two hung juries did not constitute
double jeopardy, and that due process only required that the trial court
consider and balance the competing interests of the State and the defendant
in determining whether a third trial should be permitted or whether the
charges should instead be dismissed with prejudice. Id. at 419 & 422, ¶¶ 7
& 15, 215 P.3d at 393 & 396.

5      The defendant contends the record on appeal is incomplete because
the State only submitted transcripts for two days of the trial, one for the day
when the prosecution read the transcript in question and the other for the
day of the hearing on the defendant’s motion to dismiss with prejudice. We
disagree. The appellant has the duty to ensure the record contains material
or documents necessary for us to review the contended matter. State v.
Lavers, 168 Ariz. 376, 399, 814 P.2d 333, 356 (1991). Here, the State has



                                       4
                             STATE v. GOOLD
                            Decision of the Court

¶5            Rule 16.6, Arizona Rules of Criminal Procedure, provides:

       a. On Prosecutor's Motion. The court, on motion of the
       prosecutor showing good cause therefor, may order that a
       prosecution be dismissed at any time upon finding that the
       purpose of the dismissal is not to avoid the provisions of Rule
       8 [on speedy trial].

       b. On Defendant's Motion. The court, on motion of the
       defendant, shall order that a prosecution be dismissed upon
       finding that the indictment, information, or complaint is
       insufficient as a matter of law.
       ...

       d. Effect of Dismissal. Dismissal of a prosecution shall be
       without prejudice to commencement of another prosecution,
       unless the court order finds that the interests of justice require
       that the dismissal be with prejudice.

Ariz. R. Crim. P. 16.6.

¶6             As provided by the rule and existing case law, a trial judge
may dismiss a prosecution under the authority of Rule 16.6; however, this
rule favors dismissal without prejudice: “dismissal of a prosecution shall
be without prejudice . . . unless the court order finds that the interests of
justice require that the dismissal be with prejudice.” Ariz. R. Crim. P.
16.6(a), (b), & (d); State v. Granados, 172 Ariz. 405, 407, 837 P.2d 1140, 1142
(App. 1991). The rule specifically “requires the trial court to make ‘a
reasoned finding’ that the interests of justice require the dismissal to be with
prejudice.” State v. Wills, 177 Ariz. 592, 594, 870 P.2d 410, 412 (App. 1993);
accord State v. Gilbert, 172 Ariz. 402, 405, 837 P.2d 1137, 1140 (App. 1991);
State v. Garcia, 170 Ariz. 245, 248, 823 P.2d 693, 696 (App. 1991). If such an
explicit finding is not present in the record, the record itself must contain
facts supporting such a finding. Wills, 177 Ariz. at 594, 870 P.2d at 412. The
most important consideration in determining whether the interests of
justice require dismissal with prejudice is whether the defendant will suffer
prejudice from the delay if the case were to be retried. Gilbert, 172 Ariz. at
404, 837 P.2d at 1139. In this context, “prejudice” means a harm that would




fulfilled this duty as the days of trial and of any hearing relevant to the
dismissal were those two days.

                                       5
                             STATE v. GOOLD
                            Decision of the Court

actually impair the defendant’s ability to defend against the charges. In re
Arnulfo G., 205 Ariz. 389, 391, ¶ 9, 71 P.3d 916, 918 (App. 2003).

¶7             In Wills, the trial court granted the defendant’s motion to
dismiss with prejudice, stating “I think the passage of six months is
insufficient grounds for prejudice. The motion to dismiss with prejudice is
granted. The Court finds pursuant to Rule 16.5 [the then-applicable rule
provision], that the interests of justice requires [sic] the dismissal to be with
prejudice.” Id. On appeal, this court agreed with the trial court that the
mere lapse of time was not sufficient to support a dismissal with prejudice,
but held the trial court’s perfunctory statement that the interests of justice
required dismissal with prejudice did not, as a matter of law, constitute the
“reasoned finding” required by Rule 16.6(d); Gilbert, 172 Ariz. at 405, 837
P.2d at 1140; and Garcia, 170 Ariz. at 248, 823 P.3d at 696. Wills, 177 Ariz. at
594, 870 P.2d at 412. This court then specifically examined the record; that
review did not reveal any identifiable harm to the defendant if the case were
to be dismissed without prejudice, nor had the defendant articulated any
such harm. Id. at 594–95, 870 P.2d at 412–13. As a result, we directed that
the dismissal in that case to be without prejudice. Id. at 595, 870 P.2d at 413.

¶8             In the present case, in granting dismissal with prejudice, the
trial court simply stated:

       The Court has received Defendant’s Motion to Dismiss with
       Prejudice, the State’s response and the reply. Good cause
       appearing,

       IT IS ORDERED granting the motion.

       IT IS FURTHER ORDERED dismissing CR2014-107020-001 as to
       Defendant DAVID THOMAS GOOLD with prejudice.

Like the perfunctory statement in Wills, a conclusory statement of “good
cause appearing” does not meet the requirement of a reasoned finding that
the interests of justice require dismissal with prejudice. Nor does the record
support such a finding.

¶9           In a related argument, the defendant also contends that
jeopardy should attach because there was deliberate prosecutorial
misconduct. A mistrial based on prosecutorial misconduct, however,
generally does not bar a later retrial. State v. Trani, 200 Ariz. 383, 384, ¶ 6,
26 P.3d 1154, 1155 (App. 2001). Jeopardy may attach when a mistrial is
granted or declared only if all of the following conditions exist:



                                       6
                             STATE v. GOOLD
                            Decision of the Court

       1. Mistrial is granted because of improper conduct or actions
       by the prosecutor; and

       2. such conduct is not merely the result of legal error,
       negligence, mistake, or insignificant impropriety, but, taken
       as a whole, amounts to intentional conduct which the
       prosecutor knows to be improper and prejudicial, and which
       he pursues for any improper purpose with indifference to a
       significant resulting danger of mistrial or reversal; and

       3. the conduct causes prejudice to the defendant which cannot
       be cured by means short of a mistrial. Pool v. Super. Ct. of Pima,
       139 Ariz. 98, 108–09, 677 P.2d 261, 271–72 (1984) (emphasis
       added).

¶10           The second and third prongs of the Pool test are at issue here.
The State agrees that, barring waiver, the prosecution may not comment on
a defendant’s invocation of Fifth-Amendment rights. See State v. Guerra,
161 Ariz. 289, 296, 778 P.2d 1185, 1192 (1989) (prohibiting the prosecution
from commenting on a defendant’s invocation of the Fifth-Amendment
rights). Even assuming then that improper conduct occurred, the next
inquiry is whether the reading of the offending passage here was
intentional or merely a mistake. Although the defendant contends the
violation was deliberate, our review of the record suggests a conclusion that
this was mere inadvertence. At worst, this was perhaps a situation of
shared responsibility, as Mr. Raynak had the transcript in hand as Mr.
Hinrichsen was starting to read the question that contained the offending
passage. Both before the trial court and on appeal, the defendant argues
that Mr. Hinrichsen and his supervising attorney, Mr. Lynch, concocted a
plan during the lunch recess to deliberately include the reference to the
defendant’s invoking his rights; however, on this record, there is no proof
to support such conjecture. Indeed, when Mr. Hinrichsen started to read
from the transcript, he went first to the witness’s answer, and not to the
question itself.

¶11            As it relates to the third prong—the existence of prejudice as
a result of the conduct, the defendant contends that he has been prejudiced
and that the delay caused by the mistrial will adversely affect his ability to
defend against the charge. In that regard, the defendant contends (1) that
he suffers prejudice from passage of time; (2) that his memory and ability
to testify on his own behalf would not improve; (3) that his incarceration
would be prolonged; (4) that he would suffer additional financial and
emotional anxiety if the case were retried; and (5) that potential witnesses


                                       7
                             STATE v. GOOLD
                            Decision of the Court

who were available at the first trial setting may not be available for any
retrial.

¶12            The existence of actual or potential prejudice is a critical
element both under Rule 16.6 and in determining whether jeopardy should
attach after an incidence of prosecutorial misconduct. None of the
generalized harm from delay as identified by the defendant (items (1)–(4)
above) would impair his ability to defend against the charge. See Wills, 177
Ariz. at 594, 870 P.2d at 412 (stating mere lapse of time is not sufficient to
justify dismissal with prejudice); Granados, 172 Ariz. at 407, 837 P.2d at 1142
(stating generalizations like lack of finality or fading memories are not
prejudicial and do not support a dismissal with prejudice). Nor does any
evidence in the record demonstrate that the delay was created for the
purpose of gaining tactical advantage or harassing the defendant. See
Arnulfo G., 205 Ariz. at 391, ¶ 9, 71 P.3d at 918 (stating a dismissal with
prejudice is justified if the state delayed the case for the purpose of gaining
a tactical advantage over or harassing the defendant). Moreover, the
defendant has not provided any information beyond hypothetical
speculation that indicates any potential witnesses would be unavailable at
the retrial.

                              CONCLUSION

¶13          The trial court erred in not making the requisite findings to
support a conclusion—required under Rule 16.6 and the applicable case
law—that the interests of justice and/or principles of double jeopardy
require a dismissal with prejudice in this case. Further, our review of the
record does not support such a conclusion, either.

¶14          The order dismissing the case with prejudice is reversed. We
remand the matter to the trial court with direction to enter an order
dismissing the case without prejudice.




                                    :ama




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