                                                                            FILED BY CLERK
                              IN THE COURT OF APPEALS                           DEC 12 2008
                                  STATE OF ARIZONA                               COURT OF APPEALS
                                    DIVISION TWO                                   DIVISION TWO


THE STATE OF ARIZONA,                           )
                                                )           2 CA-CR 2008-0073
                                  Appellant,    )           DEPARTMENT B
                                                )
                     v.                         )           OPINION
                                                )
ANTHONY SANCHEZ BEJARANO,                       )
                                                )
                                  Appellee.     )
                                                )


            APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                  Cause No. CR-20071837

                             Honorable Richard Nichols, Judge

                                        DISMISSED


Barbara LaWall, Pima County Attorney
 By Jacob R. Lines                                                                    Tucson
                                                                      Attorneys for Appellant

David W. Basham                                                                       Tucson
                                                                        Attorney for Appellee


E S P I N O S A, Judge.


¶1             Before trial, appellee Anthony Bejarano filed a motion pursuant to Rule 15.7,

Ariz. R. Crim. P., to preclude the state’s witnesses from testifying if the state did not timely

comply with its disclosure obligations. The trial court eventually granted that motion as to
one key witness, finding the state had failed to arrange a pretrial interview of that witness and

that precluding the witness was an appropriate sanction. Following this order, the trial court

declined Bejarano’s request to dismiss the case with prejudice but granted the state’s motion

to dismiss without prejudice. The state now appeals the order precluding its witness.

¶2            This court may not address an issue or provide relief if it lacks jurisdiction to

do so and we have an independent duty to ensure that we have jurisdiction before addressing

the merits of any claim raised on appeal. See Ruesga v. Kindred Nursing Ctrs., L.L.C., 215

Ariz. 589, ¶ 8, 161 P.3d 1253, 1257 (App. 2007). The state asserts this court has jurisdiction

pursuant to Ariz. Const. art. VI, § 9; A.R.S. § 12-120.21(A)(1); and, specifically, A.R.S.

§ 13-4032(6), which provides the state may appeal from “[a]n order granting a motion to

suppress the use of evidence.” Because our jurisdiction is limited by statute, Hanania v. City

of Tucson, 123 Ariz. 37, 38, 597 P.2d 190, 191 (App. 1979), we may only consider the state’s

appeal if we can fairly characterize Bejarano’s motion to preclude the state’s witness under

Rule 15.7 as a “motion to suppress” within the meaning of § 13-4032(6). We review this

question of law and statutory interpretation de novo. See State v. Guadagni, ___ Ariz. ___,

¶ 13, 178 P.3d 473, 477 (App. 2008).

¶3            Our supreme court has squarely addressed the jurisdictional question presented

here. In State v. Lelevier, 116 Ariz. 37, 38, 567 P.2d 783, 784 (1977), it interpreted the scope




                                               2
of A.R.S. § 13-1712(7), the statute subsequently renumbered as § 13-4032(6).1 The court

rejected a broad reading of the statute’s reference to “[a]n order granting a motion to

suppress” evidence and concluded the provision did not authorize the state to appeal directly

“any court ruling which sustains an objection to evidence before, during or after trial.”

Lelevier, 116 Ariz. at 38, 567 P.2d at 784. In describing the scope of the jurisdiction granted

in § 13-1712(7), the court held: “A motion to suppress challenges only the constitutionality

of the obtaining of evidence by the state and it is made before trial begins.” Id.(emphasis

added).

¶4            Here, the state appeals the trial court’s ruling on Bejarano’s pretrial motion for

sanctions under Rule 15.7. But that motion did not challenge the acquisition of the state’s

evidence on constitutional grounds. Therefore, the court’s order precluding the state’s

witness from testifying did not constitute “[a]n order granting a motion to suppress” pursuant

to § 13-4032(6), and this court does not have jurisdiction of the state’s appeal on that

statutory basis. Further, because the state dismissed the charges against Bejarano before trial

commenced, the state cannot appeal the court’s order under any other subsection of this

statute. See Litak v. Scott, 138 Ariz. 599, 601, 676 P.2d 631, 633 (1984) (state may not

appeal order granting its own motion to dismiss).




       1
        See 1969 Ariz. Sess. Laws, ch. 133, § 11 (amending former § 13-1712 to allow
appeal of suppression orders); 1977 Ariz. Sess. Laws, ch. 142, § 162 (renumbering § 13-1712
as § 13-4032); 1991 Ariz. Sess. Laws, ch. 229, § 6 (amending statute and renumbering
subsection (7) as current subsection (6)).

                                              3
¶5            Although we find Lelevier controlling, we acknowledge we have not always

vigilantly enforced its holding. On several occasions, this court has ruled on appeals by the

state from trial court orders that were not appealable under Lelevier, without any discussion

or citation to case law concerning its jurisdiction to do so. See State v. Lopez, 180 Ariz. 209,

210, 883 P.2d 446, 447 (App. 1994) (accepting state’s appeal from order precluding

hypnotized police officers from testifying), aff’d in part, vacated in part, 181 Ariz. 8, 887

P.2d 538 (1994) (not addressing jurisdictional issue); State v. Burciaga, 146 Ariz. 333, 334,

705 P.2d 1384, 1385 (App. 1985) (accepting appeal from “order granting defendant’s motion

to suppress statements made by the defendant in connection with . . . a presentence report in

a prior unrelated case”); State v. Kozlowski, 143 Ariz. 137, 138, 692 P.2d 316, 317 (App.

1984) (accepting appeal from order granting “motion in limine . . . to suppress the State’s

evidence” of revocation of out-of-state driver’s license); State v. Mitchell, 136 Ariz. 386,

387, 666 P.2d 486, 487 (App. 1982) (accepting consolidated appeals from orders granting

defendants’ “motion[s] in limine seeking to suppress the state’s evidence” of revocation of

out-of-state driver’s licenses).

¶6            In a supplemental brief invited by this court, the state points out that Division

One of this court concluded that the state’s right to appeal under former § 13-4032(7), the

predecessor to § 13-4032(6), was “not limited to the suppression of illegally-obtained

evidence,” and any ruling on a defendant’s motion that “ha[s] the effect of prohibiting the

state from using certain evidence” is a motion to suppress within the meaning of the statute.



                                               4
State v. Rodriguez, 160 Ariz. 381, 382-83, 773 P.2d 486, 487-88 (App. 1989) (Rodriguez II).

However, we may not disregard or modify the law as articulated by the Arizona Supreme

Court, see State v. Sullivan, 205 Ariz. 285, ¶ 15, 69 P.3d 1006, 1009 (App. 2003), and our

reexamination of Rodriguez II leads us to conclude its reasoning was not well anchored in

our supreme court’s jurisprudence.

¶7            In Rodriguez II, the court justified its departure from Lelevier by relying

primarily on the Arizona Supreme Court’s unrelated decision in State v. Rodriguez, 126 Ariz.

28, 612 P.2d 484 (1980) (Rodriguez I).2 There, our supreme court characterized a motion in

limine as the functional equivalent of a motion to suppress to explain how the former motion

might be procedurally authorized under Rule 16, Ariz. R. Crim. P., a rule promulgated by the

supreme court. See Rodriquez I, 126 Ariz. at 30, 612 P.2d at 486. But the supreme court in

Rodriguez I did not purport to address the scope of appellate jurisdiction over an appeal by

the state, much less the meaning of the phrase “suppress the use of evidence” as used in

§ 13-4032(6). And we are skeptical that our supreme court intended in Rodriguez I to

abrogate its prior holding in Lelevier only three years after that case was decided, in an

appeal by the defendant rather than by the state, and without addressing either Lelevier or the




       2
       The Rodriguez II court also cited three cases in which Division One had ruled upon
appeals by the state in violation of Lelevier, without having addressed and apparently
overlooking the jurisdictional issue. See Rodriguez II, 160 Ariz. at 382-83, 773 P.2d at 487-
88.

                                              5
language of the jurisdictional statute in issue. See Id., 126 Ariz. at 29-30, 612 P.2d at 485-

86.3

¶8            In Rodriguez II, the court of appeals also distinguished Lelevier, observing that

case “only involved an issue of suppressing illegally-obtained evidence and did not

necessarily consider other potential appeals by the state.” Rodriguez II, 160 Ariz. at 382, 773

P.2d at 487. But we do not read the supreme court’s reasoning in Lelevier so narrowly. To

the contrary, the Lelevier court specifically rejected as “specious” the suggestion that the

phrase “motion to suppress” in the predecessor to § 13-4032(6) encompassed “any court

ruling which sustains an objection to evidence.” Levelier, 116 Ariz. at 38, 567 P.2d at 784.

Unfortunately, the court’s reasoning in Rodriguez II depends on precisely that erroneous

interpretation of the phrase. In short, we cannot follow Rodriguez II, because its holding

cannot be harmonized with our supreme court’s reasoning in Lelevier.4

       3
         In Rodriguez I, the court’s holding did not depend on the meaning of the phrase
“motion to suppress,” and the court did not expressly comment on motions in limine as
guidelines for dealing with these motions in the future, much less for determining appellate
jurisdiction over appeals by the state. Rather, the court apparently undertook its discussion
of motions in limine merely to clarify that such motions are legally cognizable and subject
to appellate review, even though they are “not provided for by name in either our criminal
or civil rules of procedure.” Rodriguez I, 126 Ariz. at 30, 612 P.2d at 486.
       4
         Although we dismiss this appeal for lack of jurisdiction in accordance with Lelevier,
we also note we would be compelled to dismiss on alternative, independent grounds as well.
Assuming arguendo that Rodriguez I abrogated the law as set forth in Lelevier, Rodriguez I
would apply, by its terms, only to motions in limine that are “not provided for by name” in
the rules of procedure. 126 Ariz. at 30, 612 P.2d at 486. We interpret language in rules and
statutes as carrying a special meaning when the context reveals this to be the drafters’ intent.
See State v. Taylor, 216 Ariz. 327, ¶ 20, 166 P.3d 118, 124 (App. 2007); State v. Oaks, 209
Ariz. 432, ¶ 10, 104 P.2d 163, 165 (App. 2004). Here, Bejarano’s motion for sanctions

                                               6
¶9            Not only do we thus find the holding of Lelevier intact but we also believe it

represents the most cogent interpretation of the language in § 13-4032(6). Until 1969, the

state could not appeal from any adverse evidentiary ruling in a criminal matter unless the

defendant had been convicted and had appealed from the judgment. See Ariz. Code 1939,

§ 44-2508(d); see also Ariz. Rev. Code 1928, § 5136. The legislature, in effect, limited the

state to challenging unfavorable evidentiary rulings on cross-appeal, which is still the general

rule under our current statute. See § 13-4032(3) (state may appeal “[a] ruling on a question

of law adverse to the state when the defendant was convicted and appeals from the

judgment”). This limitation reflects that criminal appeals by the state have been historically

disfavored. See State ex rel. McDougall v. Gerber, 159 Ariz. 241, 242, 766 P.2d 593, 594

(1988).

¶10           In 1969, however, the legislature amended the predecessor statute of

§§ 13-4032 and 13-1712, to enable the state to appeal an order “granting a motion to suppress




sought to preclude the state’s witness pursuant to Rule 15.7(a)(1), Ariz. R. Crim. P.
“Sanctions” and “preclu[sion]” are terms expressly provided under Rule 15.7(a)(1) and carry
special meaning in the discovery context. See Black’s Law Dictionary 1124 (7th ed. 1999)
(defining “preclusion order” as “[a]n order barring a litigant from presenting or opposing
certain claims or defenses for failing to comply with a discovery order”). The absence of
these terms from both § 13-4032(6) and Rule 16 strongly suggests that an order granting a
motion to preclude evidence under Rule 15.7 is distinct from an order granting a “motion to
suppress” and, consequently, cannot be appealed by the state, even if other types of in limine
rulings are amenable to appellate review. See also State ex rel. McDougall v. Tvedt, 163
Ariz. 281, 282-83, 787 P.2d 1077, 1078-79 (App. 1989) (describing unpublished supreme
court order ruling predecessor to § 13-4032(6) did not allow state to appeal exclusion of
evidence for disclosure violation).

                                               7
the use of evidence” regardless of whether a final judgment of conviction had been entered.

1969 Ariz. Sess. Laws, ch. 133, § 11. This significant amendment to the code followed

landmark constitutional decisions applying exclusionary rules to the states, making evidence

obtained in violation of a defendant’s constitutional rights generally inadmissible at trial. See

e.g. Miranda v. Arizona, 384 U.S. 436, 444-45 (1966) (holding evidence obtained through

interrogation inadmissible unless person in custody advised of constitutional rights to remain

silent and to consult attorney during questioning); Mapp v. Ohio, 367 U.S. 643, 654-55

(1961) (holding evidence obtained by unconstitutional search or seizure inadmissible in state

courts).

¶11           In light of this history and the present form of § 13-4032, it is reasonable to

conclude our supreme court meant precisely what it wrote in Lelevier when it narrowly

defined a “motion to suppress” and specified its jurisdictional implications. Moreover, under

the broad interpretation of that term suggested by the state, § 13-4032(6) would authorize an

appeal by the state from any court ruling that limited the state’s presentation of evidence. We

find it unlikely our legislature intended to create an exception that would so wholly swallow

the historical rule, embodied in Arizona’s statutory structure, otherwise limiting the state to

cross-appeals in evidentiary matters.

¶12           Lelevier’s definition of a motion to suppress is in accord with contemporary

sources as well. Although not defined in our statutes or rules, a “motion to suppress” is

defined in Black’s Law Dictionary as “[a] request that the court prohibit the introduction of



                                               8
illegally obtained evidence at a criminal trial.” Id. at 1034. The “suppression of evidence,”

in turn, is “[a] trial judge’s ruling that evidence that a party has offered should be excluded

because it was illegally acquired.” Id. at 1454. This narrow construction of “suppression”

is apparent in Rule 16, Ariz. R. Crim. P., as the court noted in Lelevier. See 116 Ariz. at 38,

567 P.2d at 784. Specifically, Rule 16.2, which provides the “[p]rocedure on pretrial motions

to suppress evidence,” requires the court to inform unrepresented defendants whenever a

constitutional issue arises concerning the acquisition of evidence that may warrant an

evidentiary hearing. See Ariz. R. Crim. P. 16.2(a). And the rule establishes that it is the

prosecutor’s burden at such a hearing to prove “the lawfulness in all respects of the

acquisition of all evidence” the state intends to use at trial. Ariz. R. Crim. P. 16.2(b).

¶13           Functionally, of course, an order suppressing evidence has essentially the same

effect as an order precluding it or otherwise ruling it inadmissible, and the verb “suppress”

admittedly may carry a broader meaning than the court gave it in Lelevier. See Black’s Law

Dictionary 1454 (“suppress” means “[t]o put a stop to, put down, or prohibit; to prevent

(something) from being seen, heard, known, or discussed”). Yet the statute itself forecloses

a broader reading of § 13-4032(6) by distinguishing an order on a “motion to suppress” from

other rulings on “question[s] of law adverse to the state,” for which, as previously noted, the

state may obtain review solely through cross-appeal. § 13-4032(3).

¶14           In sum, the legislature did not intend all rulings limiting the state’s presentation

of evidence to be appealable, ipso facto. Rather, “[t]he legislature, by statute, has given the



                                               9
State a right to appeal from a pretrial suppression order.” State v. Million, 120 Ariz. 10, 13,

583 P.2d 897, 900 (1978). This legislative intent must be given effect in interpreting

§ 13-4032(6), see State v. Kearney, 206 Ariz. 547, ¶ 5, 81 P.3d 338, 340 (App. 2003), and

our supreme court’s articulation of the law in Lelevier achieves just that. The state may

appeal only a discrete subset of adverse evidentiary rulings under § 13-4032(6)—namely,

those “granting a motion to suppress the use of evidence.” 5

¶15           We note neither §13-4032(6) nor Levelier leaves the state without recourse for

challenging adverse pretrial evidentiary rulings unrelated to the illegal acquisition of

evidence. Rather than dismissing its case and pursuing the appellate process, the state could

have petitioned this court for special action relief. See Tvedt, 163 Ariz. 281, 283, 787 P.2d

1077, 1079 (App. 1989) (petition for special action is only avenue for review of non-

appealable order); see also State v. Schrock, 149 Ariz. 433, 436, 719 P.2d 1049, 1052 (1986)

(on review of court of appeals decision in special action, supreme court concluded trial court

abused discretion in precluding state’s witness for Rule 15 violation).6 And, if its grievance

arises on the verge of a trial, the state may move to stay the proceedings, first in the trial

       5
        We note and commend the state’s candid concession at oral argument that it had
reassessed its position after reviewing the pre-argument draft decision issued by the court and
could not effectively dispute the analysis on the jurisdictional question.
       6
        In its supplemental brief and at oral argument, the state urged that if jurisdiction is
found lacking under A.R.S. § 13-4032(7), this court should nevertheless exercise its special
action jurisdiction to decide the merits of the issue raised. But we do not do so because there
is no case pending to which any special action relief would apply, the case having been
voluntarily dismissed. Moreover, if the state refiles the charges, the issues presented in this
appeal may not arise, essentially rendering them moot.

                                              10
court and then, if that request is denied, in the court of appeals. See Ariz. R. P. Spec. Actions

5; State v. Fields, 196 Ariz. 580, ¶ 3, 2 P.3d 670, 672 (App. 1999).

¶16           For the foregoing reasons, we dismiss the state’s appeal for lack of jurisdiction.




                                                PHILIP G. ESPINOSA, Judge

CONCURRING:




GARYE L. VÁSQUEZ, Judge




J. WILLIAM BRAMMER, JR., Judge




                                               11
