                                   IN THE
             ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                  MARCUS DEAN CEASAR, Petitioner,

                                      v.

  THE HONORABLE JENNIFER CAMPBELL, Judge of the SUPERIOR
   COURT OF THE STATE OF ARIZONA, in and for the County of
                 YAVAPAI, Respondent Judge,

               STATE OF ARIZONA, Real Party in Interest.

                           No. 1 CA-SA 14-0167
                            FILED 10-23-2014


  Petition for Special Action from the Superior Court in Yavapai County
                          No. P1300CV201400409
                The Honorable Jennifer B. Campbell, Judge

             JURISDICTION ACCEPTED; RELIEF DENIED


                                  COUNSEL

M. Alex Harris, P.C., Prescott
By M. Alex Harris
Counsel for Petitioner

Yavapai County Attorney’s Office, Prescott
By Dennis M. McGrane
Counsel for Real Party in Interest
                          CEASAR v. CAMPBELL
                           Opinion of the Court



                                  OPINION

Presiding Judge Lawrence F. Winthrop delivered the opinion of the Court,
in which Judge John C. Gemmill and Judge Samuel A. Thumma joined.


W I N T H R O P, Presiding Judge:

¶1            Marcus Dean Ceasar (“Petitioner”) has filed a petition for
special action, challenging the trial court’s ruling granting the State’s
motion to dismiss a supervening indictment1 and allowing the State to
proceed on the original indictment against Petitioner. Petitioner maintains
the supervening indictment necessarily replaced or voided the first
indictment. For the following reasons, we accept jurisdiction of the special
action petition but deny relief, concluding the trial court did not err in
granting the State’s motion to dismiss the supervening indictment.

                              JURISDICTION

¶2             Special action jurisdiction is available when there is no other
equally plain, speedy, or adequate remedy by appeal. Ariz. R.P. Spec. Act.
1(a). As a general rule, a ruling on a challenge to a grand jury’s findings of
probable cause is not reviewable on direct appeal. State v. Moody, 208 Ariz.
424, 439-40, ¶ 31, 94 P.3d 1119, 1134-35 (2004). Additionally, special action
jurisdiction is appropriately invoked when the issue raised is a purely legal

1      The word “supervene” means to “follow.” See Merriam Webster’s
Collegiate Dictionary 1183-84 (10th ed. 1993). In general, the terms
“supervening indictment” and “superseding indictment” may be used
interchangeably. See, e.g., State v. Leenhouts, 218 Ariz. 346, 349, ¶ 13, 185
P.3d 132, 135 (2008). A supervening indictment refers to an indictment
issued in the absence of a dismissal of the prior charging document. See
generally United States v. Rojas-Contreras, 474 U.S. 231, 237 (1985) (Blackmun,
J., concurring) (“The term ‘superseding indictment’ refers to a second
indictment issued in the absence of a dismissal of the first.”); see also Segura
v. Cunanan, 219 Ariz. 228, 234, ¶ 22, 196 P.3d 831, 837 (App. 2008)
(recognizing that a defendant’s right to a preliminary hearing on a prior
complaint may be eliminated by a “supervening indictment”). A
superseding indictment may be returned at any time before a trial on the
merits of an earlier indictment. United States v. Herbst, 565 F.2d 638, 643
(10th Cir. 1977).


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                          CEASAR v. CAMPBELL
                           Opinion of the Court

question, one of first impression, and one of statewide importance. State v.
Bernini, 230 Ariz. 223, 225, ¶ 5, 282 P.3d 424, 426 (App. 2012); State v. Brown,
210 Ariz. 534, 537, ¶ 5, 115 P.3d 128, 131 (App. 2005).

¶3            Both parties urge us to exercise our discretion to accept
special action jurisdiction to clarify this legal issue of first impression in
Arizona. We agree that special action jurisdiction is appropriate in this
case.

           FACTUAL AND PROCEDURAL BACKGROUND

¶4            On May 2, 2014, a grand jury issued an indictment charging
Petitioner with one count each of burglary in the second degree, trafficking
in stolen property in the first degree, and criminal nuisance.

¶5             On August 6, 2014, the State sought a supervening indictment
on the original three charges and additional charges of misconduct
involving a weapon, theft of a firearm, and possession or use of drug
paraphernalia. The grand jury, however, issued an indictment charging
Petitioner with only one count of criminal nuisance and returned a “no true
bill” vote on all other charges.

¶6            The State moved to dismiss the August 6 indictment. After
considering oral arguments, the trial court dismissed that indictment,
allowing the State to proceed on the May 2 indictment. Petitioner then filed
this petition for special action, challenging dismissal of the subsequent
indictment and, accordingly, the State’s power to proceed on the original
indictment.

                                 ANALYSIS

¶7            Petitioner argues the August 6 supervening indictment
necessarily replaced or voided the May 2 indictment. We disagree and hold
that a supervening indictment does not automatically replace or void the
original indictment.

¶8             As support for his argument, Petitioner relies on People v.
Jones, 206 A.D.2d 82 (N.Y. App. Div. 1994). In Jones, the New York Supreme
Court’s appellate division held in a divided (3-2) opinion that a second
grand jury’s vote of “no true bill” to a re-presentment of charges contained
in an earlier indictment nullified the original indictment. Id. at 83, 87. The
Jones court, however, relied on an interpretation of a unique New York
statutory scheme governing superseding indictments that is not present
here. See id. at 84-87 (citing N.Y. McKinney’s C.P.L. §§ 190.75(3), 200.80,


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                           CEASAR v. CAMPBELL
                            Opinion of the Court

210.20(1)(h)). Because no such legislative scheme exists in Arizona, we find
Jones unhelpful. See State v. Hardin, 169 Ariz. 440, 441-42, 819 P.2d 1026,
1027-28 (App. 1991) (rejecting the State’s reliance on People v. Jacquin, 485
N.Y.S.2d 477 (N.Y. Cnty. Ct. 1985), a case relying on a New York statute not
present in Arizona).

¶9             In holding that a superseding indictment does not
automatically replace or void an existing indictment, we are guided instead
by this court’s previous opinion in Hardin, as well as by persuasive federal
authority. Although we recognize that we are not necessarily bound by
federal authority, see, e.g., Pool v. Superior Court ex rel. Pima Cnty., 139 Ariz.
98, 108, 677 P.2d 261, 271 (1984), we nevertheless find such authority helpful
in this case. See generally State v. Coconino Cnty. Superior Court (Mauro), 139
Ariz. 422, 678 P.2d 1386 (1984) (recognizing a defendant’s citation to
persuasive federal authorities); State v. Mangum, 214 Ariz. 165, 171-72, ¶ 24,
150 P.3d 252, 258-59 (App. 2007) (recognizing that interpretations of federal
statutes by federal courts are persuasive authority when Arizona courts
interpret similar state statutes (citing cases)).

¶10            In Hardin, the defendant was involved in a high-speed chase
that ended with his vehicle crashing into the rear of a police vehicle. 169
Ariz. at 441, 819 P.2d at 1027. He was charged with several felony offenses,
and also received a citation requiring him to appear before the city court on
a charge of misdemeanor DUI. Id. Before the defendant appeared in city
court, however, a grand jury issued a supervening indictment, charging
him with nine offenses, including two felony counts of DUI associated with
the incident.2 Hardin, 169 Ariz. at 441, 819 P.2d at 1027. Before trial was
held in superior court on the charges present in the supervening
indictment, the defendant pled guilty in city court to misdemeanor DUI,
and then filed a motion in superior court to dismiss the felony DUI counts
on grounds of double jeopardy. Id. The superior court granted the motion,
and the State appealed. Id. This court affirmed, reasoning that the
supervening indictment in superior court for felony DUI did not
automatically oust the city court of jurisdiction to proceed on the previous
misdemeanor citation for the same DUI offense. Id. at 441-42, 819 P.2d at
1027-28. Concluding the State and city must be considered a single entity

2       “Arizona law allows a prosecuting attorney to proceed with felony
charges by way of an indictment, which reflects a grand jury’s
determination that probable cause exists to believe the defendant has
committed the charged offense, or by information.” State v. Gomez, 212
Ariz. 55, 59-60, ¶ 25, 127 P.3d 873, 877-78 (2006) (citing Ariz. Const. art. 2,
§ 30; State v. Bojorquez, 111 Ariz. 549, 553, 535 P.2d 6, 10 (1975)).


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                          CEASAR v. CAMPBELL
                           Opinion of the Court

in the context presented, this court explained the State could have avoided
the unintended result of having two open cases by securing the dismissal
of the city court charges. Id. at 442-43, 819 P.2d at 1028-29. Consequently,
in Hardin, this court treated the supervening indictment as coexisting with,
and not necessarily replacing, the previous charges.

¶11            This court’s holding in Hardin comports with the federal
courts’ treatment of superseding indictments. As the First Circuit Court of
Appeals has noted, “It is clear that the grand jury’s return of a superseding
indictment does not void the original indictment.” United States v. Vavlitis,
9 F.3d 206, 209 (1st Cir. 1993) (citing United States v. Friedman, 649 F.2d 199,
202 (3d Cir. 1981); United States v. Holm, 550 F.2d 568, 569 (9th Cir.), cert.
denied, 434 U.S. 856 (1977)). Although a defendant may rely on the Double
Jeopardy Clause3 to prevent reprosecution following an acquittal or
conviction on a superseding indictment, the defendant “may not rely on the
notion that a superseding indictment instantaneously nullifies the original
indictment.” Vavlitis, 9 F.3d at 209 (citing United States v. Bowen, 946 F.2d
734, 736 (10th Cir. 1991) (finding “no authority which supports . . . that a
superseding indictment zaps an earlier indictment to the end that the earlier
indictment somehow vanishes into thin air”)); see also United States v. Cerilli,
558 F.2d 697, 700 n.3 (3d Cir. 1977) (“As we understand it, there are two
pending indictments against the defendants, and the government may
select one of them with which to proceed to trial.”).

¶12           We agree with the reasoning of the federal appellate courts.
An indictment issued by a prior grand jury is not automatically nullified or
voided by an indictment issued by a subsequent grand jury. Instead, each
indictment will generally remain valid and in effect until one is dismissed,
see Ariz. R. Crim. P. 16.6, they are consolidated by court order, see Ariz. R.
Crim. P. 13.3(c), or a jury is impanelled for prosecution as to one, which
would invoke the constitutional prohibition on double jeopardy as to the
other. See Vavlitis, 9 F.3d at 209-10. Both indictments in this case remained

3       See U.S. Const. amend. V; see also Ariz. Const. art. 2, § 10. This court
ordinarily interprets our state’s constitutional prohibition against double
jeopardy in conformity with federal interpretations of the same clause in
the federal constitution. See State v. Eagle, 196 Ariz. 188, 190, ¶ 5, 994 P.2d
395, 397 (2000) (recognizing that “the two clauses have been held to grant
the same protection to criminal defendants” (citations omitted)); but see
Pool, 139 Ariz. at 108-09, 677 P.2d at 271-72 (recognizing the general rule but
declining to rely on the federal interpretation in light of a mistrial caused
by intentional prosecutorial misconduct resulting in prejudice to the
defendant).


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                         CEASAR v. CAMPBELL
                          Opinion of the Court

valid until the trial court granted the State’s motion to dismiss the
supervening indictment. See id. at 209.

¶13            Further, the record contains no evidence of prosecutorial
vindictiveness or other impropriety on the part of the State, see generally
Herbst, 565 F.2d at 643, and nothing indicates Petitioner has been denied a
substantial procedural right. See Ariz. R. Crim. P. 12.9(a). Under the
circumstances presented here, we find no error in the trial court’s ruling
granting the State’s motion to dismiss the second indictment and allowing
the State to proceed on the first indictment.

                             CONCLUSION

¶14            For the above stated reasons, we conclude the trial court did
not err in granting the State’s motion to dismiss the supervening indictment
and allowing the State to proceed on the original indictment against
Petitioner. We therefore accept jurisdiction of the special action petition,
but deny relief.




                                  :gsh




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