                    SUPREME COURT OF ARIZONA
                             En Banc

STATE OF ARIZONA,                )     Arizona Supreme Court
                                 )     No. CR-02-0300-PR
                                 )
                                 )     Court of Appeals
                        Appellee,)     Division One
                                 )     Nos. 1 CA-CR 01-0448
                                 )          1 CA-CR 01-0468
                                 )          (CONSOLIDATED)
               v.                )
                                 )     Maricopa County
                                 )     Superior Court
                                 )     No. CR 2000-010373
KENNETH DALE MEINHARDT,          )
                                 )
                                 )     MEMORANDUM DECISION
                                 )     (Not for Publication
                       Appellant.)     Ariz. R. Sup. Ct. 111)
                                 )

       Appeal from the Superior Court for Maricopa County
              The Honorable Edward O. Burke, Judge
              The Honorable Crane McClennen, Judge

                            AFFIRMED

                 Court of Appeals, Division One
            Memorandum Decision, filed July 25, 2002

                      REVERSED AND REMANDED

JANET A. NAPOLITANO, FORMER ARIZONA ATTORNEY GENERAL     Phoenix
TERRY GODDARD, ARIZONA ATTORNEY GENERAL
     by   Randall M. Howe, Chief Counsel,
          Criminal Appeals Section
     and Consuelo M. Ohanesian, Assistant Attorney General
Attorneys for Appellee

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER              Phoenix
     by   Louise Stark, Deputy Public Defender
Attorneys for Appellant
B E R C H, Justice

¶1          The   State   of   Arizona   seeks   review   of   the   court   of

appeals’ memorandum decision reversing two of Defendant Kenneth

Meinhardt’s four convictions for armed robbery.           The State asserts

that the court of appeals erred in finding that the trial judge

abused his discretion by precluding two alibi witnesses from

testifying as a sanction for Defendant’s late disclosure of his

alibi defense.     A divided panel of the court of appeals reversed

the two convictions on the ground that the trial judge failed to

make a finding that Defendant acted in bad faith and failed to

consider alternative sanctions that would have had less effect on

Defendant’s case. State v. Meinhardt, 1 CA-CR 01-0448, 1 CA-CR 01-

0468, ¶¶ 11-13 (Ariz. App. July 25, 2002) (consolidated) (mem.

decision). We affirm the trial court’s imposition of sanctions and

reverse the court of appeals’ decision on this issue.

                                    FACTS

¶2          Defendant Meinhardt was charged with five counts of armed

robbery.    The first two crimes occurred in late 1999 and the next

three occurred in June, 2000.      The trial court severed counts 1 and

2 from counts 3, 4, and 5, and, on the State’s motion, dismissed

count 4.    Defendant was found guilty of counts 3 and 5 at his first

trial.

¶3          Defendant’s first trial was scheduled to start on January

16, 2001.   On January 11, just five days before trial was to begin,

                                     -2-
Defendant requested a continuance, which the court granted.      On

January 19, three days after the original trial date and just four

days before the continued trial was to begin, Defendant disclosed

that he wished to present an alibi defense supported by two

witnesses, his mother and her employer.1   He avowed that his mother

would testify that he was with her the night the armed robbery

alleged in count 3 was committed.    She was to testify that she had

been having trouble with the car she used for her bank deposit

carrier route that week, so Defendant drove the car in case it

broke down.   Her employer was to testify that he knew of the

mother’s car troubles and to verify that she was working during the

hours of the robbery.    The employer could not verify, however,

whether Defendant was with his mother at the time the robbery took

place.

¶4        The State moved to preclude the witnesses from testifying

based on the late disclosure of the defense and witnesses.      The

State argued that Defendant failed to comply with Rule 15.2 of the

Arizona Rules of Criminal Procedure, which at that time required

that defendants give notice of defenses and witnesses within twenty

days of arraignment, which would have required their disclosure by

July 20, 2000.   The State also contended that it would suffer

prejudice because of the late disclosure, as the prosecutor would



     1
          Defendant had a third alibi witness for count 4, but that
count was dismissed, rendering the witness unnecessary.

                               -3-
not have time to conduct a sufficient rebuttal investigation.   The

State sought sanctions pursuant to Rule 15.7(a) of the Arizona

Rules of Criminal Procedure, which lists the preclusion of evidence

and witnesses as potential sanctions for the violation of Rule

15.2.

¶5          During the January 23 hearing on the motion, the trial

judge questioned Defendant’s counsel about the late disclosure.

Defense counsel responded that the mother’s advanced age and her

confusion regarding the five dates on which the robberies occurred

caused her not to realize that Defendant had been with her when one

of the robberies took place.       When asked why Defendant never

mentioned this potential alibi after sitting in jail for six or

seven months with little else to ponder,2 defense counsel could not

explain.

¶6          Recognizing that the law did not permit him “to preclude

witnesses if there’s a less severe sanction available,” the trial

judge then questioned whether alternative sanctions would suffice

to remedy the extremely delayed disclosure.    The only alternative

suggested by the defense was a continuance, but the prosecutor

protested that another continuance would “‘penalize conscientious

practitioners’ and allow[] the defendant to continue the case once

again.” Citing Defendant’s complete failure to timely disclose his



        2
          Defendant was arrested and incarcerated at the end of
June, 2000. He remained in jail until his trial in January, 2001.

                                 -4-
alibi defense and witnesses to either his counsel or the court, and

noting that, had the trial commenced on January 16 when it was

originally scheduled, the witnesses would not have been presented

because they had not been discovered, the trial judge granted the

State’s motion to preclude the witnesses.              He did not, however,

preclude Defendant from testifying to the defense.

                                  DISCUSSION

       A.   Trial Issues

¶7          We    review    the   trial   judge’s     decision    to   preclude

witnesses from testifying for abuse of discretion.                See State v.

Towery, 186 Ariz. 168, 186, 920 P.2d 290, 308 (1996).                  We also

assume that trial judges know and apply the law in reaching their

determinations.      E.g., State v. Lee, 189 Ariz. 608, 616, 944 P.2d

1222, 1230 (1997) (quoting Walton v. Arizona, 497 U.S. 639, 653

(1990), and citing State v. Stokley, 182 Ariz. 505, 519, 898 P.2d

454, 468 (1995)).

¶8          This court has set forth four factors that trial judges

must   consider    before    precluding     witness   testimony    under   Rule

15.7(a)(4) for a violation of the disclosure rules:               1) how vital

the testimony is to the case, 2) any surprise and prejudice to the

opposing party, 3) whether bad faith or willfulness motivated the

violation, and 4) any other circumstances relevant to the issue.

See State v. Smith (Joseph Clarence, Jr.), 123 Ariz. 243, 252, 599

P.2d 199, 208 (1979) (footnotes omitted).

                                      -5-
¶9        In this case, the record reflects that the trial judge

conscientiously considered all these factors.    The testimony was

important to Defendant’s case. If believed, the mother’s testimony

would have established an alibi defense for count 3.3     Moreover,

the eyewitness to count 3 was certain that the perpetrator of that

crime was the same person who committed the armed robbery detailed

in count 5.   Thus any doubt cast upon Defendant’s involvement in

the robbery charged in count 3 would also have cast doubt upon his

involvement in the robbery charged in count 5.

¶10       The trial judge also considered the surprise to the State

occasioned by the late disclosure of the alibi defense and two

witnesses. The State had been preparing its case against Defendant

for more than six months, unaware that Defendant contemplated an

alibi defense.   At the very least, the State would have required a

continuance to prepare to rebut the new evidence.       Defendant’s

offer to make the alibi witnesses immediately available for the

State to interview did not alleviate the problem.   The prosecutor

was unable to interview them at the time proposed by Defendant’s

counsel, which was the day before the trial was set to start.

Moreover, the State asserted that it would need to do additional

investigation to obtain rebuttal evidence and witnesses. Defendant

would also have gained additional time to prepare through his


      3
          As the trial court correctly observed, the employer’s
testimony would not have shed light on Defendant’s whereabouts at
the time the robbery took place.

                                -6-
failure to follow the rules.

¶11         As to the third factor, bad faith or willfulness, the

court of appeals determined that, because the trial judge did not

specifically find that Defendant acted in bad faith, he could not

preclude    the   witnesses   from   testifying.      In   its   memorandum

decision, the court stated, “it is clear the [trial] court deemed

defendant negligent in his failure to disclose; however, the court

never found defendant guilty of any bad faith.” Meinhardt, 1 CA-CR

01-0448, 1 CA-CR 01-0468, slip op. at ¶ 11 (emphasis added).              Our

review of the record, however, shows that the trial judge found

more than negligent nondisclosures, and he clearly understood and

applied the relevant cases and rules.

¶12         During the hearing on January 23, the trial judge read

and discussed State v. Killean, 185 Ariz. 270, 271, 915 P.2d 1225,

1226 (1996), a case from this court affirming a trial court’s

preclusion of evidence for violation of Rule 15.2. The trial judge

properly read Killean to say that a finding of bad faith is not

necessary if a willful failure to disclose is shown.               See id.

Thus, while he did not specifically make a finding of bad faith or

willful failure to disclose, the trial judge understood that these

behaviors served as the predicate to preclusion of witnesses or

evidence.     Having   then   ruled    that   the   witnesses    should    be

precluded, he implicitly found willful behavior on Defendant’s

part.   The record of the hearing bears this out.


                                     -7-
¶13       Moreover, the trial judge observed that in Killean, it

was the defense counsel, not the defendant himself, who was guilty

of the rule violation, leading Justice Zlaket, in dissent, to

observe that if the client had known and approved the violation,

“it may be appropriate to exclude evidence.”          Id. at 272, 915 P.2d

at 1227 (Zlaket, J., dissenting).            The trial judge even noted

Justice Zlaket’s comment that “[a] similar, but separate, analysis

might be necessary with respect to the defendant if there is any

indication that [the defendant] had a hand in the late disclosure.”

Id.

¶14       The    trial    judge   then     analyzed   Defendant’s   active

participation in the late disclosure at issue before him.              He

questioned why, during the six months he sat in jail, Defendant did

not   remember   his     potential   alibi    sooner.4     Following   his


      4
          The trial judge reasoned as follows:

          I’m still concerned with the fact that if Mr.
          Meinhardt had been driving Mrs. Meinhardt
          around that night, that he would have known
          that. And to say, “well, you know, there were
          just so many robberies in so much time, it’s
          just so hard to pin down the dates,” that
          doesn’t make sense to me. It just seems to
          me, if someone, like Mr. Meinhardt, were in
          his position, facing all these years, he would
          sit down and try to figure out exactly what he
          was doing each f [sic] those hours where he
          was charged with robbing somebody. And if he
          was driving his mother night after night for a
          week’s time, he would have known this.      It
          just seems, to me, odd that his mother would
          come up and say, “Gee, he was driving me.”
          And, suddenly, the light bulb goes off in Mr.

                                     -8-
questioning    of    Defendant’s      lawyer,   the   judge     concluded     that

Defendant himself had willfully failed to timely disclose his alibi

defense and witnesses.

¶15         The trial judge also observed this court’s instruction to

impose less intrusive sanctions than the preclusion of witnesses or

evidence if such alternatives are available and adequate to remedy

the disclosure violation.        See Smith, 123 Ariz. at 252, 599 P.2d at

208.   He determined that preclusion of Defendant’s alibi witnesses

was    justified    in   light   of   Defendant’s     failure    to   alert   his

attorney, the court, or the State of the defense until the eve of

the second trial setting.        In so holding, he implicitly concluded

that no lesser sanction would suffice.           We note that the judge did

not preclude Defendant from raising the alibi defense, should he

have decided to testify; rather, he precluded the corroborating



            Meinhardt’s mind, “Oh, yeah, I was driving
            her.” It just doesn’t make sense to me.
                 Further – well, I’ve heard no explanation
            why Mr. Meinhardt didn’t tell you this in this
            6 or 7 months that this thing has been going
            on, since the charges.
                 . . . .
                 So he’s taken into custody on [June]
            22nd, and he knows what the charges are.
            That’s only 2 weeks after this happened. It
            doesn’t explain why he didn’t sit down right
            then and say, “Well, gosh, what was I doing 2
            weeks ago?”
                 . . . .
                 And further, if this trial would have
            started on the 16th, a week ago today, and had
            finished when everyone thinks it would have,
            this would have never come to light.

                                       -9-
witnesses from testifying.

¶16           Imposing sanctions is a discretionary matter and there

are costs to the system and to victims of crime in granting

continuances.      See Ariz. Const. art. 2, § 2.1(A)(10).             We will not

substitute our discretion in these matters for that of the trial

judge.     See State v. Veatch, 132 Ariz. 394, 396, 646 P.2d 279, 281

(1982).       Instead, we will review each decision for an abuse of

discretion.      See Towery, 186 Ariz. at 186, 920 P.2d at 308.                   We

find no abuse of discretion in the trial court’s ruling precluding

the witnesses from testifying in support of Defendant’s alibi

defense as a sanction for discovery violations.

      B.      Sentencing Issues

¶17           Defendant raised two sentencing issues in the court of

appeals.      Meinhardt, 1 CA-CR 01-0448, 1 CA-CR 01-0468, slip op. at

¶¶ 14-20.       The first issue concerned a discrepancy between the

minute entry and the oral pronouncement of sentence contained in

the transcript of the proceedings.              Id. at ¶ 15.   The second issue

was   whether    all    four    counts    should    have   been     designated   as

dangerous offenses.       Id. at ¶ 18.          The court of appeals reversed

Defendant’s convictions on counts 3 and 5 and therefore did not

decide the sentencing issues regarding those counts. Id. at ¶¶ 17,

18.      We    remand   these    issues    to    the   court   of    appeals     for

consideration in light of this opinion.




                                         -10-
                             CONCLUSION

¶18       We reverse the decision of the court of appeals and

reinstate Defendant’s convictions on counts 3 and 5.      We remand

this case to the court of appeals for reconsideration of the

sentencing issues relating to counts 3 and 5.




                           Rebecca White Berch, Justice


CONCURRING:



Charles E. Jones, Chief Justice



Ruth V. McGregor, Vice Chief Justice



Michael D. Ryan, Justice




                                -11-
