Petition for Writ of Certiorari — Jeffrey Richard Martinson, Petitioner v. Arizona

No. __________

IN THE

SUPREME COURT OF THE UNITED STATES

JEFFREY R. MARTINSON

Petitioner

vs.

STATE OF ARIZONA

Respondent

On Petition for a Writ of Certiorari

to the Arizona Court of Appeals

PETITION FOR A WRIT OF CERTIORARI

Brent E. Graham

Counsel of Record

Law Office of Brent E. Graham, PLLC

P.O. Box 1355

Dolores, Colorado 81323

(602) 399-2349

brentgraham@msn.com

VARCOE LAW FIRM, PLLC

Robyn Greenberg Varcoe

WILLMOTT & ASSOCIATES, PLC

Jennifer L. Willmott

Attorneys for Petitioner

QUESTION PRESENTED.

Whether the Double Jeopardy Clause of the Fifth Amendment bars retrial

where the trial court dismissed the case with prejudice for bad faith prosecutorial

misconduct after granting a new trial following a conviction at trial.

i

LIST OF PARTIES.

(i).

All parties appear in the caption of the case on the cover page.

(ii).

This petition is not filed by or on behalf of a nongovernment

corporation.

(iii). List of proceedings of courts directly related to this case:

1.

State v. Jeffrey Martinson, CR2004-124662-001. Maricopa County

Superior Court, Arizona. Judgment entered March 27, 2012.

2.

State ex rel. Montgomery v. Duncan, No. 1 CA-SA 12- 0217 (mem.

decision). Arizona Court of Appeals. Judgment entered November

30, 2012.

3.

State v. Jeffrey Martinson, CR2004-124662-001. Maricopa County

Superior Court, Arizona. Judgment entered November 19, 2013

4.

State v. Martinson, 241 Ariz. 93, 384 P.3d 307 (App. 2016). Arizona

Court of Appeals. Judgment entered September 22, 2016.

5.

State v. Jeffrey Martinson, CR2018-002279-001, Maricopa County

Superior Court, Arizona. June 13, 2018. Case currently pending trial.

6.

Martinson v. Adelman, ex rel State of Arizona, 1 CA-SA 21-0017

(mem. decision), Arizona Court of Appeals. Judgment entered March

9, 2021.

7.

Martinson v. Adelman, ex rel State of Arizona, CR-21-0131-PR,

Arizona Supreme Court. Judgment entered June 30, 2021.

ii

TABLE OF CONTENTS.

Opinions Below.......................................................................................................... 1

Jurisdiction ................................................................................................................. 1

Constitutional and Statutory Provisions Involved ..................................................... 4

Statement of the Case................................................................................................. 4

Reasons for Granting this Petition ............................................................................. 6

I.

The Arizona Court of Appeals Decision That the Trial Court’s Dismissal

with Prejudice For Bad Faith Prosecutorial Misconduct was Merely a

Procedural Hearing Conflicts with This Court’s Settled Precedent. .......... 6

A. Double Jeopardy Doctrine Regarding Dismissals. ............................... 6

B. The Trial Court Intended the Dismissal to Bar Further Prosecution.... 7

C. The Trial Court’s Order Dismissing This Case With Prejudice

Constituted An Acquittal Under These Circumstances. ...................... 8

D. The Trial Court’s Dismissal Resolved Factual Issues in Martinson’s

Favor Thus Functioning as an Acquittal Barring Further Prosecution

Under Double Jeopardy Principles. ................................................... 10

II.

The Arizona Court of Appeals Decision Conflicts With This Court’s

Established Precedent. .............................................................................. 18

III.

The Trial Court’s Earlier Grant of New Trial Also Resolved a Factual

Element in Martinson’s Favor. ................................................................. 22

IV.

The State’s Appeal Resulting in the Opinion in State v. Martinson,

241Ariz. 93, 384 P.3d 307 (App. 2016), Was Improvidently Granted. ... 23

V.

Conclusion ................................................................................................ 27

iii

INDEX TO APPENDICES.

Appendix A.

March 9, 2021. Martinson v. Adleman ex rel State of Arizona, No.

1 CA-SA 21- 0017 (memorandum decision).

Appendix B.

June 30, 2021. Order of the Arizona Supreme Court Denying

Petition For Review.

Appendix C.

March 27, 2012. Order Granting Motion for Mistrial.

Appendix D.

November 20, 2012. State ex rel. Montgomery v. Duncan, No. 1

CA-SA 12- 0217 (memorandum decision).

Appendix E.

November 19, 2013. Order Dismissing Case with Prejudice.

Appendix F.

September 22, 2016. State v. Martinson, 241 Ariz. 93, 384 P.3d

307 (App. 2016).

Appendix G.

August 7, 2020. Motion to Dismiss for Double Jeopardy

Violation. (Motion exhibits omitted. Available upon request.)

Appendix H.

October 16, 2020. Superior Court Order Denying Motion to

Dismiss For Double Jeopardy Violation.

iv

TABLE OF AUTHORITIES CITED.

CASES

PAGE NUMBER

SUPREME COURT CASES

Abney v. United States, 431 U.S. 651 (1977). ....................................................... 2, 3

Ashe v. Swenson, 397 U.S. 436 (1970). ................................................................... 27

Carroll v. United States, 354 U.S. 394 (1957). ....................................................... 24

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949) ......................... 2, 3

Duncan v. Tennessee, 405 U.S. 127 (1972). ............................................................ 27

Evans v. Michigan, 568 U.S. 313 (2013). ..........................................7, 10, 19, 20, 21

Fong Foo v. United States, 369 U.S. 141 (1962). .......................................23, 25, 26

Green v. United States, 355 U.S. 184 (1957). ......................................................... 25

Kepner v. United States, 195 U.S. 100 (1904)......................................................... 24

Lee v. United States, 432 U.S. 23 (1977). .................................................................. 7

Mitrish v. Lancaster, 569 U.S. 351 (2013). ............................................................. 22

North Carolina v. Pearce, 395 U. S. 711 (1969). ...................................................... 6

Oregon v. Kennedy, 456 U.S. 667 (1982).................................................................. 8

v

Richardson v. United States, 468 U.S. 317 (1984). ............................................. 7, 19

Sanabria v. United States, 437 U.S. 54 (1978). ....................................................... 26

Smith v. Massachusetts, 543 U.S. 462 (2005). ........................................................ 23

Tibbs v. Florida, 457 U.S. 31 (1982). ................................................................18, 27

United States v. Ball, 163 U.S. 662 (1896). .......................................................18, 25

United States v. Dinitz, 424 U.S. 600 (1976)...................................................7, 9, 18

United States v. Jorn, 400 U.S. 470 (1976). .............................................................. 7

United States v. Martin Linen Supply Co., 430 U.S. 564 (1977). .........10, 23, 25, 26

United States v. Sanges, 144 U.S. 310 (1892). ........................................................ 24

United States v. Scott, 437 U.S. 82 (1978). ............................ 8, 9, 10, 20, 21, 23, 24

United States v. Wilson, 420 U.S. 332 (1975). ........................................................ 24

OTHER FEDERAL CASES

U.S. v. Black Lance, 454 F.3d 922 (8th Cir. 2006) ............................................22, 23

STATE SUPREME COURT CASES

State v. Moody, 208 Ariz. 424, 94 P.3d 1119 (2004). ............................................. 21

vi

STATE COURT OF APPEALS CASES

State v. Martinson, 241 Ariz. 93, 384 P.3d 307 (App. 2016). ............................. 5, 23

State v. Sosnowicz, 229 Ariz. 90, 270 P.3d 917 (App. 2012).. ................................ 22

FEDERAL STATUTES

28 U. S. C. § 1257(a).. ........................................................................................... 1, 3

28 U.S.C. § 1291. ................................................................................................... 2, 3

vii

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the

judgment below.

OPINIONS BELOW.

The unpublished decision of the Arizona Court of Appeals, the highest state

court to review the merits, was decided on March 9, 2021. A copy of that decision

appears at Appendix A.

JURISDICTION.

The Arizona Supreme Court denied a timely petition for review on June 30,

2021. A copy of the order denying review appears at Appendix B. Pursuant to the

Court’s order dated July 19, 2021, granting 150 days within which to file a petition

for cases that were final before July 19, 2021, the current due date for the filing of

this petition is November 29, 2021. S.Ct.R. 13.1.

This Court has jurisdiction pursuant to 28 U.S.C. § 1257(a). This is an

interlocutory appeal. While piecemeal litigation is not favored, Martinson’s claim

stems from a pre-trial motion to dismiss the indictment on Fifth Amendment

1

Double Jeopardy grounds. Therefore, it presents a recognized exception to the

disfavor for piecemeal litigation.

In Abney v. United States, 431 U.S. 651 (1977), the Court permitted

interlocutory appeal of an order denying a pretrial motion to dismiss an indictment

on double jeopardy grounds. Discussing the relevant factors, the Court recognized

“the rights conferred on a criminal accused by the Double Jeopardy Clause would

be significantly undermined if appellate review of double jeopardy claims were

postponed until after conviction and sentence.” Id. at 660. Further, “[I]f a criminal

defendant is to avoid exposure to double jeopardy and thereby enjoy the full

protection of the Clause, his double jeopardy challenge to the indictment must be

reviewable before that subsequent exposure occurs.” Id. at 662.

The Abney Court found that while the pretrial denial of a motion to dismiss

an indictment on double jeopardy grounds is obviously not “final” in the sense that

it terminates the criminal proceedings, nevertheless, 28 U.S.C. § 1291 does not bar

an immediate appeal from such a pretrial order. Id. at 657.

Such pretrial orders fall within the so-called “collateral

order” exception to the final-judgment rule first

announced in Cohen v. Beneficial Industrial Loan Corp.,

337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and

are thus “final decisions” within the meaning of § 1291.

Id.

2

The Cohen Court observed that a “final decision” was to be given a

“practical rather than a technical construction.” 337 U.S. at 546. The Court

identified three factors to determine if the decision was final. First, the District

Court's order had fully disposed of the question of the state security statute's

applicability in federal court; in no sense, did it leave the matter “open, unfinished

or inconclusive.” Id. Second, the decision was not simply a “step toward final

disposition of the merits of the case (which would) be merged in final judgment”;

rather, it resolved an issue completely collateral to the cause of action asserted.

Ibid. And, finally, the decision had involved an important right which would be

“lost, probably irreparably,” if review had to await final judgment; hence, to be

effective, appellate review in that special, limited setting had to be immediate.

Ibid.

Utilizing the Cohen factors, the Abney Court held that pretrial orders

rejecting claims of former jeopardy, were “final decisions” and thus satisfy the

jurisdictional prerequisites of § 1291. 431 U.S. at 662.

Here, all three of the Cohen factors are present. The Arizona court of

appeal’s decision left nothing “open, unfinished or inconclusive.”

Next, the

decision was not a step toward final disposition of the case, but rather, is an issue

collateral to the cause of action asserted.

Lastly, the decision involved an

important right which would be “lost, probably irreparably,” if review had to await

3

final judgment. To be effective, appellate review in this special, limited setting

must be immediate.

As a result, the Arizona court’s decision here constitutes a final decision.

Therefore, jurisdiction is proper under § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.

The Fifth Amendment to the United States Constitution provides in

relevant part, “nor shall any person be subject for the same offence to be twice

put in jeopardy of life or limb.” U.S. Const. amend. V.

STATEMENT OF THE CASE.

Jeffrey Martinson is facing a second trial for the premeditated/felony murder

and child abuse of his five-year old son. Martinson was convicted at trial, granted

a new trial based on juror misconduct and improper expert opinion, and then had

his case dismissed with prejudice because of bad faith prosecutorial misconduct.

In 2004, Martinson was indicted for one count of felony murder and one

count of child abuse. He was convicted at trial on November 14, 2011. However,

on March 27, 2012, the trial court granted Martinson’s motion for mistrial based on

juror misconduct and the admission of improper expert opinion testimony.

Appendix C.

4

In June 2012, the State obtained a new indictment. However, the trial court

dismissed that indictment as having been obtained while the 2004 indictment was

still pending in violation of the rules of criminal procedure. The State filed a

special action.

The court of appeals granted relief finding the State had established good

cause for dismissing the 2004 indictment. The court left open whether the State’s

attempt to dismiss the 2004 indictment was done in bad faith. Appendix D, State

ex rel. Montgomery v. Duncan, No. 1 CA-SA 12- 0217 (mem. decision).

On remand, the trial court conducted a hearing on whether the State had

acted in bad faith in attempting to dismiss the 2004 indictment. On November 19,

2013, the trial court dismissed the 2004 indictment with prejudice based on bad

faith prosecutorial misconduct. Appendix E.

The State appealed. In 2016, the court of appeals reversed the trial court’s

dismissal with prejudice finding “the State was entitled to pursue a theory that

Martinson committed the predicate felony of child abuse with intent to kill J.E.M.,

not merely injure him.” Appendix F, State v. Martinson, 241 Ariz. 93, 99, 384

P.3d 307, 313 (App. 2016). The court found the superior court’s contrary ruling

was legally erroneous. Id. The court vacated the order dismissing the 2004

indictment with prejudice and remanded with instructions to grant the State’s

motion to dismiss the indictment without prejudice. Id. at 102, ¶ 44.

5

Reindicted in 2018, Martinson moved to dismiss for the violation of his

rights under the Double Jeopardy Clauses of both the U.S. and Arizona

Constitutions.

Appendix G.

On October 16, 2020, the trial court denied

Martinson’s motion. Appendix H. Martinson filed a special action, which was

denied on March 9, 2021. Appendix A. On June 30, 2021, the Arizona Supreme

Court denied Review. Appendix B.

REASONS FOR GRANTING THE PETITION.

I. The Arizona Court of Appeals Decision That the Trial Court’s

Dismissal with Prejudice For Bad Faith Prosecutorial Misconduct was

Merely a Procedural Hearing Conflicts with This Court’s Settled

Precedent.

A.

Double Jeopardy Doctrine Regarding Dismissals.

The Double Jeopardy Clause of the Fifth Amendment commands that “[n]o

person shall ... be subject for the same offence to be twice put in jeopardy of life or

limb.” Under this Clause, once a defendant is placed in jeopardy for an offense,

and jeopardy terminates with respect to that offense, the defendant may neither be

tried nor punished a second time for the same offense. North Carolina v. Pearce,

395 U.S. 711, 717 (1969).

6

When, such as here, a defendant persuades the court to declare a mistrial,

jeopardy continues and retrial is generally allowed. Evans v. Michigan, 568 U.S.

313, 326 (2013), citing United States v. Dinitz, 424 U.S. 600 (1976). Yet, jeopardy

continues only so long as it is not terminated. Richardson v. United States, 468

U.S. 317, 325 (1984).

Therefore, when the trial court here granted the new trial in 2012 based on

the improper admission of expert opinion evidence and juror misconduct, jeopardy

continued, and retrial was not barred.

However, when the trial court later

dismissed the case with prejudice on November 19, 2013, based on bad faith

prosecutorial misconduct, that order terminated jeopardy. Appendix E.

B.

The Trial Court Intended the Dismissal to Bar Further

Prosecution.

In determining the preclusive effect of the trial court’s dismissal, the critical

question is whether the order contemplated an end to all prosecution of the

defendant for the offense charged. Lee v. United States, 432 U.S. 23, 30 (1977). A

mistrial ruling invariably rests on grounds consistent with re-prosecution, United

States v. Jorn, 400 U.S. 470, 476 (1976), while a dismissal may or may not do so.

Lee, at 30. It is the circumstances surrounding termination of the first trial that

7

dictate whether the double jeopardy clause bars retrial. Oregon v. Kennedy, 456

U.S. 667, 678-679 (1982).

Here, while the grant of mistrial in 2012 contemplated a re-prosecution, the

trial court’s dismissal with prejudice in 2013 was intended to end all prosecution of

Martinson for the offenses charged. The trial court’s dismissal order thoroughly

and scrupulously made detailed findings of facts, and conclusions. Appendix E.

After considering all possible remedies, the trial court ultimately concluded

that the prosecutors’ misconduct was so egregious that double jeopardy protected

Martinson from the State’s multiple attempts to convict him. Id. at 28. The court

found that the prosecutors’ misconduct prejudicially impacted the integrity and

fundamental fairness of the proceedings and required imposition of the ultimate

sanction—dismissal with prejudice. Id. Consequently, the trial court intended the

case be dismissed with preclusive effect.

C.

The Trial Court’s Order Dismissing This Case With Prejudice

Constituted An Acquittal Under These Circumstances.

The trial court’s dismissal here meets the test for the functional equivalent of

an acquittal as expressed in United States v. Scott, 437 U.S. 82 (1978). In Scott,

the defendant moved once before trial and twice during trial to dismiss the

8

indictment based on pre-indictment delay. At the close of all evidence, prior to

conviction or acquittal, the trial court granted the defendant’s motion. Id. at 84.

The Government appealed.

The Scott Court determined that where a defendant successfully seeks to

avoid his trial prior to its conclusion by a motion for mistrial, the Double Jeopardy

Clause is not offended by a second prosecution. Id. at 93. (Emphasis added.)

Such a motion by the defendant is deemed to be a deliberate election on his part to

forgo his valued right to have his guilt or innocence determined before the first

trier of fact.

Id.

“The important consideration, for purposes of the Double

Jeopardy Clause, is that the defendant retain primary control over the course to be

followed in the event of such err r.” [sic]. Id. at 93-94, quoting United States v.

Dinitz, 424 U.S. at 609. The Double Jeopardy Clause, which guards against

Government oppression, does not relieve a defendant from the consequences of his

voluntary choice. Scott, at 99.

With these principles in mind, the Scott Court held:

A defendant is acquitted only when “the ruling of the

judge, whatever its label, actually represents a resolution

[in the defendant's favor], correct or not, of some or all of

the factual elements of the offense charged.”

9

Id. at 97, quoting United States v. Martin Linen Supply Company, 430 U.S. 564,

571 (1977). This principle was later reiterated in Evans v. Michigan, 568 U.S. 313

(2013) where the Court observed:

Thus an “acquittal” includes “a ruling by the court that

the evidence is insufficient to convict,” a “factual finding

[that] necessarily establish[es] the criminal defendant's

lack of criminal culpability,” and any other “rulin[g]

which relate[s] to the ultimate question of guilt or

innocence.”

Id. at 319, quoting Scott, at 91, 98, and n. 11.

D.

The Trial Court’s Dismissal Resolved Factual Issues in

Martinson’s Favor Thus Functioning as an Acquittal Barring

Further Prosecution Under Double Jeopardy Principles.

Here, the trial court’s dismissal resolved issues related to the ultimate

question of guilt or innocence. The court dismissed the case with prejudice based

on bad faith prosecutorial misconduct. Appendix E. The court found that the

prosecutors’ actions violated the court’s pretrial order precluding the State from

introducing evidence of intent to kill as the murder charge was based on felony

murder. In doing so, the court resolved factual elements in Martinson’s favor. For

instance, the trial judge found:

10

 On August 25-26, 2011, prosecutors introduced Martinson’s

statements to police that were designed to provoke an admission that

Martinson intended to kill his son. The detective asked Martinson:

 Did you do this because you hate him?

 Is this something you planned out?

 So, you don’t have any remorse for killing your son at all?

 Why did you kill your little boy?

 You killed him and you know it.

Appendix E at 12.

 The State introduced plastic garbage bags found in the laundry room

and Martinson’s bedroom. DNA analysis on the bags did not connect

JEM to the evidence. Nonetheless, the State asked questions for the

sole purpose of having jurors draw the improper inference that

Martinson intentionally asphyxiated JEM.

Id.

 Along with introduction of the garbage bag evidence, the State

attempted to bolster its intent to kill theory with evidence that JEM

had a small abrasion on his upper lip. The State used the medical

examiner to advance its intent to kill theory.

Id.

11

 The State argued that the lip abrasion supported its theory that

Martinson had suffocated JEM.

The court found this evidence

inadmissible because 1) the medical examiner acknowledged and the

State was aware that he lacked the proper foundation to opine that the

cause of death was smothering or suffocation, and 2) the evidence

violated the trial court’s order prohibiting evidence supporting an

intent to kill.

Id. at 13.

 At the same hearing the prosecutors heard defense counsel question

the medical examiner concerning suffocation. The medical examiner

acknowledged that he did not have enough information to conclude

JEM had been suffocated. He admitted that was the importance of the

garbage bag and lip abrasion evidence.

Id.

 The next day, purportedly asking the medical examiner foundational

questions, the prosecutors elicited that he reviewed a police report that

said, “the decedent may have been overdosed or suffocated by his

father in the homicide attempt.” The court found this evidence, coyly

disguised as foundational, was intended to draw an inference of intent

to kill.

12

Id.

 The medical examiner, not available for testimony on consecutive

days, returned six days later and opined the cause of death was “acute

carisoprodol toxicity.”

Id.

 Notwithstanding the court’s ruling forbidding intent to kill evidence

and the medical examiner’s testimony that he had no foundation to

conclude JEM was suffocated or asphyxiated, the prosecutors elicited

the following testimony:

Q:

Were there any other pathological diagnoses that you couldn’t rule out

as being a component?

A:

Asphyxia due to smothering or suffocation, I cannot rule these two

Q:

And what about that and what couldn’t—what indications did you

out.

have that you couldn’t rule that out?

A:

The presence of abrasion on inner surface of upper lip and suspicious

circumstance.

Q:

Explain to me why you can’t rule out a component of asphyxiation or

smothering when you’ve got a drug, a possible drug overdose situation?

...

13

Q:

Are the findings, the findings—how are the findings for a drug

overdose similar to what you might see if there was a component of asphyxia or

suffocation?

Id. at 14.

When the lead detective testified, the prosecutors elicited testimony about

text messages that Martinson had exchanged with a former friend that read, “we’ll

miss you.” The prosecutors then elicited testimony from the detective concerning

the former friend’s interpretation of the text.

The trial court had expressly

precluded any testimony by the friend or the detective regarding Martinson’s

intent. The only purpose of this testimony was to show evidence of intent to kill.

Id.

 The lead detective, who knew or should have known the limitations

the court placed on the evidence, instead worked in concert with the

prosecutors in their win-by-any-means strategy.

On direct

examination the prosecutor asked:

Q:

At that point in time [at the scene], did you already have an opinion

on what was going on in the inside of that house.

A:

I kind of suspected what might have occurred.

The opinion testimony was not only suggestive, but it was also irrelevant. It

also prompted an unpredictable and improper outburst on cross examination.

14

Asked whether her suspicions precipitated her failure to process the scene more

carefully, instead of answering yes or no, the detective advanced the State’s

agenda, responding:

Q:

In fact, you made up your mind before the report came back for

carisoprodol. You’ve told us that already.

A:

Yes, I had decided he had been murdered.

Id. at 15. (Emphasis in the original.)

 When Martinson called an expert witness to testify about sudden

trauma’s impact on memory and suicidal ideation arising from a

parent’s loss of a child, the prosecutors again shifted the focus on

intent to kill.

Martinson had testified that JEM drowned in the

bathtub and he responded by attempting suicide. The prosecutors

asked the doctor about intentional “murder” theories involving the

attempted suicide.

Id.

 When the defense introduced evidence of its grief expert, Dr.

Wortman, the prosecutors attempted to elicit testimony that Dr.

Wortman was currently writing a book about murdered children:

Q:

Now I think you mentioned on direct you don’t usually do these

types[s] of cases, but you happened to be writing a book about murdered children?

15

A:

Oh, no. I’m not writing a book about murdered children. I’m writing

about traumatic bereavement, and it is designed to help therapists focus in and do a

better job then [sic] they may do now in treating somebody who had experienced

sudden traumatic loss.

...

Q:

Now, I want to talk about grief response. I think you mentioned that

there are various factors that will impact on the level of somebody’s grief response,

if I understand that correctly?

A:

Yes.

Q:

Okay. In kind of broad categories, its family relationships, whether

there was an only child, whether there was a young child, what kind of investment

there’s been in that child and whether the child was murdered as opposed to died

from a long illness?

...

Q:

Okay. And there are no studies regarding grief response in a murder

suicide or murder attempted suicide situation?

A:

There are studies on those, but not on grief response.

Q:

And that’s what I’m asking specifically, because you’re talking about

grief response, so there are no studies regarding grief response as it relates to the

murder suicide or murder attempted suicide question?

16

A:

I don’t believe so.

(Id. at 15-16.) (Emphasis in the original.)

 The State was fully aware that the only relevant grief response to

“murder” would have been felony murder. A proper inquiry would

have focused on the Defendant’s grief response to intent-to-injure the

victim under circumstances likely to cause serious physical injury or

death---not the Defendant’s intent to kill the victim. Indeed, during a

pretrial interview the prosecutor explained the difference between

felony murder and intentional murder to Dr. Wortman. Yet, in front

of the jury, the Prosecutors were sure to leave out that critical

distinction. This omission left the jury with the impression that Dr.

Wortman’s

answers

referred

to

intentional

murder

thereby

encouraging the jury to view intent to kill as a proper basis upon

which to convict the Defendant. This sequence of questions prompted

another admonition from the Court.

Id. at 16-17. (Emphasis in the original.)

The court’s findings thus related specifically to the prosecutors’ bad faith

introduction of evidence of Martinson’s intent to kill in direct violation of the

court’s order not to introduce such evidence. In finding the prosecutors committed

misconduct by violating her order, the trial judge resolved factual elements of

17

intent in Martinson’s favor. Consequently, the court’s dismissal with prejudice

functioned as an acquittal barring further prosecution under the Fifth Amendment’s

Double Jeopardy Clause. Therefore, retrial is now barred.

II.

The Arizona Court of Appeals Decision Conflicts With This

Court’s Established Double Jeopardy Precedent.

Upon re-indictment in 2018, Martinson filed a motion to dismiss based on a

double jeopardy violation. In denying Martinson’s motion, the trial court found

that double jeopardy principles did not preclude the prosecution under the current

indictment. Appendix H, at 9. The court found that the Double Jeopardy Clause

“imposes no limitations whatever upon the power to retry a defendant who has

succeeded in getting his first conviction set aside.” (Id. at 7, quoting Tibbs v.

Florida, 457 U.S. 31 (1982), quoting United States v. Ball, 163 U.S. 662, 672

(1896)). However, Martinson’s case was not reversed on appeal.

Instead, when the first trial court granted the new trial in 2012 based on the

improper admission of expert opinion evidence and juror misconduct, jeopardy

continued, and retrial was not barred. A mistrial followed by a grant of retrial

allows jeopardy to continue. See, United States v. Dinitz, 424 U.S. at 606 (A

mistrial negates the defendant's “valued right to have his trial completed by a

particular tribunal.”)

However, jeopardy continues only so long as it is not

18

terminated. Richardson v. United States, 468 U.S. 317, 325 (1984). Thus, when

the trial court later dismissed the case with prejudice in 2013 based on bad faith

prosecutorial misconduct, that order terminated jeopardy.

On special action to the Arizona Court of Appeals, in denying relief, the

court acknowledged that retrial of a defendant is prohibited where some event,

such as an acquittal, terminates jeopardy. Appendix A, at ¶ 9. However, the court

disagreed that the dismissal here terminated jeopardy and functioned as an

acquittal. (Id. at ¶ 11.) Under the court’s reasoning, because the State appealed the

dismissal and was granted relief, it was free to re-file charges against Martinson.

(Id. at ¶ 10.)

This view is not sustainable.

The dismissal terminated jeopardy and

functioned as an acquittal. Thus, appeal by the State was, in itself, prohibited as

also constituting a violation of double jeopardy. Evans v. Michigan, 568 U.S. 313

at 324-325. (See, section IV, below.)

Therefore, the court’s view is mistaken, and inconsistent with this Court’s

settled precedent. The trial court dismissed the case with prejudice. It is the

substance of a court’s decision, not the label that controls the analysis in this

context. Evans, 568 U.S. at 320. The dismissal resolved factual elements in

Martinson’s favor and was intended to terminate all proceedings against him.

19

Next, the court of appeals found that the dismissal with prejudice was not

substantive, but rather, was procedural. Appendix A, at ¶ 12. This finding is also

inconsistent with established precedent, thus constituting clear error.

The court acknowledged the distinction between substantive terminations,

which function as acquittals, and procedural terminations, which normally do not

bar retrial under double jeopardy principles. Id., at ¶ 11. The court observed:

[A]n acquittal [encompasses] any ruling that the

prosecution’s proof is insufficient to establish criminal

liability for an offense. Thus an “acquittal” includes “a

ruling by the court that the evidence is insufficient to

convict,” a “factual finding [that] necessarily

establish[es] the criminal defendant’s lack of criminal

culpability,” and any other “ruling which relate[s] to the

ultimate question of guilt or innocence.”

(Id. quoting Evans, 568 U.S. 313 at 318-19.)

Yet, the court of appeals found that the dismissal here “did not did not speak

on Martinson’s guilt or innocence….” Appendix A, at ¶ 11. Further, the dismissal

“did not resolve the issue of intent or any other elements of the charges against

him.” (Id.) This finding is factually inaccurate and misapprehends established

double jeopardy principles.

This case falls under the category of “any other ruling which relate[s] to the

ultimate question of guilt or innocence.” Evans, at 319, quoting United States v.

Scott, 437 U.S. 82, 91, 98, n. 11 (1978). The Evans Court noted the distinction

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between procedural rulings, which lead to dismissals or mistrials on a basis

unrelated to factual guilt or innocence, and substantive rulings that conclude

proceedings absolutely, and thus raise significant double jeopardy concerns. Id.

In order to function as an acquittal, the ruling of the trial, whatever its label,

need only represent a resolution in the defendant's favor, correct or not, of some or

all of the factual elements of the offense charged. Scott, 437 U.S. at 97.

Hence, contrary to the decision of the court of appeals, the dismissal

resolved factual elements in Martinson’s favor. Moreover, the hearing was not

merely procedural. The Arizona cases on prosecutorial misconduct have said that

to prevail on a claim of prosecutorial misconduct, a defendant must demonstrate

that “(1) misconduct is indeed present; and (2) a reasonable likelihood exists that

the misconduct could have affected the jury's verdict, thereby denying defendant a

fair trial.” State v. Moody, 208 Ariz. 424, 459, ¶ 145, 94 P.3d 1119, 1154 (2004).

Utilizing the Arizona test, the trial court here found misconduct was present,

and that there was a reasonable likelihood that it could have affected the jury’s

verdict, thus denying Martinson a fair trial. Appendix E. Therefore, the dismissal,

after hearing, represents a substantive proceeding that resolved factual elements in

Martinson’s favor. It was intended to conclude the proceedings absolutely, and

preclude further prosecution against Martinson. Consequently, the court of appeals

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finding that the dismissal did not resolve the issue of intent or any other elements

of the charges against Martinson is plainly erroneous.

III.

The Trial Court’s Earlier Grant of New Trial Also Resolved a

Factual Element in Martinson’s Favor.

The original trial court not only resolved factual elements in Martinson’s

favor when it dismissed the case for prosecutorial misconduct, it also resolved a

factual element in Martinson’s favor when it granted the mistrial in 2012. The

court granted the mistrial on two bases: 1) juror misconduct, and 2) an improper

expert opinion as to the manner of death. Appendix C. The court found the

medical examiner’s opinion was not based on his medical examination of the body

but rather he “parroted” the conclusions of the law enforcement investigation in

violation of State v. Sosnowicz, 229 Ariz. 90, 270 P.3d 917 (App. 2012). Such an

opinion amounted to an assessment of the credibility and investigatory acumen of

the police. 229 Ariz. at 96, 270 P.3d at 923. Thus, the trial court’s finding also

resolved the factual element of mens rea, in Martinson’s favor. C.f., Mitrish v.

Lancaster, 569 U.S. 351 (2013) (diminished capacity as a defense negating the

mens rea element of first degree murder.)

In U.S. v. Black Lance, 454 F.3d 922, 924 (8th Cir. 2006), the court found

that the resolution of the some or all the factual and legal elements need not occur

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at the same time as the ruling in the defendant’s favor. The court determined that

Fong Foo [v. United States, 369 U.S. 141 (1962),] establishes that the protection of

the Double Jeopardy Clause turns on whether the judge or jury has resolved one or

more factual elements of the government’s case, not when that resolution occurs.

(Emphasis added.)

This principle was reinforced by the Court’s subsequent

decisions in Martin Linen Supply Company, 430 U.S. 564, at 572-576 and Smith v.

Massachusetts, 543 U.S. 462, 473 (2005). Black Lance, at 924.

As a result, here, when the trial court granted Martinson’s motion for new

trial, it resolved the factual element of intent against the State when it found that

the State had improperly admitted expert evidence as to the manner of death.

Therefore, when the trial court later dismissed the case with prejudice, the court’s

prior ruling resolving the issue of intent against the State, also served as a factual

finding in Martinson’s favor supporting the dismissal as required by Scott.

IV.

The State’s Appeal Resulting in the Opinion in State v. Martinson,

241 Ariz. 93, 384 P.3d 307 (App. 2016), Was Improvidently

Granted.

By permitting the State to appeal the trial court’s dismissal with prejudice,

the Arizona Court of Appeals violated Martinson’s protections against double

jeopardy. In Scott, the Court observed that to try a defendant again upon the

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merits, even in an appellate court, is to put him a second time in jeopardy for the

same offense. Scott, at 89-90, citing Kepner v. United States, 195 U.S. 100, 133

(1904).

Martinson was convicted at trial, and then granted a retrial, which permitted

jeopardy to continue. However, the trial court’s later dismissal with prejudice

where factual elements were resolved in Martinson’s favor terminated jeopardy

and constituted the functional equivalent of an acquittal, barring not only retrial,

but also appeal by the State.

Government appeals in criminal cases are exceptional and are not favored by

the courts. Carroll v. United States, 354 U.S. 394, 400 (1957). Such appeals must

be based on express statutory authority, as the government had no right of appeal at

common law. United States v. Sanges, 144 U.S. 310 (1892).

In United States v. Wilson, 420 U.S. 332 (1975), the Court found that the

primary purpose of the Double Jeopardy Clause was to prevent successive trials,

and not Government appeals per se.

Thus, the Court held that, where an

indictment is dismissed after a guilty verdict is rendered, the Double Jeopardy

Clause did not bar an appeal since the verdict could simply be reinstated without a

new trial if the Government were successful. Id., at 345.

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Here, the trial judge contemplated a definitive end to the case. The trial

court’s dismissal with prejudice resolved factual elements in Martinson’s favor.

Hence, the trial court’s dismissal terminated the jeopardy and intended the order to

prohibit further prosecution.

As such, the dismissal terminated jeopardy and

functioned as the equivalent of an acquittal for double jeopardy purposes.

In deciding whether a second trial is permissible, one must immediately

confront the fact that petitioner was acquitted on the indictment. That “[a] verdict

of acquittal . . . [may] not be reviewed . . . without putting [the defendant] twice in

jeopardy, and thereby violating the Constitution,” has been described as “the most

fundamental rule in the history of double jeopardy jurisprudence.” Martin Linen

Supply Co., 430 U.S. at 571, quoting United States v. Ball, 163 U.S. at 671. The

fundamental nature of this rule is manifested by its explicit extension to situations

where an acquittal is “based upon an egregiously erroneous foundation.” Fong

Foo, 369 U.S. at 143. See also, Green v. United States, 355 U.S. 184, 188 (1957).

In Fong Foo the Court of Appeals held that the District Court had erred in

various rulings and lacked power to direct a verdict of acquittal before the

Government rested its case. The Court accepted the Court of Appeals’ holding that

the District Court had erred, nevertheless it found that the Double Jeopardy Clause

was “violated when the Court of Appeals set aside the judgment of acquittal and

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directed that petitioners be tried again for the same offense.” 369 U.S., at 143.

Thus, when a defendant has been acquitted at trial he may not be retried on the

same offense, even if the legal rulings underlying the acquittal were erroneous.

Accord, Sanabria v. United States, 437 U.S. 54, 68–69 (1978).

Because the trial court’s termination functioned as an acquittal, the State’s

appeal should not have been permitted, and the Martinson court’s findings are

invalid. Even though the court felt that the trial court’s findings on prosecutorial

misconduct did not warrant dismissal, the findings have no significance, as even if

the trial court’s analysis was incorrect, the acquittal may not be reviewed. There is

no exception permitting retrial once the defendant has been acquitted, no matter

how “egregiously erroneous the legal rulings leading to that judgment might be.”

Fong Foo, 369 U.S., at 143.

The State’s appeal was improvidently granted because the relief would

necessitate another trial, or, at least, “further proceedings of some sort, devoted to

the resolution of factual issues going to the elements of the offense charged . . .”

Martin Linen Supply Company, 430 U.S. at 570. Because a second prosecution

after termination of the first prosecution in Martinson’s favor is precisely what is

prohibited by the Double Jeopardy Clause, this case must properly be dismissed.

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V.

Conclusion.

“The guarantee against double jeopardy is fundamental to the American

scheme of justice, designed to ensure that the State with all its resources and power

should not be allowed to make repeated attempts to convict an individual for an

alleged offense, thereby subjecting him to embarrassment, expense and ordeal and

compelling him to live in a continuing State of anxiety and insecurity, as well as

enhancing the possibility that even though innocent he may be found guilty.

Duncan v. Tennessee, 405 U.S. 127, 130 (1972) (internal quotations omitted).

In Tibbs, the Court observed that the Double Jeopardy Clause “prevents the

State from honing its trial strategies and perfecting its evidence through successive

attempts at conviction.” 457 U.S. at 41. In Ashe v. Swenson, 397 U.S. 436, 447

(1970), the State conceded that, after the defendant was acquitted in one trial, the

prosecutor did, at a subsequent trial, “what every good attorney would do—he

refined his presentation in light of the turn of events at the first trial.”

Here, honing their presentation is precisely what the prosecutors have been

able to do. Even though the trial court dismissed the case partially because of the

prosecutor’s misconduct in attempting to have both the trial judge and defense

counsel removed from the case (Appendix E), the State has now succeeded in

doing just that. Additionally, the State’s new indictment has expanded its filing to

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include a premeditated murder count based on the Martinson court’s approval of

the intent to kill theory prohibited by the first trial judge.

Moreover, at his first trial, the county medical examiner testified the cause

of death was due to carisoprodol toxicity. However, Martinson testified that he

found his son submerged in the bathtub. Now, for the upcoming trial, the State

retained a medical examiner who will testify that Martinson intentionally drowned

his son. Thus, by obtaining a second trial, the State has been able to effectively

sharpen and broaden its theories and presentation, now no longer limited to

carisoprodol toxicity as the cause of death.

The case against Martinson was dismissed with prejudice based on bad faith

prosecutorial misconduct. In doing so, the trial court resolved factual elements in

Martinson’s favor. The court also earlier resolved the factual element of manner of

death against the State when it granted Martinson’s motion for a new trial. In these

circumstances, the State’s appeal from the dismissal was impermissible, as reversal

would necessitate another trial, which it did. Moreover, the appeal itself where the

court discussed and decided the merits of the trial court’s factual findings placed

Martinson in jeopardy a second time for the same offense.

This case involves a significant double jeopardy violation.

Accepting

jurisdiction and barring a second trial has the dual effect of correcting the injustice

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the Arizona courts have left uncorrected, as well as providing guidance to courts as

to the effect of dismissals in double jeopardy jurisprudence.

Martinson prays this Court grant his petition, issue a writ of certiorari, and

direct the prosecution against Martinson be dismissed as a violation of the Double

Jeopardy Clause of the Fifth Amendment to the U.S. Constitution.

Respectfully submitted,

Brent E. Graham

Counsel of Record

Law Office of Brent E. Graham, PLLC

P.O. Box 1355

Dolores, Colorado 81323

(602) 399-2349

AZ State Bar No. 011868

brentgraham@msn.com

VARCOE LAW FIRM, PLLC

Robyn Greenberg Varcoe

Arizona Bar # 019108

WILLMOTT AND ASSOCIATES, PLC

Jennifer L. Willmott

Arizona Bar #016826

845 N. 6th Avenue

Phoenix, AZ 85003

Phone: (602) 344-0040

Fax: (602) 344-0043

rgv@varcoelaw.com

jwillmott@willmottlaw.com

Attorneys for Petitioner

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