# Appendix — Perez v. Arizona

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1516%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1999
- **Citation:** 525 U.S. 1123

## Text

weet Wee

FILED

No. 98 936 DEC 2 19%

IN THE
SUPREME COURT OF THE UNITED STATES

October Term, 1998

FERMIN C. PEREZ,
Petitioner,
Vv.
STATE OF ARIZONA,

Respondent.

On Petition for Writ of Certiorari
to the Arizona Supreme Court

APPENDIX TO
PETITION FOR WRIT OF CERTIORARI

S. JONATHAN YOUNG
Attorney at Law

177 N. Church Avenue
Tucson, AZ 85701-1125
(520) 628 7777

TABLE OF CONTENTS

October 14, 1998, Order of the Supreme Court
of Arizona Denying Petition for Review ................... ili

May 12, 1998, Petition for Review by Arizona
REARS CR ia apie a ol oan ae Ue a ai Rt iv

March 31, 1998, Memorandum Decision
of the Arizona Court of Appeals .....................05. xiii

Appellant's Opening Brief Filed September 15,
1997, in Arizona Court of Appeals .................2.05 XV

April 11, 1997, Judgement and Conviction ............... XXVi

March 10, 1997, Order Denying Motion to
Vacate Judgement and Denying Request for Rehearing ..... XXXi

Reporter's Transcript of March 3, 1997, Hearing on
Motion to Vacate Judgement/Motion for New Hearing .... xxxii

Motion for Release Pending Appeal/Motion to Vacate
Judgement/Request for Hearing to Determine

Voluntariness of Absence from Evidentiary Hearing

Pn I i i ee xl vii

Reporter's Transcript of December 16,
ray UN UN DN ec ccc cucwecenn lvii

December 4, 1996, Motion to Reconsider/
a ee A oe ee xviii

August 29, 1996, Hearing on Pretrial Evidentiary
NN Sn doa uc ees oe ei hn kk cea IXxxvi

**

( 99
ARIZONA DENYING PETITION FOR REVIEW
;
STATE OF ARIZONA )

NOEL K. DESSAINT KATHLEEN E. KEMPLEY

CLERK OF COURT 402 ARIZONA STATE COURTS BUILDING
CHIEF DEPUTY CLERK

1501 WEST WASHINGTON

PHOENIX, ARIZONA 85007-3329

TELEPHONE: (602) 542-9396

October 14, 1998

RE: STATE OF ARIZONA V8. FERMIN C. PEREZ aka
FERNANDO PEREZ

Supreme Court No. CR-98-0244-PR

Court of Appeals No. 2 CA-CR 97-0185

Pima County No. CR-52507

GREETINGS:

The following action was taken by the Supreme Court of the State of
Arizona on October 8, 1998, in regard to the above-referenced cause:

ORDERED: Petition for Review by the Supreme Court = DENIED.

A panel composed of Vice Chief Justice Jones, Justice Martone, and
Justice McGregor participated in the determination of this matter.

Record returned to Court of Appeals, Division Two, Tucson, this
14th day of October, 1998.

NOEL K. DESSAINT, Clerk
TO:

Hon. Grant Woods, Arizona Attorney General
Attn: Paul J. McMurdie, Esq. and Donna J. Lam, Esq.

iil

eee

S. Jonathan Young, Esq.

Fermin C. Perez

Joyce Goldsmith, Clerk, Court of Appeals. Division Two, Tucson
Lexis-Nexis

West Publishing Company

MAY 12, 1998, PETITION FOR REVIEW BY ARIZONA
SUPREME COURT

The petitioner, Fermin C. Perez, by and through his attorney, S.
Jonathan Young, hereby petitions the Arizona Supreme Court for
a review of the Court of Appeals's memorandum decision dated
March 31, 1998, and order denying reconsideration dated April 30,
1998, affirming Mr. Perez's conviction and the sentence imposed.

I
Synopsis of the Decision of the Court of Appeals
On March 31, 1998, Division 2 of the Court of Appeals filed its
memorandum decision in the above entitled matter affirming Mr.
Perez's conviction in this matter. The Court of Appeals held, in
effect, that the police may limit a DUI suspect's right to counsel to
telephonic contact only, regardless of interference with the ongoing
investigation. The Court of Appeals also held that the defendant
voluntarily waived his presence at the pretrial evidentiary hearing
held with no actual notice to him. A copy of those decisions are
attached.

II
Issues Presented for Review
WHETHER MR. PEREZ'S CONVICTION SHOULD BE
REVERSED ON APPEAL BASED ON THE ARRESTING
OFFICER'S ADMITTED DENIAL OF MR. PEREZ'S RIGHT TO
CONSULT WITH COUNSEL IN PERSON FOLLOWING HIS
ARREST?

WHETHER MR. PEREZ'S LACK OF NOTICE OF THE

iv

EVIDENTIARY HEARING IN THIS CASE DENIED MR.
PEREZ THE RIGHT TO CONFRONT WITNESSES AGAINST
HIM, DENIED MR. PEREZ HIS DUE PROCESS RIGHT TO BE
PRESENT AT ALL STAGES OF THE PROCEEDINGS AND
DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF
TRIAL COUNSEL?

I
Statement of Material Facts
On September 21, 1993, at approximately 1:05 a.m. or shortly
thereafter, Deputy Todd Greene stopped Mr. Perez for speeding
near Craycroft Road and Sunrise Drive. (RT August 29, 1996, p.
5-11.) Following field sobriety tests, Mr. Perez was placed under
arrest at 1:25 a.m. (RT August 29, 1996, p. 11.) After being
advised of his Miranda rights, Mr. Perez stated, according to
Deputy Greene's testimony, "I want an attorney right now, Harold
Hyams." He then stated, according to Deputy Greene, "I want an
attorney before | do any tests right now." (RT August 29, 1996, p.
12.)

Rather than making arrangements for Mr. Perez to contact an
attorney, Deputy Greene continued his investigation, inquiring as
to whether Mr. Perez would submit to a chemical test. Mr. Perez

agreed to take a blood test and, according to Deputy Greene's
testimony, stated "I want an attorney present while I do the test"
while in route to El Dorado Hospital at approximately 1:30 a.m.
Deputy Greene testified that he advised Mr. Perez (erroneously)
"that he was not permitted to have an attorney present during the
testing and he could make a call to an attorney." Deputy Greene

also testified that Mr. Perez "insisted that he have an attorney
present at the test." (RT August 29, 1996, p. 14.) Because Mr.
Perez insisted on having an attorney present at the test, and because
Deputy Greene felt that Mr. Perez did not have the right to have an
attorney present, Deputy Greene treated Mr. Perez's insistence as a
refusal to complete a chemical test. (RT August 29, 1996, p. 14.)
Deputy Greene arrived at the Pima County Jail with Mr. Perez at
approximately 1:45 a.m. Mr. Perez was read the Implied Consent
Affidavit at the Pima County Jail. Following that reading he stated

Vv

"I want an attorney present right now." Deputy Greene also noted
on the affidavit that Mr. Perez "would not do test without one."
(RT August 29, 1996, p. 16.) Deputy Greene testified that he made
no arrangements at the Pima County Jail for Mr. Perez to contact
an attorney. (RT August 29, 1996, p. 16.) According to the Pima
County Jail booking form, Mr. Perez was ultimately booked by jail
personnel at 2:47 a.m. (ROA 292.) When asked by counsel for the
state whether he had ever offered Mr. Perez an opportunity to
make a phone call to an attorney, Deputy Greene stated "not while
I was at Pre-Trial Services. I honestly don't recall." (RT August
29, 1996, p. 19.) On redirect by counsel for Mr. Perez, Deputy
Greene admitted that time had not yet become a problem with
respect to a chemical test. At that point Deputy Greene claimed
that he had offered to allow Mr. Perez to call an attorney but that
Mr. Perez wanted to have an attorney present. (RT August 29,
1996, p. 21.)

Mr. Perez, having not received notice of the evidentiary hearing,
was not present at the hearing when Deputy Greene made that
claim. Had Mr. Perez been present, he would have testified that,
at no time, did Deputy Greene ever offer to allow him to use the
telephone. (ROA at 291; RT March 3, 1997, p. 6-7.) Upon further
cross-examination by counsel for Mr. Perez, Deputy Greene was
forced to admit that he had not mentioned offering Mr. Perez the
Opportunity to use the telephone in his police report or in an
interview conducted on August 21, 1996. (RT August 29, 1996, p.
22.) During the interview, when asked what opportunity he had
provided Mr. Perez to contact an attorney, Deputy Greene replied
"well, at that point, I took him to jail because he said earlier while
we were in the vehicle, he said, I want an attorney before I take any
tests of my blood." (RT August 29, 1996, p. 29.)

Mr. Perez was not at the hearing held August 29, 1996, solely
because he had not received notice of the hearing. (RT March 3,
1997, p. 3.) Mr. Perez's calendar for 1996 showed no notation of a
hearing on August 29. Mr. Perez and his wife, Betty Perez, both
testified that they reviewed their file of documents in this case and
found no notice of the August 29 hearing from trial counsel. (RT
March 3, 1997, p. 3-5, 12.)

vi

ARGUMENT |
MR. PEREZ'S CONVICTION SHOULD BE REVERSED ON

APPEAL BASED ON THE ARRESTING OFFICER'S
ADMITTED DENIAL OF MR. PEREZ'S RIGHT TO CONSULT
WITH COUNSEL BY TELEPHONE OR IN PERSON
FOLLOWING MR. PEREZ'S ARREST

A line of cases beginning with McNutt v. Superior Court, 133
Ariz. 7, 648 P.2d 122 (1982), requires Mr. Perez's conviction to be set
aside based solely on Deputy Green's testimony at the August 29,
1996, evidentiary hearing held in this matter. Contrary to the
understanding of everyone who appeared at the August 29, 1996,
evidentiary hearing in this matter, McNutt v. Superior Court allows

an accused to contact his lawyer either by telephone or in person:

"We agree with the Court of Appeals of New York,
which said, 'Law enforcement officials may not,
without justification, prevent access between the
criminal accused and his lawyer, available in person
or by immediate telephone communication, if such
access does not interfere unduly with the matter at
hand.' People v. Gursey, 22 N.Y.2d 224, 227, 239
N.E.2d 351, 352, 292 N.Y.S.2d 416, 418 (1968)."
(Emphasis added.)

McNutt v. Superior Court, 133 Ariz. 7, 9, 648 P.2d 122, 124 (1982).
Maryland has interpreted that identical language to permit

face to face consultation:

"Nor is the constitutional right to counsel in any event
limited solely to lawyer-telephonic communication, as
the superintendent further contends. In no way do we
limit mode of lawyer-client communication in Sites or
otherwise differentiate between telephone and face to
face consultation. Indeed, we quoted with approval
from a New York Court of Appeals case [the same
quoted in McNutt] which involved, as here, the right
of a drunk driver suspect to counsel prior to deciding

vii

gS

whether to submit to the sobriety test ‘law
enforcement officials may not, without justification,
prevent access between the criminal accused and his
lawyer, available in person or by immediate telephone
communication, if such access does not interfere
unduly with the matter at hand...’ Sites, supra, at 1713,
41 A.2d 192 (quoting People v. Gursey, 22 N.Y.2d
224, 292 N.Y.Sd 416, 418, 239 N.E.2d 351, 352
(1968))."

Brosan v. Cochran, 307 Md. 662, 669, 516 A.2d 970 (1986). See
also, State v. Kneisl, 312 Minn. 281, 251 N.W.2d 645 (1977) ("{I]t
would be a sham to permit the telephone to call and then deny the
[DUI] arrested person an opportunity to consult with his attorney at
the jail."); Seattle vy, Box, 29 Wash. App. 109, 627 P.2d 584 (1981)
(Once a defendant arrested and charged with driving under the
influence of intoxicating liquor has made telephone contact with an
attorney the police may not, without reasonable justification, prevent
the attorney from making personal contact with the defendant.);
Ching v. Lewis, 895 F.2d 608, (9th Cir.1989) (attorney-prisoner
communication by telephone, by mail, or even a hole through in the
glass is not effective.); United States v. Janis, 820 F. Supp. 512, 517
(S.D. CA 1992) ("the court orders that the metropolitan correctional
center allow Janis to conduct private, in-person consultations with his
attorneys and in all pending litigation and with the court appointed
investigator working on the criminal case pending in this district.").

Because Officer Green did not properly understand Mr.
Perez's right to consult in person with an attorney, Mr. Perez was
denied any attempt to secure that right. The remedy for such a denial,
if the accused has requested an attorney and if the accused is not
released immediately after the investigation, is the dismissal of the
charges. McNutt, supra; State v. Holland, 147 Ariz. 453, 455, 711
P.2d 592, 594 (1985); State v. Dennett, slip op. No. 1 CA-CR 91-
1807 (November 9, 1993). Because Mr. Perez's defense counsel had
apparently not read McNutt nor any of several of the Arizona
Supreme Court cases subsequent to McNutt closely enough in
preparation for the hearing, she was unable to offer Judge Donfeld

Vill

“BEST AVAILABLE COPY

any guidance or to cite Judge Donfeld to the appropriate portion of
McNutt, and provided Mr. Perez with ineffective assistance of

counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
1052, 80 L.Ed.2d 674 (1984).

ARGUMENT II
MR. PEREZ'S LACK OF NOTICE OF THE EVIDENTIARY

HEARING IN THIS CASE DENIED MR. PEREZ THE RIGHT
TO CONFRONT WITNESSES AGAINST HIM, DENIED MR.
PEREZ HIS DUE PROCESS RIGHT TO BE PRESENT AT ALL
STAGES OF THE PROCEEDINGS AND DENIED THE RIGHT
TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL

Mr. Perez was not present at the evidentiary hearing held in
this matter on August 29, 1996, solely because he did not receive
notice of the hearing date.* Because of his involuntary absence from
the hearing, Mr. Perez was unable to confront the witness, Deputy
Green, he was unable to rebut the testimony of Office Green and he
was unable to assist his trial counsel in further cross-examining
Deputy Green.

Deputy Green offered two critical pieces of testimony which
Mr. Perez was unable to confront or to rebut. The first was Deputy
Green's testimony that Mr. Perez had the opportunity to request one
phone call from jail personnel when he was booked into the Pima
County Jail. (RT August 29, 1996, p. 16.) Had Mr. Perez been
present at the evidentiary hearing, he would have pointed out to trial
counsel that Deputy Green left him at the Pima County Jail in a
holding cell and it was well over an hour before jail personnel
removed him from the holding cell for booking, a fact easily verified

While a letter may have been sent to Mr. Perez, neither he nor his
wife ever received it, it is not in the file he and his wife have kept,
and it is not reflected in his 1996 calendar. Furthermore, the letter
does not indicate that there will be witness testimony nor does it
indicate that Mr. Perez should be present. (Defense Exhibit "B"
3/3/97.)

ix

by reference to Mr. Perez's booking sheet which shows him being
booked into the Pima County Jail at 2:47 a.m.

Furthermore, both Kunzler and State v. Juarez, 161 Ariz. 76,
775 P.2d 1140 (1989), allow the accused to consult an attorney before
deciding to take a chemical test. By the time Mr. Perez was booked,
Deputy Green had advised him of his license suspension for refusal
to take a chemical test, completed his paperwork and left the jail.
Judge Donfeld obviously was not informed that the license
suspension had already been served and the investigation completed
by the time that Mr. Perez was booked as Judge Donfeld commented
during argument that Mr. Perez could have elected the breath test
while at Pre-Trial Services. (RT August 29, 1996, at p. 29-30.) Had
Mr. Perez been advised of the hearing date, he could have pointed this
fact out to counsel.

Most damaging to Mr. Perez was Deputy Green's surprise
testimony, in Mr. Perez's absence, that he had offered Mr. Perez the
Opportunity to call an attorney. (RT August 29, 1996, at p. 21.)
Although Deputy Green quoted Mr. Perez's exact words in requesting
an attorney at several points in his police report (RT August 29, 1996,
p. 13, 16.), Deputy Green never mentioned in his police report
offering a phone call to Mr. Perez or Mr. Perez refusing a phone call.
(RT August 29, 1996, at p. 22.) When interviewed by trial counsel,
Deputy Green made no mention of offering Mr. Perez a phone call.
(RT August 29, 1996, at p. 22.) In fact, when asked during the
interview "and what opportunity did you provide him to contact this
attorney?" Deputy Green replied "Well, at that point, I took him to jail
because he said earlier while we were in the vehicle, he said, I want
an attorney before I take any tests of my blood." (RT August 29,
1996, at p. 29.)

During examination by trial counsel, Deputy Green stated
that, after the first request for an attorney, what he did next was to ask
Mr. Perez if he would submit to a chemical test. (RT August 29,
1996, at p. 12.) After the next request for an attorney Deputy Green
stated that what he did was to tell Mr. Perez that he was not permitted
to have an attorney present during the testing. (RT August 29, 1996,
at p. 14.) When questioned by trial counsel as to what opportunities
he gave Mr. Perez to contact an attorney, Office Green testified he

a

had no opportunity at the scene to let Mr. Perez contact an attorney.
(RT August 29,1 996, at p. 14.) He also testified that, while he was
driving past public telephones, he did not stop to let Mr. Perez use the
telephone. (RT August 29, 1996, at p. 14-15.) When the court
inquired as to whether Mr. Perez was given the opportunity to call an
attorney at the jail, Deputy Green still had no recollection of offering
to allow Mr. Perez to call an attorney and stated that the jail personnel
would allow one phone call. (RT August 29, 1996, at p. 16.) During
examination by the prosecutor, Deputy Green was asked:

Q: At any time post-arrest, did you offer
the defendant an opportunity to make
a phone call to an attorney?

A: Not while I was at Pre-Trial Services.
I honestly don't recall.

(RT August 29, 1996, at p. 19.) After trial counsel for Mr. Perez
established that Deputy Green was under no time pressure to
complete the chemical tests within 2 hours and phone calls would
have taken 5 to 10 minutes that Deputy Green suddenly recalled
offering Mr. Perez the opportunity to call an attorney. (RT August
29, 1996, at p. 21.) (Even so, Deputy Green's testimony was that Mr.
Perez wanted an attorney present and Deputy Green did not think that
Mr. Perez had the right to have an attorney present. Even by Deputy
Green's newly recovered memory, Mr. Perez's right to counsel was
denied.) Deputy Green subsequently lost his newly recovered
memory after the evidentiary hearing, testifying at the first trial that
he gave Mr. Perez an opportunity to use the phone only by taking him
to jail:

Q. What opportunity did you give him at
any time to contact an attorney?

A. I informed him that phones were
available at pretrial services for him to
make a phone call if pretrial would

xi

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allow that.

(R.T. September 6, 1996, p. 72)

_ Given the previous inconsistencies in Deputy Green's
testimony, reports and interview, given the sudden motive to fabricate
upon being pinned down as to the lack of any time pressure, and
given Deputy Green's failure to recollect the crucial issue during his
interview or in his police report. Deputy Green's deception of Judge
Donfeld is readily apparent. Had Mr. Perez been present at the
evidentiary hearing, Mr. Perez would have testified that, at no point.
did Deputy Green ever offer him the opportunity to make a phone
call. (R.T. March 3, 1997, p. 6-7.)

The right of a defendant charged with a felony to be
personally present in the courtroom at every stage of his trial
conducted is fundamental to our system of justice. "A leading
principle that pervades the enti:* law of criminal procedure is that,
after indictment found, nothing shall be done in the absence of the
prisoner." Lewis v. United States, 146 U.S. 370, 372, 13 S.Ct. 136,
137, 36 L.Ed. 1011 (1892). This principle has been constantly upheld
and continually reaffirmed. Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202,
28 L.Ed. 262 (1884); Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057,
25 L.Ed.2d 353 (1970); Kentucky v. Stincer, 482 U.S. 730, 745, 107
S.Ct. 26, 58, 96 L.Ed.2d 631 (1987).

The right to be present at trial is protected by the due process
and confrontation clauses of the Sixth Amendment to the United
States Constitution and by article II, §§ 4 and 24 of the Arizona
Constitution. State v. Levato,924P.2d445, _—sAriz. —_—(1 996).

See also, State v. Bishop, 139 Ariz. 567, 679 P.2d 1054 (1984).

IV
Reasons the Petition Should be Granted
This Petition should be granted because this court has not
directly addressed the right of a suspect to face to face consultation
with an attorney, because important issues of law have been
incorrectly, because Deputy Greene has denied Mr. Perez his right to
counsel under McNutt by refusing his request to have an attorney
present before testing, and because Mr. Perez never received personal

xii

notice of the August 29, 1997, evidentiary hearing.
Respectfully submitted this 12th day of April, 1998.

MARCH 31, 1998, MEMORANDUM DECISON OF THE
ARIZONA COURT OF APPEALS

STATE OF ARIZONA MAR 3 1 1998
DIVISION TWO

COURT OF APPEALS

DIVISION TWO

THE STATE OF ARIZONA,
Appellee, DEPARTMENT B

v.
FERMIN C. PEREZ, aka FERNANDO PEREZ,
2 CA-CR 97-0185

MEMORANDUM DECISION

Not for Publication

Rule 111, Rules of

the Supreme Court

Appellant.

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR-52507

Honorable John E. Davis, Judge

AFFIRMED

Grant Woods, The Attorney General

By Paul J. McMurdie and Donna J. Lam Tucson

Attorneys for Appellee

S. Jonathan Young Tucson
Attorney for Appellant

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hak 20k Rha a Ratha is) rectal RLS ae Ra

ESPINOSA. Judge.

Appellant Fermin Perez was placed on probation for ten years
after a jury convicted him of aggravated driving while under the
influence of alcohol. The court suspended the six month jail term and
the mandatory four-month prison term pending the outcome of
appeal. On appeal Perez claims his right to counsel was violated, he
was denied his due process right toattend the hearing on the pretrial
motions, and trial counsel was ineffective. We affirm.

Perez first argues that he was denied his right to consult with
an attorney in person before he decided whether to submit to blood
testing. The transcript of the hearing on the pretrial motions reveals
that the arresting sheriff's deputy offered Perez the opportunity to
make a telephone call to counsel, but he insisted that he wanted an
attorney physically present. The officer told Perez more than once that
he could make a telephone call to speak to counsel, but that he did not
have a right to have counsel present at the time of the testing. The
responsibility of resolving credibility issues lies with the trial court.
State v. Tapia, 159 Ariz. 284, 767 P.2d 5 (i988); State v. Vanoy, 177
Ariz. 206, 866 P.2d 874 (App. 1993). It was therefore for the trial

court to determine, based on its assessment of the officer's credibility,
whether Perez was offered the ability to make a telephone call to
counsel. The trial court concluded that Perez had not been deprived
of his right to counsel, apparently believing he had been given the
opportunity to consult with counsel by telephone.

Perez also claims he was entitled to consult with an attorney
ain person” before deciding whether to submit to chemical testing. He
has not, however, cited any authority, nor have we found any, which
requires that counsel be physically present. Indeed, he cites McNutt
v. Superior Court, 133 Ariz. 7, 648 P.2d 122 (1982), which clearly
states that a defendant is entitled to confer with counsel either in
person or by telephone. It is the consultation wiffi counsel that is
important, noi counsel's physical presence at the scene. See State v.
Juarez, 161 Ariz. 76, 775 P.2d 1140 (1989); State v. HolEmd, 147
Ariz. 453, 711 P.2d 592 (1985); McNutt. The trial court did not err
in finding that Perez was not denied his right to counsel.

Perez also claims his due process rights were violated when

XIV

the pretrial evidentiary hearing was held in his absence because he
was unable to confront the sheriffws deputy and assist defense
counsel in cross-examination. The deputy's testimony was the basis
for the trial court's determination that Perez's right to counsel had not
been abridged. However, a defendant may waive his right to be
present at any proceeding by voluntarily absenting himself from it.
State v. AmayaRuiz, 166 Ariz. 152, 800 P.2d 1260 (1990). Defense
counsei waived Perez's presence at the hearing and such waiver is
binding on him. See State v. Spreitz, 190 Ariz. 129, 945 P.2d 1260
(1997). Moreover, at a hearing on the voluntariness of his absence
from the evidentiary hearing, Perez merely claimed he did not receive
counsel's letter informing him of the hearing, although he concedes
in his opening brief that the letter may have been sent. On this record
we cannot say the trial court abused its discretion in proceeding in
Perez's absence or refusing to holdanother hearing.

Because Perez's claim of ineffective assistance of counsel
relates to rnatters outside the record on appeal, we cannot address it.
His claim must be presented to the trial court pursuant to Rule 32,
Ariz. R. Crim. P., 17 A.R.S., to allow the trial court to determine if
an evidentiary hearing is warranted. State v. Valdez, 160 Ariz. 9, 770
P.2d 313 (1989); State v. Carver, 160 Ariz. 167, 771 P.2d 1382
(1989).

The judgment of conviction and the sentence imposed are
affirmed.

PHILIP G. ESPINOSA, Judge
CONCURRING:
JOHN PELANDER, Presiding Judge

JOSEPH W. HOWARD, Judge

APPELLANT'S OPENING BRIEF FILED SEPTEMBER 15,
1997, IN ARIZONA COURT OF APPEALS

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wok op enh)

STATEMENT OF FACTS
On September 21, 1993, at approximately 1:05 a.m. or shortly
thereafter, Deputy Todd Greene stopped Mr. Perez for speeding
near Craycroft Road and Sunrise Drive. (RT August 29, 1996, p.
5-11.) Following field sobriety tests, Mr. Perez was placed under
arrest at 1:25 a.m. (RT August 29, 1996, p. 11.) After being
advised of his Miranda rights, Mr. Perez stated, according to
Deputy Greene's testimony, "I want an attorney right now, Harold
Hyams." He then stated, according to Deputy Greene, "I want an
attorney before I do any tests right now.” (RT August 29, 1996, p.
12.)

Rather than making arrangements for Mr. Perez to contact an
attorney, Deputy Greene continued his investigation, inquiring as
to whether Mr. Perez would submit to a chemical test. Mr. Perez

agreed to take a blood test and, according to Deputy Greene's
testimony, stated "I want an attorney present while I do the test"
while in route to E] Dorado Hospital at approximately 1:30 a.m.
Deputy Greene testified that he advised Mr. Perez (erroneously)
"that he was not permitted to have an attorney present during the
testing and he could make a call to an attorney." Deputy Greene

also testified that Mr. Perez "insisted that he have an attorney
present at the test." (RT August 29, 1996, p. 14.) Because Mr.
Perez insisted on having an attorney present at the test, and because
Deputy Greene felt that Mr. Perez did not have the right to have an
attorney present, Députy Greene treated Mr. Perez's insistence as a
refusal to complete a chemical test. (RT August 29, 1996, p. 14.)
Although there were public pay phones available, Deputy Greene
testified that he did not stop to provide Mr. Perez the opportunity
to make a phone call. (RT August 29, 1996, p. 14-15.) Deputy
Greene arrived at the Pima County Jail with Mr. Perez at
approximately 1:45 a.m. Mr. Perez was read the Implied Consent
Affidavit at the Pima County Jail. Following that reading he stated
"I want an attorney present right now." Deputy Greene also noted
on the affidavit that Mr. Perez "would not do test without one.”
(RT August 29, 1996, p. 16.) Deputy Greene testified that he made
no arrangements at the Pima County Jail for Mr. Perez to contact
an attorney. (RT August 29, 1996, p. 16.) According to the Pima

Xvi

County Jail booking form, Mr. Perez was ultimately booked by jail
personnel at 2:47 a.m. (ROA 292.) When asked by counsel for the
state whether he had ever offered Mr. Perez an opportunity to
make a phone call to an attorney, Deputy Greene stated "not while
I was at Pre-Trial Services. I honestly don't recall." (RT August
29, 1996, p. 19.) On redirect by counsel for Mr. Perez, Deputy
Greene admitted that time had not yet become a problem with
respect to a chemical test. At that point Deputy Greene claimed
that he had offered to allow Mr. Perez to call an attorney but that
Mr. Perez wanted to have an attorney present. (RT August 29,
1996, p. 21.)
Mr. Perez, having not received notice of the evidentiary hearing,
was not present when Deputy Greene made that claim. Had Mr.
Perez been present, he would have testified that, at no time, did
Deputy Greene ever offer to allow him to use the telephone. (ROA
at 291; RT March 3, 1997, p. 6-7.) Upon further cross-
examination by counsel for Mr. Perez, Deputy Greene was forced
to admit that he had not mentioned offering Mr. Perez the
opportunity to use the telephone in his police report or in an
interview conducted on August 21, 1996. (RT August 29, 1996, p.
22.) During the interview, when asked what opportunity he had
provided Mr. Perez to contact an attorney, Deputy Greene replied
"well, at that point, I took him to jail because he said earlier while
we were in the vehicle, he said, I want an attorney before | take any
tests of my blood.” (RT August 29, 1996, p. 29.)
Mr. Perez was not at the hearing held August 29, 1996, solely
because he had not received notice of the hearing. (RT March 3,
1997, p. 3.) Mr. Perez's calendar for 1996 showed no notation of a
hearing on August 29. Mr. Perez and his wife, Betty Perez, both
testified that they reviewed their file of documents in this case and
found no notice of the August 29 hearing from trial counsel. (RT
March 3, 1997, p. 3-5, 12.) On March 26, 1996, a direct
indictment was filed in the Pima County Superior Court charging
Mr. Perez with one count of aggravated DUI in violation of A.R.S.
§ 28-697. (ROA 1.) On August 16, 1996, trial counsel filed a
Motion to Dismiss based on Mr. Perez's repeated request to have
an attorney present. (ROA 83.) That motion was denied by Judge

XVii

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Donfeld on August 29, 1996. On September 6, 1996. the first trial
held in this matter resulted in a mistrial following a hung jury.
(ROA 181-183.) Trial counsel for Mr. Perez filed a Motion to
Reconsider on December 5, 1996, citing to McNutt v. Superior -

Court, 133 Ariz. 7, 648 P.2d 122 (1982) and State v. Holland, 147

Ariz. 453, 711 P.2d 592 (App. 1985). (ROA 195-208.) The
Motion to Reconsider was denied on December 16, 1996, by Judge
Donfeld (ROA 212.) and, on December 23, 1996, following the

second jury trial held in this matter, Mr. Perez was convicted of a

single count of DUI. On February 4, 1997, present counsel for Mr.

Perez substituted into the case. A motion for Mr. Perez's release

pending appeal, a motion to vacate judgement, and a request for
hearing to determine the voluntariness of Mr. Perez's absence from
the August 29, 1996, evidentiary hearing were filed on February
19, 1997. (ROA 275-326.) On March 10, 1997, Judge Davis
granted Mr. Perez's release on an appeal bond and denied the other
motions. (ROA 274-336.) Mr. Perez was sentenced in this matter
on April 11, 1997 (ROA 345-351.), and a Notice of Appeal was
filed the same date in court. (ROA 352-353.)

ARGUMENT I
MR. PEREZ'S CONVICTION SHOULD BE REVERSED ON
APPEAL BASED ON THE ARRESTING OFFICER'S
ADMITTED DENIAL OF MR. PEREZ'S RIGHT TO CONSULT
WITH COUNSEL BY TELEPHONE OR JN PERSON
FOLLOWING MR. PEREZ'S ARREST
A line of cases beginning with McNutt v. Superior Court, 133
Ariz. 7, 648 P.2d 122 (1982), requires Mr. Perez's conviction to be set
aside based solely on Deputy Green's testimony at the August 29,
1996, evidentiary hearing held in this matter.
Contrary to the understanding of everyone who appeared at
the August 29, 1996, evidentiary hearing in this matter, McNutt v.
Superior Court allows an accused to contact his lawyer either by
telephone or in person:

"We agree with the Court of Appeals of New York,
which said, 'Law enforcement officials may not,

XViii

without justification, prevent access between the
criminal accused and his lawyer, available in person
or by immediate telephone communication, if such
access does not interfere unduly with the matter at
hand.' People v. Gursey, 22 N.Y.2d 224, 227, 239
N.E.2d 351, 352, 292 N.Y.S.2d 416, 418 (1968)."
(Emphasis added.)

McNutt v. Superior Court, 133 Ariz. 7, 9, 648 P.2d 122, 124 (1982).

The court went on to state, footnote number 2, "If the lawyer cannot
be reached by telephone or cannot promptly appear where the
defendant is, the state may continue with its detention procedures."
(Emphasis added.) The defendant is entitled to consult with the
att: mey "before taking a chemical breath test." Kunzler v. Superior
Court, 154 Ariz. 568, 744 P.2d 669 (1987).

Deputy Green repeatedly testified that, following his arrest,
Mr. Perez repeatedly stated that he "wanted an attorney right now” or
that he "wanted an attorney present." (RT August 29, 1996, p. 12, 13,
14, 15, 16, 18, 19, 21, 22 and 23.) Deputy Green testified to his
apparent misunderstanding of a suspect's right to counsel, stating "I
had been trained that it was not his right to have an attorney present
at the point of the chemical test." (RT August 29, 1996, p. 23.)
Deputy Green also testified repeatedly that he told Mr. Perez that Mr.
Perez did not have the right to have an attorney present. (RT August
29, 1996, p. 14, 18-19, 22 and 23-24.) Even the prosecutor stated
during oral argument, "He's not entitled to have an attorney present

.." (RT August 29, 1996, p. 27.)

Because Officer Green did not properly understand Mr.
Perez's right to consult in person with an attorney, Mr. Perez was
denied any attempt to secure that right. Because Mr. Perez's defense
counsel had apparently not read tt nor any of several of the
Arizona Supreme Court cases subsequen. o McNutt closely enough
in preparation for the hearing, she was unable to offer Judge Donfeld
any guidance or to cite Judge Donfeld to the appropriate portion of
McNutt.

The language in McNutt permitting a defendant to consult
with his lawyer in person was repeated in State v. Holland, 147 Ariz.

xix

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453, 455, 711 P.2d 592. 594 (1985), in Kunzler v. Superior Court,

154 Ariz 568, 570, 744 P.2d 669, 671 (1987) and in State v. Juarez,
161 Ariz., 76, 80, 775 P.2d 1140, 1144 (1989). See also Ching v.
Lewis, 895 F.2d 608 (9th Cir. 1989), reversing grant of summary
judgement in § 1983 case and holding that the arbitrary policy of
denying contact visits with attorney, requiring instead that the
prisoner communicate with attorney through hole in glass, or by mail
or by telephone, prohibits effective attorney-client communication.

The remedy for such a denial, if the accused has requested an
attorney and if the accused is not released immediately after the
investigation, is the dismissal of the charges. McNutt, supra; State v.
Holland, 147 Ariz. 453, 455, 711 P.2d 592, 594 (1985); State v.
Dennett, slip op. No. 1 CA-CR 91-1807 (November 9, 1993). In
Holland, as in McNutt, the Supreme Court required that the charges
be dismissed as the remedy stating that it is impossible to foresee
what advice would have been given the defendant had he been able
to confer privately with counsel.

The state seems to indicate, in its written response to Mr.
Perez's McNutt Motion filed prior to the evidentiary hearing, that the
fact that any consultation with an attorney would have delayed
somewhat the DUI investigation excuses Deputy Green's refusal to
allow Mr. Perez to have an attorney present. The accused is entitled
to such access, however, as long as it does not interfere unduly with
the matter at hand. State v. Holland, 147 Ariz. at 464; McNutt v.
Superior Court, 133 Ariz. at 9; Kunzler v. Superior Court, 154 Ariz.
at 570; State v. Juarez, 161 Ariz. at 80. Mr. Perez was stopped at
1:05 a.m. and placed under arrest at 1:25 a.m. At that point he began
requesting an attorney. (RT August 29, 1996, p. 11-12.) Deputy
Green testified that time was not a problem with respect to the 2 hour
window for obtaining a blood test. (RT August 29, 1996, p. 20.) As
the time factor was not a factor, and as Deputy Green interpreted Mr.
Perez's demand to have an attorney present as a refusal to take the
breath test, the request for an attorney could not have presented the
prospect of undue delay. If fact, based on Deputy Green's treatment
of the request for counsel as a refusal, all that remained at that point
was to transport Mr. Perez to the Pima County Jail. The state
appears, however, to have abandoned the idea of undue delay at the

XX

evidentiary hearing.

Had trial counsel read any of the relevant cases, McNutt,
Holland, Kunzler or Juarez, prior to the evidentiary hearing, she could
have pointed out to Judge Donfeld that Deputy Green and the
prosecutor were both incorrect in their assertions that Mr. Perez was
not entitled to consult an attorney in person before taking a chemical
test. Based solely on the testimony of Deputy Green, the charges
should have been dismissed. The touchstone of an ineffective
assistance of counsel claim is whether the defendant was denied a fair
trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 1052, 80
L.Ed.2d 674 (1984); State v. Valdez, 167 Ariz. 328, 806 P.2d 1376
(1991). The defendant must show first that trial counsel's
performance fell below an objective standard of reasonably effective
assistance under prevailing professional norms, and second, that trial
counsel's performance has prejudiced defendant's case. State v.
Valdez, supra. Trial counsel's basic unfamiliarity with the cases upon
which she was relying falls below an objective standard. The fact that
the language of the cases is outcome determinative establishes the
prejudice.

ARGUMENT II
MR. PEREZ'S LACK OF NOTICE OF THE EVIDENTIARY

HEARING IN THIS CASE DENIED MR. PEREZ THE RIGHT
TO CONFRONT WITNESSES AGAINST HIM, DENIED MR.
PEREZ HIS DUE PROCESS RIGHT TO BE PRESENT AT ALL
STAGES OF THE PROCEEDINGS AND DENIED THE RIGHT
TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL

Mr. Perez was not present at the evidentiary hearing held in
this matter on August 29, 1996, solely because he did not receive
notice of the hearing date.’ Because of his involuntary absence from

While a letter may have been sent to Mr. Perez, neither he nor his
wife ever received it, it is not in the file he and his wife have kept,
and it is not reflected in his 1996 calendar. Furthermore, the letter
does not indicate that there will be witness testimony nor does it

XXi

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the hearing, Mr. Perez was unable to confront the witness. Deputy
Green, he was unable to rebut the testimony of Office Green and he
was unable to assist his trial counsel in further cross-examining
Deputy Green.

Deputy Green offered two critical pieces of testimony which
Mr. Perez was unable to confront or to rebut. The first was Deputy
Green's testimony that Mr. Perez had the opportunity to request one
phone call from jail personnel when he was booked into the Pima
County Jail. (RT August 29, 1996, p. 16.) Had Mr. Perez been
present at the evidentiary hearing, he would have pointed out to trial
counsel that Deputy Green left him at the Pima County Jail in a
holding cell and it was well over an hour before jail personnel
removed him from the holding cell for booking, a fact easily verified
by reference to Mr. Perez's booking sheet which shows him being
booked into the Pima County Jail at 2:47 a.m.

Trial counsel further exhibited her lack of familiarity with the
McNutt line of cases by failing to point out to the court that both
Kunzler and State v. Juarez, 161 Ariz. 76, 775 P.2d 1140 (1989),
allow the accused to consult an attorney before deciding to take a
chemical test. By the time Mr. Perez was booked, Deputy Green had
advised him of his license suspension for refusal to take a chemical
test, completed his paperwork and left the jail. Judge Donfeld
obviously was not informed that the license suspension had already
been served and the investigation completed by the time that Mr.
Perez was booked as Judge Donfeld commented during argument that
Mr. Perez could have elected the breath test while at Pre-Trial
Services. (RT August 29, 1996, at p. 29-30.)

Most damaging to Mr. Perez was Deputy Green's surprise
testimony, in Mr. Perez's absence, that he had offered Mr. Perez the
opportunity to call an attorney. (RT August 29, 1996, at p. 21.)
Although Deputy Green quoted Mr. Perez's exact words in requesting
an attorney at several points in his police report (RT August 29, 1996,
p. 13, 16.), Deputy Green never mentioned in his police report

indicate that Mr. Perez should be present. (Defense Exhibit "B"
3/3/97.)

XXii

offering a phone call to Mr. Perez or Mr. Perez refusing a phone call.
(RT August 29, 1996, at p. 22.) When interviewed by trial counsel,
Deputy Green made no mention of offering Mr. Perez a phone call.
(RT August 29, 1996, at p. 22.) In fact, when asked during the
interview "and what opportunity did you provide him to contact this
attorney?" Deputy Green replied "Well, at that point, I took him to jail
because he said earlier while we were in the vehicle, he said, I want
an attorney before | take any tests of my blood.” (RT August 29,
1996, at p. 29.)

During examination by trial counsel, Deputy Green stated
that, after the first request for an attorney, what he did next was to ask
Mr. Perez if he would submit to a chemical test. (RT August 29,
1996, at p. 12.) After the next request for an attorney Deputy Green
stated that what he did was to tell Mr. Perez that he was not permitted
to have an attorney present during the testing. (RT August 29, 1996,
at p. 14.) When questioned by trial counsel as to what opportunities
he gave Mr. Perez to contact an attorney, Office Green testified he
had no opportunity at the scene to let Mr. Perez contact an attorney.
(RT August 29,1 996, at p. 14.) He also testified that, while he was
driving past public telephones, he did not stop to let Mr. Perez use the
telephone. (RT August 29, 1996, at p. 14-15.) When the court
inquired as to whether Mr. Perez was given the opportunity to call an
attomey at the jail, Deputy Green still had no recollection of offering
to allow Mr. Perez to call an attorney and stated that the jail personnel
would allow one phone call. (RT August 29, 1996, at p. 16.) During
examination by the prosecutor, Deputy Green was asked:

Q: At any time post-arrest, did you offer
the defendant an opportunity to make
a phone call to an attorney?

A: Not while I was at Pre-Trial Services.
I honestly don't recall.

(RT August 29, 1996, at p. 19.) After trial counsel for Mr. Perez
established that Deputy Green was under no time pressure to
complete the chemical tests within 2 hours and phone calls would

XXili

4
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have taken 5 to 10 minutes that Deputy Green suddenly recalled
offering Mr. Perez the opportunity to call an attorney. (RT August
29, 1996, at p. 21.) (Even so, Deputy Green's testimony was that Mr.
Perez wanted an attorney present and Deputy Green did not think that
Mr. Perez had the right to have an attorney present. Even by Deputy
Green's newly recovered memory, Mr. Perez's right to counsel was
denied.) Deputy Green subsequently lost his newly recovered
memory after the evidentiary hearing, testifying at the first trial that
he gave Mr. Perez an opportunity to use the phone only by taking him
to jail:
Q. What opportunity did you give him at
any time to contact an attorney?

A. I informed him that phones were
available at pretrial services for him to
make a phone call if pretrial would
allow that.

(R.T. September 6, 1996, p. 72)

Given the previous inconsistencies in Deputy Green's
testimony, reports and interview, given the sudden motive to fabricate
upon being pinned down as to the lack of any time pressure, and
given Deputy Green's failure to recollect the crucial issue during his
interview or in his police report, Deputy Green's deception of Judge
Donfeld is readily apparent. Had Mr. Perez been present at the
evidentiary hearing, Mr. Perez would have testified that, at no point,
did Deputy Green ever offer him the opportunity to make a phone
call. (R.T. March 3, 1997, p. 6-7.)

The right of a defendant charged with a felony to be
personally present in the courtroom at every stage of his trial
conducted is fundamental to our system of justice. "A leading
principle that pervades the entire law of criminal procedure is that,
after indictinent found, nothing shall be done in the absence of the
prisoner.” Lewis v. United States, 146 U.S. 370, 372, 13 S.Ct. 136,
137, 36 L.Ed. 1011 (1892). This principle has been constantly upheld
and continually reaffirmed. Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202,
28 L.Ed. 262 (1884); Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057,

XXiv

25 L.Ed.2d 353 (1970). One of the most basic of the rights
guaranteed by the confrontation clause is the accused right to be
present at every stage of his trial. Lewis v. United States, supra. The
Supreme Court has also stated that a defendant "has a due process
right to be present in his own person whenever his presence has a
relation, reasonably substantial, to the fullness of his opportunity to
defend against the charge." Kentucky v. Stincer, 482 U.S. 730, 745,
107 S.Ct. 26, 58, 96 L.Ed.2d 631 (1987). The court in Stincer also
stated that a defendant is constitutionally "guaranteed the right to
present at any stage of the criminal proceeding that is critical to its
outcome if his presence would contribute to the fairness of the
procedure." Stincer, 482 U.S. at 745.

The right to be present at trial is protected by the due process
and confrontation clauses of the Sixth Amendment to the United
States Constitution and by article II, §§ 4 and 24 of the Arizona
Constitution. State v. Levato, 924 P.2d445, ss Ariz. —_— (1996).
17 A.R.S. Rules of Crim.Proc., Rule 9.1, permits the inference that
a defendant is voluntarily absent from a proceeding, thus waiving his
rights to confrontation and due process, if the defendant had personal
notice of the time of the proceeding, the right to be present at it, and
a warning that the proceeding would go forward in his or her absence.

In State v. Bishop, 139 Ariz. 567, 679 P.2d 1054 (1984), the
court remanded for a new competency hearing where the record was
insufficient to conclude that the defendant was aware of the nature of
the third and fourth days of his Rule 11 hearing when he refused
transportation from the jail to court. The new hearing was to be held
either in the defendant's presence or with his presence to have been
found properly and voluntarily waived. Mr. Perez similarly requests
that the evidentiary hearing in this matter be held in his presence as
he maintained constant contact with both his attorney and Pre-Trial
Services and yet never received notice that the hearing was being held
and cannot, therefore, be said to have waived his right to confront
Deputy Green and to be present to testify and to assist his attorney at

the hearing.
CONCLUSION
As Deputy Greene has denied Mr. Perez his right to counsel
under McNutt by refusing his request to have an attorney present

XXV

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before testing, Mr. Perez requests that his conviction in this matter be
set aside.

As Mr. Perez never received personal notice of the August 29,
1997, evidentiary hearing, and as his presence was necessary to a fair
determination of the facts at that hearing, Mr. Perez alternatively
requests that this matter be remanded for a hearing to be held in his
presence.

XXVi

APRIL 11.1997, JUDGEMENT AND CONVICTION
SUPERIOR COURT OF ARIZONA

{ James N. Corbett |
PIMA COUNTY

TUCSON, AZ

8 April 11. 1997 Hon. JohnE. Davis Rosemarie Chastain
Div Date Judge Deputy

NO. CR-52507

STATE OF ARIZONA Michael Gatto on behaif of Vehicular
Offense Team
for the State
VS
FERMIN C. PEREZ, aka
Fermin C. Perez, S. Jonathan Young for the Defendant
Fernando Perez
DATE(S) OF BIRTH: 717163; 7/7/62
SENTENCE OF PROBATION

The State is represented by the above named Deputy County
Attorney; the Defendant is present with counsel named above.

COURT REPORTER: Terri Faust

The Defendant is advised of the charge and the determination of guilt,
and all parties are given the opportunity to speak.

XXVIII

Ol

Pursuant to A.R.S. Section | 3-607, the Court finds as follows:

JURY VERDICT The determination of guilt was based upon a
verdict of guilty after a jury trial.

Page |
8 April 11. 1997 Hon. JohnE. Davis Rosemarie Chastain

Div Date Judge Deputy
NO. CR-52507

STATE VS. FERMIN C. PEREZ, aka
Fermin C. Perez,
Fernando Perez

Having found no legal cause to delay rendition of judgment and
pronouncement of sentence, the Court enters the following judgment

and sentence.

IT IS THE JUDGMENT OF THE COURT that the Defendant is
guilty of the crime of COUNT ONE, AGGRAVATED DRIVING
UNDER THE INFLUENCE OF INTOXICATING LIQUOR, WHILE
LICENSE OR PRIVILEGE TO DRIVE IS SUSPENDED,
CANCELED, REVOKED OR REFUSED OR IN VIOLATION OF
A RESTRICTION, a Class four felony, nondangerous and
nonrepetitive offense, in violation of A.R.S. 28697(A)(1), (D), (E),
(H), (I) and (J); 28-692(A\1) committed on September 21, 1993.

Upon consideration of the offense, and the facts, law and
circumstances involved in this case,

THE COURT FINDS that the Defendant is eligible for probation. The
specific reasons for the granting of probation are stated by the Court
on the record.

The Court further finds that the term of probation should include

XXVill

incarceration in the County Jail as a term and condition of probation.
As punishment for this/these crime(s),

IT IS ORDERED suspending imposition of sentence and placing the
Defendant on probation for a period of 10 year(s) commencing this
date, April 11, 1997 under the supervision of the Adult Probation
Department of this Court, in accordance with the formal Judgment
and Order suspending sentence and imposing terms of probation
signed by the Court.

As conditions of probation, the defendant shall:

1. Pay monthly probation fees to the Clerk of the Superior Court of
$50.

2. Be incarcerated in the Pima County Jail for a period of 6 month(s),
which jail sentence is suspended pending resolution of the defendant's

appeal. During the service of that sentence, the defendant will be
eligible for work furlough.

Page 2
8 Aprilll.1997 Hon.JohnE. Davis RosemarieChastain
Div Date Judge Deputy
NO. CR-52507
STATE VS. FERMIN C. PEREZ, aka
Fermin C. Perez,
Fernando Perez

3. Pay $100 to the Victim Compensation Fund.

4. Pay attorney's fees of $1,000, payable to the Clerk of the Superior
Court.

5. Pay a fine of $2,000, payable to the Clerk of the Superior Court.

XX1X

6. If assessments are not paid this same date, the defendant is further -

assessed $12 pursuant to A.R.S. Section 12-1 16.

7. Contribute 85 hours of community service, at the rate of not less
than ten (10) hours per month.

8. Abide by all requirements contained in the Conditions of Probation
and be subject to all requirements in Attachment A to the Conditions
of Probation, in the discretion of the probation of ficer.

9. Consume no alcoholic beverages.

10. Participate in treatment and/or training programs as directed by
the probation officer.

11. In accordance with A.R.S. 12-299, participate in the Community
Punishment Program, including participating in substance abuse
counseling, performing 85 hours community service, abiding by
curfew/approved schedule, submitting to drug/alcohol tests,
consuming no alcohol and participating in a life/social skills program.
THE COURT FINDS that, but for the Community Punishment
Program, the defendant would be sentenced to jail or prison.

12. Not operate a motor vehicle without a valid driver's license and
not obtain a driver’ s license unless and until the probation officer

approves.

~

13. Take Antabuse if medically prescribed and at the direction of the
probation of ficer.

14. Attend the MADD-Victim Impact Penal.
On agreement,
Page 3

8 April 11 1997 Hon. JohnE. Davis Rosemarie Chastain
Div Date Judge Deputy

XXX

NO. CR-52507

STATE VS. FERMIN C. PEREZ, aka
Fermin C. Perez,
Fernando Perez

IT IS FURTHER ORDERED that all conditions of probation are
considered conditions of the defendant's release while on released on
appeal bond and any violation of those can result in a motion to
revoke release even though an appeal bond has been posted and could
result in the defendant going to jail or to the Department of
Corrections.

IT IS THE ' JRTHER JUDGMENT AND SENTENCE OF THE
COURT that the defendant is sentenced to the mandatory prison term
of FOUR (4) MONTHS, which prison sentence is suspended because
of the granting of the appeal bond in this case. Should the conviction
be affirmed or the defendant not remain on appeal bond, he must
serve the mandatory four months in the Department of Corrections.

IT IS FURTHER ORDERED that the driver's license issued to the
defendant is forfeited to the court at this time pursuant to statute. The
Clerk is directed to forward the defendant's driver's license to the
Motor Vehicle Department.

The written terms and conditions of probation are handed to the
Defendant for explanation, acceptance, and signature. Defendant
agrees to the stated waiver of right of extradition. The Defendant is
advised concerning the consequences of failure to abide by the
conditions of probation.

The Defendant is advised concerning rights of review and written
notice of those rights is provided.

ISSUED: Order of Release

IT IS ORDERED that the Clerk of the Superior Court remit to the

XXXi

Department of Corrections a copy of this Order. plus all presentence
reports, probation violation reports, medical and psychological
reports relating to the Defendant and involving this cause.

FILED: Conditions of Probation and Notice of Right to Review, both
signed by the Defendant and copies provided to the Defendant;
Presentence Report--Part One.

Page 4

8 April 11. 1997 Hon. JohnE. Davis RosemarieChastain
Div Date Judge Deputy
NO. CR-52507

STATE VS. FERMIN C. PEREZ, aka
Fermin C. Perez,
Fernando Perez

Let the record reflect that the Defendant's fingerprint is permanently
affixed to the signature page of this sentencing order in open Court.

FILED IN COURT: Notice of Appeal Conditions of Release Setting

Bond on Appeal in the amount of $1,100 Surety Bond on Appeal in
the Amount of $1,100

MARCH 10, 1997, ORDER DENYING MOTION TO VACATE
JUDGEMENT AND DENYING REQUEST FOR REHEARING

ARIZONA SUPERIOR COURT, PIMA COUNTY

JUDGE: HON. JOHN E. DAVIS CASE NO. CR - 52507
COURT REPORTER: none DATE: March 10, 1997

STATE OF ARIZONA

VS.

XXXil

FERMIN C. PEREZ, aka Fernando nmn Perez
MINUTE ENTRY
UNDER ADVISEMENT RULING

IT IS ORDERED the Defendant's request for Judgment to be vacated
is DENIED.

IT IS FURTHER ORDERED the Defendant's request for re-hearing
of Judge Donfeld’s rulings on the Defendant's pretrial motions is
DENIED.

IT IS FURTHER ORDERED the Defendant's request for Appeal
Bond pursuant to Rule 7.2(6)(1) is GRANTED.

REPORTER'S TRANSCRIPT OF MARCH 3, 1997, HEARING
ON MOTION TO VACATE JUDGEMENT/MOTION FOR NEW
: HEARING
FERMIN PEREZ,
having been sworn to tell the truth, the whole truth, and
nothing but the truth, testified as follows:
DIRECT EXAMINATION
BY MR. YOUNG:
Q. Sir, will you please tell us your name?
A. Fermin Perez.

Q. How old are you?

XXX1ii

A. 33 years old.

Q. And where do you work?

A. Citizens Utility Company.

Q. Are you the defendant in this case?

A. Yes, I am.

Q. And your sentencing is pending now, you understand,
on the 17th of this month?

A. Yes.

Q. Can you tell us who your attorney was for your

trial?

A. Tamara Walters.

Q. And how many times was that trial held?

A. The trial was held twice.

Q. Okay. Before those trials took place, there was a
hearing held on August 29th of last year. Were you present
at that hearing?

A. No, I wasn't.
Q. Was there a reason why you weren't present at that hearing?

A. I didn't know I was supposed to be there.

XXXIV

Q. Have you looked at your calendar for last year?

A. Yes.

Q. And where were you on August 29th of last year?

A. In Nogales.

Q. Did you bring the calendar with you today?

A. Yes, I did.

Q. How many days were you in Nogales that week?

A. I was there virtually all week, with the exception

of Wednesday.

Q. Do you recall receiving any notice of that hearing?

A. No, I don't.

MR. YOUNG: May I approach the witness, Your Honor?
THE COURT: Yes.

BY MR. YOUNG:

Q. Sir, I'll ask you to refer to what's been marked as
Defense Exhibit A. Ask you if you recognize that calendar?
A. Yes, I do.

Q. Is that your calendar from August of 1996?

A. Yes, it was.

Q. And did you refer to it at my request?

A. I did.

Q. On August the 29th, do you have any indication that
you have a court hearing on that date?

A. No, I don't.

Q. Have there been any changes made to that calendar
since last August?

A. No.

MR. YOUNG: I'll move for the admission of Defense
A, Your Honor.

MR . GATTO: No objection.

THE COURT: A will be admitted.

(Defense Exhibit A admitted into evidence.)

BY MR. YOUNG:

Q. Along those lines sir, were you present earlier this year at a motion
to set aside a judgment which Ms. Walters filed in your case?

A. Could you explain that again?

Q. This year, do you recall a motion being heard by Judge Davis to
set aside the judgment in this case?

A. Yes, I have.

XXXVI

Q. And was that held at the same time as I substituted
in as counsel of record for you?

A. Yes.

Q. How did you find out about that hearing?

A. Again, I had no idea that I was supposed to be there. The only way
I was notified is by you. You had informed me.

Q. Did I ask you whether or not you were going to be
there?

A. Yes. Asked me, yes.

Q. Do you recall receiving any letters from Ms.
Walters regarding that hearing?

A. No, I don't.

Q. And have you searched -- do you keep a file on this
case?

A. Absolutely.

Q. Have you looked through that file for any letters
from Ms. Walters regarding a hearing on August 29th?
A. Yes.

Q. Did somebody else help you search through that

file?

XXXVil

A. Yes.

Q. Who's that?

A. My wife, Betty Perez.

Q. Is she here today?

A. Yes, she is.

Q. How long have you been married?

A. 14 years -- or going on 14 years, I'm sorry.

Q. If you were present at that hearing, there are two
issues that I would like to ask you about. One is after you

Ot I-AA into the Pima County jail on this case, was there were Do

OOO et
.

a period of time that you spent in the holding cell before
Pretrial Services came to get you?

A. Yes.

Q. And approximately how long was that period of time?
A. Approximately an hour to an hour and-a-half.

Q. Had you over talked to Ms. Walters about that

period of time previously?

A. She never asked. We never discussed it.

Q. And do you recall what time they actually booked

XXXVIil

you?

A. I believe it was just before 2:00 o'clock.

Q. Could you be mistaken about that?

A. I could be.

Q. Also along those lines, do you recall requesting an
attorney that evening?

A. Yes.

Q. And who did you request to allow you to contact an
attorney?

A. Well, I requested that of Officer Green.

Q. How many times did you request that?

A. Twice.

Q. Did Mr. -- Officer Green ever give you the
opportunity to contact an attorney?

A. No, he didn't.

Q. Did he ever offer you a telephone call?

A. No, he didn't.
Q. Have you reviewed the testimony of Officer Green at

that hearing on August 29th?

XXXIX

A. Yes, I did.

Q. Have you seen the part where he ultimately stated
that he did offer you a telephone call?

A. Yes, I did.

Q. And do you disagree with that?

A. Absolutely, I disagree.

Q. Now Officer Green stated that you wished to have an
attorney present. Was that actually the case?

A. I asked to contact an attorney either in person or
by phone.

Q. Would you have liked to have had an attorney
present? ~

A. Absolutely. I'd love to have an attorney present.

Q. If you were going to have an attorney present, how would you
arrange that at that time of night to have an

attorney present?
A. I would have to call them via telephone.
Q. And your testimony is that you did not refuse to

use the telephone?

xl

MR. GATTO: Objection. Leading.

4
4
‘

THE WITNESS: I did not
THE COURT: Overruled. He can answer.

MR. YOUNG: That's all I have, Your Honor.
THE COURT: Cross-examination?

MR. GATTO: Thanks, Judge.
CROSS-EXAMINATION

BY MR. GATTO:

Q. Mr. Perez, this incident we're talking about
occurred back in 1993, right?

A. Yes, sir.

Q. September 21st?

A. Yes, sir.

Q. You were drinking alcohol that night, weren't you?
A. Yes, sir.

Q. You testified at two trials in this matter, right?

A. Yes, sir.

Q. The first one was September, October of last year?

A. About that time; yes, sir.

xli

Q. And then the second one was in December?

A. Yes, sir.

Q. And from the two trials you changed your testimony
on a number of points: isn't that correct?

A. I can't recall.

Q. Well, let's ask you about the size of your engine.
You changed your testimony specifically on the point
regarding the size of your engine; isn't that correct?

A. Yes. Q. At the first trial you testified it was -- withdraw
that question.

In regard to your testimony on that issue, you

alleged your car could not go a hundred miles an hour,
correct?

A. That's correct.

Q. The second trial Deputy Green testified that your
car had a V-8 engine in it; isn't that correct?

A. That's correct.

Q. And you had testified on two occasions the car only

had a V-6. Is that correct?

xlii

A. | believed that's what it had at the time.

Q. At the second trial there was an issue regarding

your weight, correct?

A. That's correct.

Q. You testified on the night of your arrest you weighed 240 pounds?
A. Approximately.

Q. You were handed -- you also testified that you had
weighed approximately 240 pounds for the last six to eight
years, correct?

A. Approximately.

Q. Preceding the date of that trial?

A. I'm sorry?

Q. Preceding the date of that trial. So from 1990 to

1996, you hadn't weighed less than 240, correct?
A. Yes, sir.

Q. You were handed at that trial a photo of your
driver's license, which represented your weight as 200

pounds, correct?

A. Yes.

xiii

Q. That was information you provided to the Motor Vehicle Division
regarding your weight. Correct?

A. That's correct.

Q. In regards to the incident that took place the

night of your arrest, Deputy Green did allow you an
opportunity to make a phone call at Pretrial Services; isn't
that correct?

A. No.

Q. He provided you a phone book?

A. No.

Q. Told you there was a phone available at Pretrial
Services when you were there, correct?

A. No. He didn't advise me at all.

Q. In regards to your request to have an attorney, you

told Deputy Green you wanted to have an attorney physically
present for the biood draw; is that correct?

A. Either present or by telephone.

Q. Deputy Green told you you did not have the right to

have an attorney present for the draw. Correct?

xliv

A. That's what he told me, yes.
MR. GATTO: I dontt have any further questions,

Judge.

THE COURT: Any redirect, Mr. Young?

MR. YOUNG: Nothing further, Your Honor.

THE COURT: Okay. Thank you, sir. You can step
down. Have a seat with your attorney.

MR. YOUNG: I'll call one other witness, Your
Honor. Betty Perez.

BETTY PEREZ,

having been sworn to tell the truth, the whole truth, and
nothing but the truth, testified as follows:

THE COURT: Ma'am, would you have a seat right
there, please?

DIRECT EXAMINATION

BY MR. YOUNG:

Q. Ma'am, would you please tell us your name?

A. My name is Betty Jean Perez.

Q. Do you know Fermin Perez?

xlv

A. Yes, I do.

Q. Is he the gentleman seated here next to me?

A. Yes. Uh-huh.

Q. How long have you known Mr. Perez? A. Um, I've known him for
a long time. We were first introduced at age 16, and we've been

married for almost 14

years.
Were you aware of his arrest in 1993 for DUI?

Yes, I was.

And that was the case that we're here on today; is
that right?

A. Mm-hm. Yes.

Q. Since that time have you, along with Mr. Perez, maintained a file
regarding that arrest?

A. Um -- yes, I have.

Q. What kinds of things go into that file?

A. I put everything in there that the attorney sends

us .

Q. And what kinds of things do the attorneys send you?
A. They send us letters -- just mostly letters and

motions they make.

xlvi

Q. At my request did you go through that file with Mr.
Perez?

A. Yes, I did.

Q. And were you and Mr. Perez able to find any letters
from Tamara Walters indicating that there was a hearing that
was going to be held on August 29th of 1996?

A. No. I didn't find anything.

Q. And when did you go through that file?

A. Um, we went through that file just like a week ago,
I guess.

MR. YOUNG: That's all I have, Your Honor.

THE COURT: Cross-examination?

MR. GATTO: No cross, Judge.

THE COURT: Thank you, ma'am. You can step down.

*s**# * *

CERTIFICATE

I, Terri L. Faust, do hereby certify that I took the machine shorthand
notes in the foregoing matter; that the same was t-anscribed via
computer-aided transcription; that the preceding pages of typewritten
matter are a true, correct and complete transcription of those
proceedings ordered, to the best of my skill and ability.

xIvii

aa sasceerecen tetereeentneeceeieniaeaiaiitiatiiaaaiiell

Terri L. Faust

Court Reporter

Pima County Superior Court ;
Tucson, Arizona

The defendant, Fermin Perez, by and through his
attorney, Jon Young, hereby requests that this Court grant his release
pending appeal pursuant to 17 A.R.S. Rules of Crim.Proc., Rule
7.2(b)(1), as this case will likely be set aside on appeal under McNutt
vy. Superior Court, 133 Ariz. 7, 648 P.2d 122 (1982), because the
arresting officer denied Mr. Perez's right to consult with counsel, both
by telephone and in person following Mr. Perez's arrest.
Alternatively, Mr. Perez requests that the judgement in this matter be
vacated as having been obtained in violation of Mr. Perez's
constitutional rights, specifically his right to counsel at the time of his
arrest and his right to effective assistance of counsel at the evidentiary
hearing held in this matter. Mr. Perez also requests that an
evidentiary hearing be held to determine the voluntariness of his
absence at the hearing held August 29, 1996.

MEMORANDUM OF POINTS AND AUTHORITIES

MR. PEREZ SHOULD BE GRANTED RELEASE PENDING
THE APPEAL IN THIS MATTER AS THERE ARE
"REASONABLE GROUNDS TO BELIEVE THAT THE
CONVICTION MAY BE REVERSED ON APPEAL” BASED
ON THE ARRESTING OFFICER'S ADMITTED DENIAL OF
MR. PEREZ'S RIGHT TO CONSULT WITH COUNSEL BY
TELEPHONE OR IN PERSON FOLLOWING MR. PEREZ'S
ARREST

xl viii

17 A.R.S. Rules of Crim.Proc., Rule 7.2(b)(1), provides for
the release of an accused pending appeal if there are reasonable
grounds to believe the conviction may be reversed.

After a person has been convicted of any offense for

which the person will in all reasonable probability

suffer a sentence of imprisonment, the person shall

not be released on bail or on his or her own

recognizance unless it is established that there are

reasonable grounds to believe that the conviction may

be set aside on a motion for new trial, reversed on

appeal, or vacated in any post-conviction proceeding.
A line of cases beginning with McNutt v. Superior Court, 133 Ariz.
7, 648 P.2d 122 (1982), suggests that Mr. Perez's conviction will
ultimately be set aside based solely on Deputy Green's testimony at
the August 29, 1996, evidentiary hearing held in this matter.

Contrary to the understanding of everyone who appeared at
the August 29, 1996, evidentiary hearing in this matter, McNutt v.
Superior Court allows an accused to contact his lawyer either by

telephone or in person:

"We agree with the Court of Appeals of New York,
which said, ‘Law enforcement officials may not,
without justification, prevent access between the
criminal accused and his lawyer, available in person
or by immediate telephone communication, if such
access does not interfere unduly with the matter at
hand.’ People v. Gursey, 22 N.Y.2d 224, 227, 239
N.E.2d 351, 352, 292 N.Y.S.2d 416, 418 (1968)."
(Emphasis added.)

MeNutt v. Superior Court, 133 Ariz. 7, 9, 648 P.2d 122, 124 (1982).

The court went on to state, footnote number 2, "If the lawyer cannot

be reached by telephone or cannot promptly appear where the

defendant is, the state may continue with its detention procedures."
(Emphasis added.) The defendant is entitled to consult with the

attorney "before taking a chemical breath test." Kunzler v. Superior

xlix

i eemeaenaaiaiiaiitiaabiadiiaaiaiii

Court, 154 Ariz. 568, 744 P.2d 669 (1987).

Deputy Green repeatedly testified that, following his arrest,
Mr. Perez repeatedly stated that he "wanted an attomey right now" or
that he "wanted an attorney present." (RT August 29, 1996, p. 12, 13,
14, 15, 16, 18, 19, 21, 22 and 23.) Deputy Green testified to his
apparent misunderstanding of a suspect's right to counsel, stating "|
had been trained that it was not his right to have an attorney present
at the point of the chemical test.". (RT August 29, 1996, p. 23.)
Deputy Green also testified repeatedly that he told Mr. Perez that Mr.
Perez did not have the right to have an attorney present. (RT August
29, 1996, p. 14, 18-19, 22 and 23-24.) Even the prosecutor stated
during oral argument, "He's not entitled to have an attorney present
..+." (RT August 29, 1996, p. 27.)

Because Office Green did not properly understand Mr. Perez's
right to consult in person with an attorney, Mr. Perez was denied any
attempt to secure that right. Because Mr. Perez's defense counsel had
apparently not read McNutt or any of several of the Arizona Supreme
Court cases subsequent to McNutt closely enough in preparation for
the hearing, she was unable to offer Judge Donfeld any guidance or
to cite Judge Donfeld to the appropriate portion of McNutt.

Should Mr. Perez receive a term of probation with the
condition that he serve a period of 4 months incarceration in DOC,
his incarceration will long since have ended by the time the Arizona
Court of Appeals is able to render a decision. It is within the
discretion of the trial judge to permit a defendant with a conviction
to remain on bond after a judgement and sentence during the
pendency of an appeal. State v. Quinn, 10 Ariz. App. 552, 460 P.2d
658 (1969). Alternatively, the court could vacate the judgement
pursuant to 17 A.R.S. Rules of Crim.Proc., Rule 24.2 and allow the
state to appeal.

THE JUDGEMENT IN THIS MATTER SHOULD BE
VACATED AS MR. PEREZ WAS DENIED HIS RIGHT TO
CONSULT, IN PERSON, WITH AN ATTORNEY FOLLOWING
HIS ARREST AND AS MR. PEREZ WAS DENIED THE RIGHT
TO EFFECTIVE ASSISTANCE OF COUNSEL AT THE
EVIDENTIARY HEARING IN THIS MATTER

I

17 A.R.S. Rules of Crim.Proc., Rule 24.2 permits the court to
vacate a judgement on the grounds that the conviction was obtained
in violation of the United State's or Arizona Constitutions. Mr. Perez
was denied the assistance of counsel when Deputy Green, based on
his own misunderstanding of the right to counsel, refused to allow
Mr. Perez to have an attorney present. McNutt v. Superior Court,
supra, prohibits law enforcement officials from preventing access
between the criminal accused and his lawyer, available in person, or
by immediate telephone communication, if such access does not
interfere unduly with the matter at hand. The language in McNutt
permitting a defendant to consult with his lawyer in person was
repeated in State v. Holland, 147 Ariz. 453, 455, 711 P.2d 592, 594

(1985), in Kunzler v. Superior Court, 154 Ariz 568, 570, 744 P.2d
669, 671 (1987) and in State v. Juarez, 161 Ariz., 76, 80, 775 P.2d

1140, 1144 (1989). See also Ching v. Lewis, 895 F.2d 608 (9th Cir.
1989), reversing grant of summary judgement in § 1983 case and
holding that arbitrary policy of denying contact visits with attorney,
requiring instead that the prisoner communicate with attorney through
hole in glass, or by mail or by telephone, prohibits effective attorney-
client communication.

The remedy for such a denial, if the accused has requested an
attorney and if the accused is not released immediately after the

= investigation, is the dismissal of the charges. McNutt, supra; State v.
Holland, 147 Ariz. 453, 455, 711 P.2d 592, 594 (1985); State v.
Dennett, slip op. No. 1 CA-CR 91-1807 (November 9, 1993). In
Holland, as in McNutt, the Supreme Court required that the charges
be dismissed as the remedy stating that it is impossible to foresee
what advice would have been given the defendant had he been able
to confer privately with counsel.

The state seems to indicate, in its written response to Mr.
Perez's McNutt Motion filed prior to the evidentiary hearing, that the
fact that any consultation with an attorney would have delayed
somewhat the DUI investigation excuses Deputy Green's refusal to
allow Mr. Perez to have an attorney present. The accused is entitled
to such access, however, as long as it does not interfere unduly with

the matter at hand. State v. Holland, 147 Ariz. at 464; McNutt v.
Superior Court, 133 Ariz. at 9; Kunzler v. Superior Court, 154 Ariz.

li

— ~_—

at 570; State v. Juarez, 161 Ariz. at 80. Mr. Perez was stopped at
1:05 a.m. and placed under arrest at 1:25 a.m. At that point he began

requesting an attorney. (RT August 29, 1996, p. 11-12.) Deputy
Green testified that time was not a problem with respect to the 2 hour
window for obtaining a blood test. (RT August 29, 1996, p. 20.) As
the time factor was not a pressure, and as Deputy Green interpreted
Mr. Perez's demand to have an attorney present as a refusal! to take the
breath test, the request for an attorney could not have presented the
prospect of undue delay. If fact, based on Deputy Green's treatment
of the request for counsel as a refusal. all that remained at that point
was to transport Mr. Perez to the Pima County Jail. The state
appears, however, to have abandoned the idea of undue delay at the
evidentiary hearing.

Had trial counsel read any of the relevant cases, McNutt,
Holland, Kunzier or Juarez, prior to the evidentiary hearing, she could
have pointed out to J udge Donfeld that Deputy Green and the
prosecutor were both incorrect in their assertions that Mr. Perez was
not entitled to consult an attomey in person before taking a chemical
test. Based solely on the testimony of Deputy Green, the charges
should have been dismissed. The touchstone of an ineffective
assistance of counsel claim is whether the defendant was denied a fair
trial. » 466 U.S. 668, 104 S.Ct. 1052, 80
L.Ed.2d 674 (1984); State v. Valdez, 167 Ariz. 328, 806 P.2d 1376
(1991). The defendant must show first that trial counsel's
performance fell below an objective standard of reasonably effective
assistance under prevailing professional norms, and second, that trial
counsel's performance has prejudiced defendant's case. State v.
Valdez, supra. Trial counsel's basic unfamiliarity with the cases upon
which she was relying falls below an objective standard. The fact that
the language of the cases is outcome determinative establishes the
prejudice.

As an alternative to finding trial counsel ineffective, this court
could, pursuant to 17 A.R.S. Rules of Crim.Proc., Rule 16.1(d),

reconsider Judge Donfeld's previous ruling upon a finding of good
cause.

NEITHER RULE 16.1(D) NOR THE DOCTRINE OF LAW OF

lii

THE CASE PREVENTS THIS COURT FROM
RECONSIDERING THE EARLIER RULING OF ANOTHER
JUDGE

In State v. King, 180 Ariz. 268, 883 P.2d 1024 (1994), the
court addressed the application of the doctrine of law of the case and
Rule 16.1(d). The court first noted that, despite its general adherence
to the doctrine of law of the case, it has recognized it as a rule of
procedure, not substance. The court then went to state that:

"A court does not lack the power to change a ruling
simply because it ruled on the question at an earlier
stage.

This doctrine does not prevent a judge from
reconsidering his or her previous non-final orders.
Plumb v. State, 809 P.2d 734, 739 (Utah 1990). Nor
does it prevent a different judge, sitting on the same
case, from reconsidering the first judge's prior, non-
final rulings. (Citations omitted.) In fact, the court's
discretion to reconsider an earlier ruling is reflected in
one of our procedural rules, which provides: Finality
of Pretrial Determinations. Except for good cause, or
as otherwise provided by these rules, an issue
previously determined by the court shall not be
reconsidered. Rule 16.1(d), Arizona Rules of
Criminal Procedure."

State v. King, 180 Ariz. at 279. The court in King then held that the
trial judge did not abuse his discretion in reconsidering the ruling of
a previous judge suppressing identification testimony. Good cause to
reconsider Judge Donfeld's ruling can be found either in the erroneous
law presented to Judge Donfeld without the benefit of an opposing
defense attorney familiar with the cases upon which she was relying,
or good cause can be found to hold the evidentiary hearing a second
time with proper notice to Mr. Perez to allow him to appear and
confront Deputy Green, to assist in cross examination and to testify

lili

on his own behalf.

MR. PEREZ'S LACK OF NOTICE OF THE EVIDENTIARY
HEARING IN THIS CASE DENIED MR. PEREZ THE RIGHT
TO CONFRONT WITNESSES AGAINST HIM, DENIED MR.

PEREZ HIS DUE PROCESS RIGHT TO BE PRESENT AT ALL
STAGES OF THE PROCEEDINGS AND DENIED THE RIGHT
TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL

Mr. Perez was not present at the evidentiary hearing held in
this matter on August 29, 1996, solely because he did not receive
notice of the hearing date.’ Because of his involuntary absence from
the hearing, Mr. Perez was unable to confront the witness, Deputy
Green, he was unable to rebut the testimony of Office Green and he
was unable to assist his trial counsel in further cross-examining
Deputy Green.

Deputy Green offered two critical pieces of testimony which
Mr. Perez was unable to confront or to rebut. The first was Deputy
Green's testimony that Mr. Perez had the opportunity to request one
phone call from jail personnel when he was booked into the Pima
County Jail. (RT August 29, 1996, p. 16.) Had Mr. Perez been
present at the evidentiary hearing, he would have pointed out to trial
counsel that Deputy Green left him at the Pima County Jail in a
holding cell and it was well over an hour before jail personnel
removed him from the holding cell for booking. A fact easily verified
by reference to Mr. Perez's booking sheet which shows him being
booked into the Pima County Jail at 2:47 a.m. (Trial counsel further
exhibited her lack of familiarity with the McNutt line of cases by

failing to point out to the court that both Kunzler and State v. Juarez,
161 Ariz. 76, 775 P.2d 1140 (1989), allow the accused to consult an

While a letter may have been sent to Mr. Perez, neither he nor his
wife ever received it, it is not in the file he and his wife have kept,
and it is not reflected in his 1996 calendar. Furthermore, the letter
does not indicate that there will be witness testimony nor does it
indicate that Mr. Perez should be present.

liv

attorney before deciding to take a chemical test. By the time Mr.
Perez was booked. Deputy Green had advised him of his license
suspension for refusal to take a chemical test, completed his
paperwork and left the jail.) Judge Donfeld obviously was not
informed that the license suspension had already been served and the
investigation completed by the time that Mr. Perez was booked as
Judge Donfeld commented during argument that Mr. Perez could
have elected the breath test while at Pre-Trial Services. (RT August
29, 1996, at p. 29-30.)

Most damaging to Mr. Perez was Deputy Green's surprise
testimony, in Mr. Perez's absence, that he had offered Mr. Perez the
opportunity to call an attorney. (RT August 29, 1996, at p. 21.)
Although Deputy Green quoted Mr. Perez's exact words in requesting
an attorney at several points in his police report (RT August 29, 1996,
p. 13, 16.), Deputy Green never mentioned in his police report
offering a phone call to Mr. Perez or Mr. Perez refusing a phone call.
(RT August 29, 1996, at p. 22.) When interviewed by trial counsel,
Deputy Green made no mention of offering Mr. Perez a phone call.
(RT August 29, 1996, at p. 22.) In fact, when asked during the
interview "and what opportunity did you provide him to contact this
attorney?" Deputy Green replied "Well, at that point, i took him to jail
because he said earlier while we were in the vehicle, he said, I want
an attorney before I take any tests of my blood." (RT August 29,
1996, at p. 29.)

Deputy Green's recollection of this key issue occurred after
both direct and cross-examination had been completed in the
evidentiary hearing. During examination by trial counsel, Deputy
Green stated that after the first request for an attorney, what he did
next was to ask Mr. Perez if he would submit to a chemical test. (RT
August 29, 1996, at p. 12.) After the next request for an attorney
Deputy Green stated that what he did was to tell Mr. Perez that he
was not permitted to have an attorney present during the testing. (RT
August 29, 1996, at p. 14.) When questiones by trial counsel as to
what opportunities he gave Mr. Perez to contact an attorney, Office
Green testified he had no opportunity at the scene to let Mr. Perez
contact an attorney. (RT August 29,1 996, at p. 14.) He also testified
that, while he was driving past public telephones, he did not stop to

lv

let Mr. Perez use the telephone. (RT August 29, 1996, at p. 14-15.)
When the court inquired as to whether Mr. Perez was given the
opportunity to call an attorney at the jail, Deputy Green still had no
recollection of offering to allow Mr. Perez to call an attorney and
stated that the jail personnel would allow one phone call. (RT August
29, 1996, at p. 16.) During examination by the prosecutor, Deputy
Green was asked:

Q: At any time post-arrest, did you offer
the defendant an opportunity to make
a phone call to an attorney?

A: Not while I was at Pre-Trial Services.
I honestly don't recall.

(RT August 29, 1996, at p. 19.) It was only after trial counsel for Mr.
Perez established that Deputy Green was under no time pressure to
complete the chemical tests within 2 hours and phone calls would
have taken 5 to 10 minutes that Deputy Green suddenly recalled
offering Mr. Perez the opportunity to call an attorney. (RT August
29, 1996, at p. 21.) (Even so, Deputy Green's testimony was that Mr.
Perez wanted an attomey present and Deputy Green did not think that
Mr. Perez had the right to have an attorney present. Even by Deputy
Green's newly recovered memory, Mr. Perez's right to counsel was
denied.) Deputy Green subsequently lost his newly recovered
memory after the eVidentiary hearing, testifying at the first trial that
he gave Mr. Perez an opportunity to use the phone only by taking him
to jail:

Q. What opportunity did you give him at
any time to contact an attorney?

A. I informed him that phones were
available at pretrial services for him to
make a phone call if pretrial would
allow that.

lvi

(R.T. September 6, 1996, p. 72)

Given the previous inconsistencies in Deputy Green's
testimony, reports and interview, given the sudden motive to fabricate
upon being pinned down as to the lack of any time pressure, and
given Deputy Green's failure to recollect the crucial issue at any point
earlier in the proceeding, or during his interview or in his police
report, Deputy Green's deception of Judge Donfeld is readily
apparent. Had Mr. Perez been present at the evidentiary hearing, Mr.
Perez would have testified that, at no point, did Deputy Green ever
offer him the opportunity to make a phone call.

The right of a defendant charged with a felony to be
personally present in the courtroom at every stage of his trial
conducted is fundamental to our system of justice. "A leading
principle that pervades the entire law of criminal procedure is that,
after indictment found, nothing shall be done in the absence of the
prisoner." Lewis v. United States, 146 U.S. 370, 372, 13 S.Ct. 136,
137, 36 L.Ed. 1011 (1892). This principle has been constantly upheld
and continually reaffirmed. Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202,
28 L.Ed. 262 (1884); Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057,
25 L.Ed.2d 353 (1970). One of the most basic of the rights
guaranteed by the confrontation clause is the accused right to be
present at every stage of his trial. Lewis v. United States, supra. The
Supreme Court has also stated that a defendant "has a due process
right to be present in his own person whenever his presence has a
relation, reasonably substantial, to the fullness of his opportunity to
defend against the charge." Kentucky v. Stincer, 482 U.S. 730, 745,
107 S.Ct. 26, 58, 96 L.Ed.2d 631 (1987). The court in Stincer also
stated that a defendant is constitutionally "guaranteed the right to
present at any stage of the criminal proceeding that is critical to its
outcome if his presence would contribute to the fairness of the
procedure." Stincer, 482 U.S. at 745.

The right to be present at trial is protected by the due process
and confrontation clauses of the Sixth Amendment to the United
States Constitution and by article II, §§ 4 and 24 of the Arizona
Constitution. State v. Levato, 924 P.2d445, Ss Ariz. ——— (1996).
17 A.R.S. Rules of Crim.Proc., Rule 9.1, permits the inference that
a defendant is voluntarily absent from a proceeding, thus waiving his

lvii

ee

rights to confrontation and due process, if the defendant had personal
notice of the time of the proceeding, the right to be present at it, and
a warning that the proceeding would go forward in his or her absence.
The Ninth Circuit Court of Appeals has found that Rule 9.]
“comports with the requirement of a waiver of the defendant's
constitutional rights provided that the defendant is affording a hearing
to determine whether his absence was, in fact. voluntary." Brewer v.
Raines, 670 F.2d 117, 120 (9th Cir. 1982). The trial court must, if
asked, determine whether the defendant's absence was, in fact,
voluntary. State v. Sainz, Ae. __—_,« 94 Pd 474 (App.
1996).

In State v. Bishop, 139 Ariz. 567, 679 P.2d 1054 ( 1984), the
court remanded for a new competency hearing where the record was
insufficient to conclude that the defendant was aware of the nature of
the third and fourth days of his Rule 11 hearing when he refused
transportation from the jail to court. The new hearing was to be held
either in the defendant's presence or with his presence to have been
found properly and voluntarily waived. Mr. Perez similarly requests
that the evidentiary hearing in this matter be held in his presence as
he maintained constant contact with both his attorney and Pre-Trial
Services and yet never received notice that the hearing was being held
and cannot, therefore, be said to have waived his right to confront
Deputy Green and to be present to testify and to assist his attorney at
the hearing.

Respectfully submitted this 17th day of F ebruary,
1997.

AFFIDAVIT ATTACHED TO MOTION TO VACATE
JUDGEMENT/MOTION FOR NEW HEARING
MOTION FOR RELEASE PENDING APPEAL/MOTION TO
VACATE JUDGEMENT/REQUEST ee HEARING TO
DETERMINE VOLUNTARINESS OF ABSENCE FROM
EVIDENTIARY HEARING

I, Fermin C. Perez, upon my oath depose and state that:

l. Am the defendant in CR-52507.

viii

tl

I have, at all times, kept both Pre-Trial Services and the Law
Offices of Tamara Walters advised of my address and
telephone number, including voice mail.

5 I have personally appeared in the Pre-Trial services’ Office at
least once a week during the entire time that I have been
released to the custody of Pre-Trial Services. During August,
1996, I appeared in the Pretrial Services Office twice a week.

4. At no time did I receive notice of the evidentiary hearing held
August 29, 1996, from either Pre-Trial Services or from my
court appointed attorney. |

Had I been advised of that evidentiary hearing | would have
appeared at the hearing.

an

6. Had I appeared at the hearing, I would have testified that, at
no time, did Officer Green ever offer to allow me to use the
telephone.

7. Had I been informed of and appeared at the evidentiary
hearing, I would have also informed my defense attorney, for
purposes of further cross-examination of Officer green, that
I spent at least one hour in a holding cell at the Pima County
Jail after being transported there by Officer Green and before
bi\eing booked into the jail by Pre-Trial Services.

FURTHER AFFIANT SAYETH NOT.

DATED this 14th day of February, 1997.

FERMIN C. PEREZ

MOTION TO RECONSIDER

PROCEEDINGS
THE COURT: 52507, motion for
reconsideration.

MR. GATTO: Michael Gatto for the DUI team
for the State.

MS. WALTERS: Tamara Walters appearing for
Fermin Perez, out of custody, not present. I'l!

waive his presence for this hearing.

THE COURT: Okay. What -- I've sed your
motion, but what have you presented differently than what I
already heard?

-MS. WALTERS: Well, I believe that the

other -- my client didn~t testify at the motion
hearing and he did testify at trial. So he made
comments that you weren't -- didn't have in front
you at the time of the motion hearing that he had
asked for an attorney. Not that he specifically
requested an attorney to be present at the time of
testing, but he had made two requests to contact an
attorney.

And, once again, I think the testimony of

Deputy Green at the trial further substantiates my
position that he did not allow Mr. Perez any type of
reasonable opportunity to contact an attorney or
place a call to an attorney.

I think the motion hearing, irom my
impression in the court, Deputy Green made a statement out of the

“
Fa

Ix

blue, which was unexpected to me: He told Mr. Perez he could cail
an attorney.

And I had brought to the Court's attention that I believe that to be
just testimony that had

been created while he was on the stand, because it

hadn~~t come up in the police report, it hadn't come

up in a previous interview of Deputy Green, and once

again, from the review of the trial transcript, it did not come up
during the trial when he was asked

numerous times by Mr. Gatto and myself what

opportunities were given.

The only opportunity that he states that

he gave my client to contact an attorney was at
after he had taken him to the Pima County Jail, to
pretrial services. And he told him that my client
would have to contact the personnel at pretrial~and
ask to use a telephone. And Deputy Green had sat
there for at least 30 minutes filling out paperwork
at the jail, while my client was sitting in the

cell, and never made an opportunity -- never made any effort to
have my client have any contact with

the telephone.

And it's not -- you know, according to the

case law, the officer who's doing the investigation has to provide
the suspect or defendant with an opportunity to place a call, not
someone at pretrial services who has no interest in the case. So it
deprived him of his right to have any access to a

telephone.

He had driven by several pay phones.

And even at pretrial services, there was

still an hour and a half before the two-hour time frame would have
expired, so the officer testified there was absolutely no delay~~ in
the investigation

Ixi

Or Opportunity to make a call.

Now, the officer testified that my client

asked to have an attorney present during the test,

but it's just -- I mean, how is he supposed to have

an attorney present unless he calls an attorney? I mean, the officer
didn~~t even know he could get a search warrant to obtain blood.
so I believe the

officer was not aware of, you know, the rights that

a client has to have access to an attorney or

contact an attorney.

I think the officer -- my client said, "I

want an attorney present," and he got him into the car and was
taking him to get a blood test. So at
that time it wasn't a refusal. And my client again
asked to have an attorney present, and I guess the
second time the officer said that's a refusal. The
officer incorrectly deemed that to be a refusal,
because he didn't even let him make a phone call.
I just think it's an egregious violation
of my client's rights. And you know, there are
other cases that I cited, and the facts in those
are, you know -- these -- some of them, the client
was able to contact an attorney, and the court said,
Well, the officer didntt interfere because they used
a cell phone and offered a cell phone. And the
answering service was going, Call back, so there
were opportunities to make the call.
Here, he wasn't even taken to a phone
call -- to a phone to make one call. And then he
could have discussed with his attorney whether he
could have been present or whether he should take
he test.

And the officer also says, Well, you know

Ixii

if he asked for Harold Hyams, he's a personal injury [
lawyer, the officer is not in a position to decide

which attorney my client can contact. And there are

attorneys that have different areas of practice or

could give some advice or refer them to someone

else.

So the officer was jumping to conclusions, making inaccurate
assumptions, and deemed this to be a refusal. And as a result of
that, my client was not able to get his blood test, which he stated -]
mean, the officer said no, he didn't refuse to take

a blood test. He did want a blood test.- Even when

they passed TMC, my client said, Aren't you going to take me there
to get a blood test? It's very clear

my client wanted a blood test. And he wasn't given _ that
opportunity to get that or an independent blood test. He wasntt
informed of that.

And of course, he's booked in the jail andcouldn't have left to get a
blood test; therefore he

was deprived of exculpatory evidence, deprived of the opportunity
to present other evidence at trial

and get a fair trial. And the only remedy is for a

dismissal of the charge.

I mean, that -- when this is such an

egregious violation from the officer, and such an apparent
deprivation of his right to contact an

attorney, when there is no -- there is -- | mean, my

client does not refuse, and there was plenty of

time, that this charge must be dismissed.

So that's what I'm asking the Court to do.

THE COURT: Thank you.
Mr. Gatto, did you file a written

opposition?

Ixiii

— eS

MR. GATTO: No, Judge, | did not. The

motion hearing and the trial are totally separate

issues. I mean, at trial this information was

irrelevant. It's not lodged in the transcript that

Ms. Walters had prepared, but | lodged numerous objections to this
line of questioning. And |

didn't explore those issues on cross-examination

or actually, what would be redirect examination,

because of the fact that in a trial versus

suppression hearing, the issues are much different.

The testimony at the evidentiary hearing
that you presided over, Deputy Green says he offered a blood test,
and the defendant said yes, | want to

have a blood test. But I want to have an attorney.
And after informing the defendant he did not have a
right to have the attorney present at the blood

draw, but you can make contact, he did not. After
he was taken to pretrial services. the defendant was
offered a phone book and the Opportunity to use a
phone. Those were, what | believe, the dispositive
facts on the Court's ruling.

You didn't issue a minute entry stating

the factual and legal conclusions, but the evidence

at the prehearing -- when he -- when they got to

pretrial services and he was given an opportunity to use the phone,
he did not do so. And that's an

implicit waiver of his rights to gather this

evidence.

And I think that the distinctions between

the trial testimony and the evidentiary hearing,

from my standpoint, are defended by the fact that I didn't have the
same motivations to ask these types

of questions. I'm in a jury trial; I'm trying to

Ixiv

prove various elements that are completely different
from what's going on at the suppression hearing. That's why | didn't
go into this.

But even the testimony that she elicits

regarding her own client, she wants to cite him as authority for
what went on in the brief portions of

the transcript listed. He, a couple times, says he

can't remember. Yet he is crystal clear on what he

feels is dispositive to his case regarding the

suppression motion.

First thing is he can't recall -- this
is -- it looks like 125, but I don't have a page
because the motion isn't numbered, and then it

concludes another situation where he doesn't
remember. This is three years old, learly the
defendant -- he had admitted to drinking that

evening.

And in regards to the credibility issues,
you had an opportunity to evaluate Deputy Green's
testimony in person.

With that, I'-1] submit it for your
discretion.

THE COURT: Ms. Walters.

MS. WALTERS: Yes, your Honor, I believe

Mr. Gatto is confusing this case with another one
that he might have had when he stated that my client
said he didn't want a blood test. -And that is not

correct.

And Deputy Green in his testimony even

Ixv

stated that my client said -- my client never
refused a blood test or didn't want to take a blood
test.

And my client was not offered a telephone

book or a telephone at pretrial services. He was
merely told when pretrial services interviewed him,
to ask them about using a phone. But he was sitting
in his cell for at least 30 minutes while

Deputy Green was right there at the pretrial

services area, and he testified that he himself

never provided him with the phone or a phone book,
nor did pretrial services, because they had contact
with him after Deputy Green left. So I just want to clarify those
facts.

And you know, I believe that, you know,

the case law further substantiates my request to dismiss the case -
the charge against him, because

the officer -- if there was some ambiguity in my clientts request, it
should have been clarified by

the officer. And I_ mean -- and it could have been

clarified very easily by him being taken to a telephone and letting
him make a phone call. Five

minutes, when he has an hour and a half to go before~

the two hour period is expired, it's minimal effort on the officer.
And he didn't even do that.

And even a~t pretrial services, after he

said, "You've refused," he's still considering letting the guy make a
phone call. He still has an hour and a half to get a blood test, but he
makes no

effort to get the telephone to him or take him to a

phone. And I know that that is possible, because I've had other
cases where people have contacted the

officers from pretrial services. They may not have a private room,
but they do have a desk and a phone and a phone book. And that's

Ixvi

happened in the past with other cases.

So the officer just didn't want to give my client a right to contact an
attorney. And he also -- you know, if he advised my client that he
couldnt have an attorney present, he might have been misleading
him. He never said, "You have a right to make a telephone call, but
you don't have

the right to have him present."

So he didn't clarify that to my client, and that was misleading and
confusing to my client. And therefore, if my client is supposed to
know the Jaw more than the officer to say some magic words to
trigger the officer to say, "Oh, yeah, okay,” then

he's invoking {sis right.

He did say on two occasions that he wanted

to have an attorney, and the officer said, "You dontt have a right to
have an attorney present,” but he didntt sayt "You can contact him
by phone, and

here is a telephone." So it's just -- you know, the

officer just didntt do what he should have done.

THE COURT: Thank you.
I'm going to deny your motion to reconsider the motion to dismiss.
itss set for trial on Thursday?

MS. WALTERS: Yes.

MR. GATTO: Yes, Judge

THE COURT: Okay. I understand we have 25
cases backed up this week, so whether it actualiy
gets tried or not is up to the people on the 9th
floor, I

MS. WALTERS: Okay. I might, just for the Court's information --
Mr. Gatto, I have a witness

that's scheduled to come on the 20th, an expert

witness. And if the trial doesn't go this week, he

is not azailable for a rollover next week. So we'd

Ixvii

have to reschedule it for a later date and time that would be
available.

MR. GATTO: I don't know who-we take that up with, Judge, but
I've received a letter disclosing Mr. Palmer as an expert reference
this case.

THE COURT: Well, I would say why don't we do this: You should
know Wednesday afternoon what the likelihood is of your going to
trial. If you're not going to get in, why don—t you enter into a stip
for a new date and I'll sign it. And that will get it off of rocket
-well, at least get it off of the

rollover. So you can come up with a date.

MS. WALTERS: He's pretty busy until the
end of January or into February.

MR. GATTO: I believe we'll be able to
work something out.

THE COURT: Work it out, and that will cut
red tape for you.

MR. GATTO: All right.
THE COURT: Thank you.
(Proceedings concluded.)
CERTIFICATE
STATE OF ARIZONA )

) ss.

COUNTY OF PIMA

I, Cheryl Austin, do hereby certify

xviii

that as an Official Court Reporter for the Pima

County Superior Court, I reported the foregoing proceedings to the
best of my skill and ability; and

that the same was transcribed under my supervision

via computer-aided transcription: and that the

foregoing pages of typewritten matter are a true, correct, and
complete transcript of alLOthe

proceedings had as set forth in the title page

hereto.

CHERYL AUSTIN, CSR, RPR
CSR No. 10318 (CA)
Official Court Reporter

date
My Commission Expires:

January 31, 1998

DECEMBER 4, 1996, MOTION TO RECONSIDER/MOTION
TO DISMISS

COMES NOW the Defendant, by and through his counsel
undersigned, and respectfully moves this Court to dismiss the charges
now pending against Defendant because his constitutional right to
counsel was violated. Furthermore, this Court is requested to
reconsider its prior ruling denying Defendant's Motion to Suppress
Statements, Motion to Dismiss (Denied Counsel), and Motion to
Dismiss (No Independent Blood Test) and dismiss these
charges. These Motions are supported by the attached memorandum
of points and authorities and exhibit X.

RESPECTFULLY SUBMITTED this day of December, 1996.

TAMARA R. WALTERS

lxix

freee

SS ee eee —

Attorney for Defendant
MEMORANDUM OF POINTS AND AUTHORITIES FACTS:

On August 16, 1996, Defendant filed a Motion to Dismiss (No
Independent Blood Test) and Motion to Suppress Statements, Motion
to Dismiss (Denied Counsel) on the grounds that Defendant was
denied a reasonable opportunity to contact his attorney. A motion
hearing was held August 29, 1996, and both motions were denied. As
well as asking the Court to reconsider this ruling, Defendant is raising

a separate Motion to Dismiss for denial of counsel to cover all bases
thoroughly.

A review of the police report prepared by Deputy Greene (the
arresting officer with the Pima County Sheriff's Office), Deputy
Greene's testimony at both the motion hearing and the trial, and
Defendant's testimony at the trial, will clearly demonstrate that

Defendant's right to counsel was violated. justifying a dismissal of all
charges.

POLICE REPORT:

Defendant was stopped at 0058 hours on September 21, 1993 by
Deputy Greene. Defendant performed field sobriety tests and was
placed under arrest at 0125 hours. Miranda warnings were read at
0130 hours. According to the report, Defendant indicated that he did
not understand his warnings and would not waive his rights. He
stated, "I want an attorney right now. Harold Hyams," (OWS) and "I
want an attorney before I do any test, right now." (OWS). The officer
further reports, "After the tests were completed, I placed Perez under
arrest. I gave Perez a choice in chemical tests and he said "Blood".
(OWS). AB we were driving to the hospital, A/Perez insisted on
having an attorney preeent immediately.” A/Perez would.

not complete a test without one saying, "I don't trust you guys."
(OWS). A/Perez had also asked for an evaluator (wife, attorney, etc.)
to be present at the field sobriety test.

Deputy Greene stated that Defendant refused to take a blood test. He

Ixx

was taken directly to the Pima County Jail.

MOTIONS HEARING:

Deputy Greene testified that after he advised Defendant of his
Miranda warnings, and he made the statements set forth above in
Police Reports, he asked Defendant if he would submit to a chemical F
test (p. 12) at about 1:30 and he said blood. (p. 13).
Q And did you take him to the blood test?

A I put him in the vehicle and began to transport him

to the hospital. Mr. Perez then said -- quotes -- "I want an
attorney present while I do the test" -- unquote. (p. 13)

Q En route, did the defendant say he wanted to do a blood test?
A Yes, sir.

Q Also, he tells you he will not do the test unless he has an attorney
present; correct?

A Yes, sir. (p. 18)

Q After the defendant told you that he wanted an attorney present for
the test, what did you do?

A I advised him that he wasn't -- it's not his right to have an attorney
at the test, but he could call an attorney and talk to one, and he
adamantly wanted an attorney present during the test.

Q After that conversation, what did you do?

A I began to transport him to the Pima County Jail.

Q At any time post-arrest, did you offer the defendant an opportunity

[xxi

to make a phone call to an attorney?

A Not while I was at Pretrial Services. I honestly don't recail. (p. 18,
19)

Q When he asked -- okay. When he asked to have an attorney present
and you were on the way to the hospital, would it have delayed your
investigation if you would have allowed him jo make a phone call to
an attorney?

A I can't testify to that. I have no idea. I don't know how long the
phone call would have taken, if he would have had an attorney that he
wanted to talk to. He said Harold Hyam<, a personal injury attorCey.
I honestly don't know.

Q But you had time, didn't you, to take him to a phone

and let him make a phone call. I mean, the time wasn't running out
~ where it was no longer time for taking the blood sample?

A Are you trying to find out if I was pressed for time to get a
chemical test of his bodily substance?

Q Well, yeah, that was part of my question.

A I didn't see that as a problem, no.

Q So the time frame wasn't a problem to get the test?
A No.

Q But how about allowing him to make a phone call to try to contact
an attorney? Did you have sufficient time for that?

A Again, I don't know. I don't know if that would have delayed it to

the point where I would have had to be past that two hour time limit.
I have no idea.

[xxii

Q But it would have taken him five to ten minutes to make a few
phone calls?

A He could have stopped and made that determination at that point.
Q You didn't allow him that opportunity; is that correct?

A He wanted an attorney present. I offered him the attorney, to call an
attorney, or the opportunity to call an attorney. He wanted an attorney
present.

THE COURT: You did ask him if he wanted to make a phone call?
THE WITNESS: Yes, I did.

THE COURT: And at what point did you do that?

THE WITNESS: In the vehicle after he told me that he wanted an
attorney present during the chemical testing.

Q (By Ms. Walters) So it's now your testimony that you told him that
he could make a phone call?

A I advised him that he was not allowed to have an attorney present
during the chemical testing. I then told him he could make a phone
call to talk to an attorney, but he did not have the right to have an
attorney present.

Q Okay. But that's a change in your testimony. So now you're saying
that you told him he could make a phone call?

A I answered that before.
Q And is that in your police report?

A No.

Ixxili

Q It was -- did you mention that when we had our interview on
August 21, 1996?

A I don't think 80.

Q But now all of a sudden, you remember that you gave him or told
him he could make a phone call?

A Yes.

Q And did he say, "I'll make a phone call"? Did you give him any
opportunity, take him to a phone?

A No. He said, "I want an attorney present."
Q Did he specifically 6ay, "I don't want to make ia phone callt"
A No, he didn't.

Q And assuming his attorney could have been there at

the hospital and that he was at the hospital in a reasonable period of
time and not to delay the proceedings, it would have been possible to
have his attorney present; isn't that correct?

A I had been trained that it was not his right to have an attorney
present at the point of the chemical test. (p. 2023)

MS. WALTERS: Well, your Honor, I still am reviewing it, but on
page 40, when I'm asking him, I asked him, "And what opportunity
did you provide him to contact this attorney," and he replied, "Well,
at that point, I took him to jail because he said earlier while we were
in the vehicle, he said, 'I want an attorney before I take any tests of
my blood." So I asked him specifically, "What opportunity did you
provide him to contact an attorney" and he didn't make any statement
that he gave him an opportunity to make a phone call. (p. 29)

MS. WALTERS: 44. Excuse me.

Ixxiv

-- at the jail, and I asked him, "Did you go -- A, formally go through
the admin per se and implied consent affidavit?" "No."

"And then what opportunity did you give him to contact his attorney
when he was at Pretrial Services?" "I told him, ‘You're more than
welcome to use the phone here if the Pretrial Services people will let
you make a phone call."" And that's the first time that he’s ever
mentioned giving him an opportunity to make a phone call.

"And did you specifically provide him with a phone, he -you just left
that up to Pretrial Services?” "That's correct.”

His request to make a phone call. "Did you provide him with a phone
book or anything like that?” "No".

And then I went through the same questions I asked today, "Would
you offer him an opportunity to call the different places,” and he said,
" No," and never once until now did he state that he told him he could
make a phone call. (p. 30 31)

TRIAL TESTIMONY OF DEPUTY GREENE:

Q After arriving at the Pima County Jail, did you give the defendant
an opportunity to place a call to an attorney?

A I told him that phones were available at pretrial services if
personnel would let him use them.

Q At the jail, after informing the defendant of the availability of a
phone, did the defendant make any calls?

A No, he did not. (p. 29-30)

Q All right. And you had advised Mr. Perez as part of Miranda
warnings that he had the right to the presence of an attorney to assist

Ixxv

him prior to questioning; is that right?

A Correct.

Q And did he request an attorney after you read him those rights?
A He said, quote, | want an attorney right now, Harold Hyams,

unquote. Or words similar.

Q Did he at any other time request an attorney?

A Yes.

Q When was that?

A After I advised him that he was not able to have an attorney present

during the test he said, quote, I want an attorney before I do any test

right now, unquote, or words similar.

Q When did you advise him that he could not have an attorney
present during the test?

A After I advised him of the admin per se.

Q That was at the scene?

A I paraphrased the form at the scene.

Q Was that before you placed him in the patrol car?
A No, that was while he was in the patrol car.

Q You did not read him the form that you read to the jury, you just
paraphrased it?

A As described, yes.

Q When you advised him of his admin per se affidavit did he state

Ixxvi

that he would take a test?

A Yes.

Q Which test would he take?
A Blood.

Q Did he state that after you had advised him that he could not have
an attorney present?

A No.

Q Did he at any time specifically tell you that he was refusing to take
a blood test?

A No. (p. 63-65)

Q Deputy Greene, when we left off yesterday we were talking about
the refusal to take the blood test as you deemed it and the right to an
attorney. | am going to continue with my questioning on that. So to
repeat and bring us up to date, Mr. Perez requested an attorney; is that
correct?

A That's correct.

Q Any you were transporting him to El Dorado Hospital to get a
blood test after he agreed to take a blood test; is that correct?

A That's correct.

Q And how far did you get to, well, from where you were located on
the map which route did you take to the hospital?

A Would you like me to show you?

Q Yes, if you could approach.

Ixxvii

Pa a ee PE NR RN ET Ee eae

A I left the scene and I began to travel south on Craycroft, my
intention was to go eastbound on River, that has proven from
experience to be the quickest way to El Dorado Hospital.
Q And you are using a black marker?
A That's correct.

Q Where is El Dorado Hospital in relation to this map?

A El Dorado i8 over on Wilmot, off the map, actually.

Q If you could just maybe draw a little square with

hospital and then point an arrow as to which direction it would be.
Thank you. You can have a seat. And where were you in route to the
hospital when you decided that Mr. Perez had refused to take a blood

test?

A When Mr. Perez told me that he wanted an attorney present at the
test we were just north of Territory, I think.

Q And that's the second time that he had told you that he wanted an
attorney present; is that correct?

A Yes, I believe so.

Q So the first time he asked to have his attorney present you did not
deem that as a refusal, correct, because you were taking him to the
hospital?

A I instructed him that he had the opportunity to talk to an attorney
but not to have an attorney present.

Q Okay. Then you changed your mind near Territory and that's,
Territory is just south of Sunrise, is that correct?

A It is probably about a quarter of a mile south or maybe half a mile

IXxvili

south.
Q And then where did you take Mr. Perez?

A Directly to pretrial services at the Pima County adult detention
center.

Q And how did you get, which route did you travel?

A Craycroft to 22nd, I believe, 22nd to Santa Cruz, Santa Cruz south
to the Pima County Jail.

Q So you went south on Craycroft covering the same area where you
had travelled with Mr. Perez earlier past River?

A That's correct.

Q And you passed the Abco shopping center area?

A Yes, I did.

Q And that's where there is a telephone at Walgreen's?

A There's a telephone at Abco. I don't know if there is one at
Walgreen's.

Q Along your route did you pass other public telephones?
A Probably, there's several gas stations, Circle K's.

Q Did you pass TMC also?

A Yes.

Q And that's on Craycroft?

A Yes, it is. No, it is on Grant just west of Craycroft.

Ixxix

Q Did you stop at any of those telephones and allow Mr. Perez to
make a telephone call to his attorney?

A No.

Q What opportunity did you give him at any time to contact an
attorney?

A I informed him that phones were available at pretrial services for
him to make a phone call if pretrial would allow that.

Q And pretrial services is located at the Pima County jail; is that
correct?

A That's correct.
Q Had Mr. Perez been booked into the jail at that point?

MR. GATTO: Objection, irrelevant. THE WITNESS: Not at that
point, no. THE COURT: No, I will allow the answer to stand. MS.
WALTERS:

Q Did you offer a telephone to him at pretrial services or make a
phone available?

A Physically taking a phone to him?
Q Or take him to a phone?

A No, there was no phone that reached one of the cells so I couldn't
have done that.

Q Could you have taken him out of a cell and taken him to a phone?
A If he had requested it, yes.

Q But you did not do that?

Ixxx

A No, I didn't. (p. 69-73)

Q What opportunity had you given him to this point to contact an
attorney?

A As I said when we got to pretrial services I told him that a phone
was available if pretrial services personnel would allow him to use
that phone.

Q Was that before you read him this affidavit?

A As soon as | put him in his holding cell.

Q Did you contact pretrial services to make any arrangement for them
to get him a phone?

A Pretrial services conducts an interview with each person we take in
there. I'm assuming that Mr. Perez could have asked for a phone
during that interview.

Q Were they interviewing him prior to you reading this form?

A No.

Q So therefore he didn't have an opportunity to request a phone from
them first; is that correct?

A No. (p. 79)

Q How long did you stay at pretrial services after you brought the
defendant there?

A Probably 30 minutes.

Q And during that time were you doing paperwork regarding this
investigation?

Ixxxi

A Yes, I was. (p. 82-83)
TRIAL TESTIMONY OF DEFENDANT:

A The second time I asked for an attorney was after he arrested me.
I said I would like to contact an attorney.

Q Was that before or after he read you your Miranda warnings?
A That was, I can't recall, ma'am.

Q When you asked for an attorney do you recall the specific words
that were used?

A Yes.
Q What were those?
A I would like to contact an attorney.

Q Did you insist that you have an attorney be preAent
with you?

A I did not.

Q Did you insist that you have an attorney be present right now?
A I did not.

Q Did you at any other time ask for the assistance of an attorney?
A I did not.

Q So only twice you asked?

A Those two times.

IXxXii

Lc Ry AHR eee senting con nape > im
Nae ce ey ep oT oe

Q Do you recall the officer advising you that you did not have the
right to have an attorney present?

A Could you ask that again?

Q Do you recall the officer advising you that you did not have the
right to have an attorney present?

A He never said that.

Q Did the officer at any time tell you that you could not have an
attorney?

A I told the officer I wanted to contact an attorney. He put me in the
car and I was under the understanding that I was going to contact an
attorney. (p. 29-30)

Q Did you agree to take the blood test prior to you getting into the
car?

A Yes.

Q And after you got into the car, what was your impression as to
where you were going to?

A I thought we were going to TMC.

Q Did you at any time change your mind and refuse to take a blood
test?

A No, I wanted a blood test.
Q Did you ask for a blood test at another point after the first time?

A Only after we passed the hospital, I said am I not going to take a
blood test, that's the only time.

Ixxxili

a

Q When you say you passed the hospital?

A We passed TMC, Tucson Medical Center. I toid the officer, am I
not going to take a blood test.

Q Were you taken to TMC for a blood test?
A No, he took me right to the jail.

( Did the officer advise you or tell you that you were not going to get
a blood test?

A He told me I refused.
Q Had you refused to take a blood test?

A Absolutely not. It is the only thing that would prove my innocence.
(p. 32-33)

Q Were you given an opportunity to make a telephone call to an
attorney?

A No.

Q At any time during your contact with Deputy Greene were you
given an opportunity to have a phone call?

A Never.
Q When you arrived at the jail, were you given an Opportunity to call
an attorney by Pretrial Services?

A Never.

Q Do you remember the officer telling you that you would have to
make arrangements for the phone call through Pretrial Services?

A I don't recall. (s. 34)

Ixxxiv

LAW:

When an accused requests counsel, the request must be scrupulously
honored. Edwards v. Arizona, 4S1 U.S. 477 (1981); Rhode Island v.
Innis, 446 U.S. 291 (1980); State v. Finehout, 136 Ariz. 226 (1983).
In fact, the Supreme Court has stated:

If the individual states that he wants an attorney, the interrogation
must cease until an attorney i8 preAent. At that time, the individual
must have an opportunity to confer with the attorney and to have him
preRent during any subsequent questioning. If the individual cannot
obtain an attorney and he indicates that he wants one before speaking
to police, they must respect his decision to remain silent. Finehout,
supra, at 230 (quoting Miranda v. Arizona, 384 U.S. 436 at 474
(1996)).

The appropriate remedy is dismissal of all charges. Due to the officers
actions Defendant was prevented from obta

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1516%3A2. Public record. Not legal advice.