State v. Whelan6/17/2004
ne if the trial judge in the second proceeding was bound by the decision in the earlier proceeding. Therefore, we must address the merits of Defendant's claim.
FN3. The blood test showed an alcohol content of 0.071. At trial, and extrapolating from that result, one of the State's witnesses testified that Defendant's blood alcohol content within an hour of his arrest would have been 0.104.
*1014 1. Law of the Case and Rule 16.1(d)
8 As an initial matter we note that this issue does not implicate the doctrine of the law of the case. " 'Law of the case' concerns the practice of refusing to reopen questions previously decided in the same case by the same court or a higher appellate court." Davis v. Davis, 195 Ariz. 158, 162, 13, 985 P.2d 643, 647 (App.1999) (quoting Kadish v. Ariz. State Land Dep't, 177 Ariz. 322, 327, 868 P.2d 335, 340 (App.1993)) (emphasis added). The doctrine of law of the case is a rule of procedure rather than substance, and "does not deprive a judge of the power to change his or her own nonfinal rulings or the nonfinal rulings of another judge of that same court sitting on the same case simply because the question was ruled on at an earlier stage." Id. at 162, 14, 985 P.2d at 647 (emphasis added; citation omitted). Thus, the doctrine applies in the context of the same case throughout its entire duration, including any appeals, remands and appeals after remand. See, e.g., State v. King, 180 Ariz. 268, 279, 883 P.2d 1024, 1035 (1994) ("At the trial court level, the doctrine of the law of the case is 'merely a practice that protects the ability of the court to build to its final judgment by cumulative rulings, with reconsideration or review postponed until after the judgment is entered.' " (quoting 1B James W. Moore, MOORE'S FEDERAL PRACTICE 0.404[4.1] (2d ed.1992)); State v. Waldrip, 111 Ariz. 516, 518, 533 P.2d 1151, 1153 (1975) (decision of an appeals court in a prior appeal of the same case cannot be raised again in a subsequent appeal).
9 Rule 16.1(d), like the law of the case doctrine, is procedural and applies in the setting of the same case. As Rule 16.1(a) expressly provides, "[t]his rule shall govern the procedure to be followed in cases between arraignment and trial." (Emphasis added.) Rule 16.1(d) expressly allows for the court in that setting to reconsider pre-trial rulings "for good cause." [FN4] See King, 180 Ariz. at 278-79, 883 P.2d at 1034-35 (explaining the law of the case doctrine and referencing Rule 16.1(d)).
FN4. Rule 16.1(d) provides in full as follows: "Except for good cause, or as otherwise provided by these rules, an issue previously determined by the court shall not be reconsidered."
10 In this matter, although the underlying facts in each prosecution were identical and the charges were the same, there were two separate actions. Neither the law of the case doctrine nor Rule 16.1(d) directly applies in this setting. We realize that "law of the case" is the term utilized by this court in State v. Nahee, 155 Ariz. 114, 115, 745 P.2d 172, 173 (App.1987), relied upon by the dissent. Nahee may have involved a subsequent proceeding, rather than the same proceeding. See id. ("the charges were reinstated"). However, given the precedents we have set forth above, we do not believe Nahee's utilization of that term to be well-chosen. The proper question is not whether the law of the case doctrine or Rule 16.1(d) precludes reconsideration, but whether the principles of res judicata, and more specifically, the subsidiary doctrine of collateral estoppel (or "issue preclusion") precludes the trial court from considering afresh, in a subsequent proceeding, the suppression order entered in the earlier proceeding.
11 Before turning to that question, however,
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