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State v. Whelan6/17/2004
suppression order presented a "valid and final decision on the merits," Garcia, 195 Ariz. at 514, 9, 990 P.2d at 1073, the exception under § 28(2) would prevent application of collateral estoppel in this case.
3. State v. Nahee
18 Defendant, and our dissenting colleague, rely upon State v. Nahee to reach a contrary result. In that case, the defendant, a member of the Yavapai Apache Tribe, was charged with four felony offenses. Nahee, 155 Ariz. at 115, 745 P.2d at 173. The defendant moved to dismiss the prosecution on the ground that under tribal law, the State of Arizona did not have personal jurisdiction over him because a tribal regulation required that the defendant be released to tribal authorities and an officer with the Bureau of Indian Affairs had turned him over to the Clarkdale, Arizona police. The court granted the motion. Id. The defendant later voluntarily submitted to the jurisdiction of the court "and the charges were reinstated." Id. In the second proceeding, the defendant moved for the suppression of evidence. There was no suppression hearing in the first proceeding. Indeed, there was no motion to suppress filed in the first proceeding.
19 The basis for the motion to suppress in the second proceeding was that the exclusionary rule required suppression due to the violation of the tribal regulation. Id. The issue was "whether the mistakes of the tribal authorities are visited upon the state prosecution in the form of the invocation of the exclusionary rule." Id. at 114, 745 P.2d at 172. We rejected this argument and found the evidence admissible.
20 As a prelude to its analysis, the Nahee court noted that "because the State failed to appeal [the trial court's] order finding that the State of Arizona lacked jurisdiction ... this ruling is the law of the case and binding on the State in this appeal." Id. at 115, 745 P.2d at 173. The Nahee court made this statement while also stating in a footnote that the earlier decision on the tribal regulation "[i]n fact ... was erroneous." Id. at 115 n. 2, 745 P.2d at 173 n. 2. This is the portion of the case upon which Defendant and the dissent rely.
*1017 21 As noted earlier, if we consider Nahee to deal with a subsequent proceeding, it used "law of the case" language when it should have referenced "collateral estoppel." Supra 9, 10. We consider the case here as though it had used the proper terminology.
22 In our view, Nahee is quite clearly distinguishable. First, the order at issue in Nahee was the order of dismissal itself; it was not an interlocutory order. The order at issue here, a suppression order, was an interlocutory order that was subject to appeal. This distinction presents a completely different analysis as to whether there is a "final decision" for purposes of collateral estoppel. This is because an interlocutory order does not resolve a matter on the merits and may or may not be essential to the judgment. See Garcia, 195 Ariz. at 514, 10, 990 P.2d at 1073 (when determining whether to apply collateral estoppel to a ruling on a motion in limine, "[w]hether a ruling is essential must be determined on a case-by-case basis"); see also supra 14. Nahee neither mentioned nor addressed the considerable issue as to whether an interlocutory evidentiary ruling, subject to appeal, is a final decision for purposes of collateral estoppel analysis. The issue was not present.
23 Second, in Nahee there was no intervening change in the law. We do not address here the issue of whether an erroneous determination in a prior decision (without an intervening change in the law) qualifies for collateral estoppel. [FN7] To the extent Nahee rules or decides any issue in this regard, it is that an erroneous determination, with no intervening change in facts or
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