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State v. Secord5/3/2004
A jury found appellant David Douglas Secord guilty of aggravated driving under the influence of an intoxicant (DUI) while his driver's license was suspended, and the trial court placed him on five years' probation. On appeal, Secord argues the trial court erred in several evidentiary rulings and in denying his motion to compel the state to reinstate a plea offer. Because we conclude the state may, in appropriate circumstances, properly condition a plea on a defendant's foregoing disclosure of nonexculpatory evidence, and because Secord's evidentiary challenges lack merit, we affirm.
Facts and Procedural Background
2 On September 22, 1998, Deputy Dawn Barkman stopped a vehicle for exceeding the speed limit and driving briefly onto the dirt shoulder of a road. When Barkman approached the driver, Secord, she smelled an intoxicant near the driver's window. Deputies Woolridge and Hill arrived at the scene and investigated whether Secord had been driving while under the influence of alcohol. During that investigation, Hill conducted three field sobriety tests, including a horizontal gaze nystagmus (HGN) test, a "one-leg stand" test, and a "walk-and-turn" test. Hill observed Secord's gait, appearance, and speech as he performed the tests. Hill also questioned Secord about his consumption of intoxicants. At the end of the investigation, Hill wrote a report about his observations, noting that he had used a video camera to record his investigation.
**590 *520 3 The state indicted Secord on one count each of aggravated DUI and aggravated driving with an alcohol concentration (AC) level of .10 or more, class four felonies. [FN1] The state later offered to permit Secord to plead guilty to endangerment, a class six felony, and DUI with one prior conviction, a class one misdemeanor. Defense counsel requested that he be provided the police videotape before advising Secord whether he should accept the offer. In response to that request, the state withdrew the plea offer, provided a copy of the videotape to Secord, and transferred the case to a "trial team."
FN1. The latter charge was ultimately dismissed at trial because a retest of Secord's blood sample resulted in an AC of .09.
4 Secord nevertheless filed with the trial court a request for a change-of-plea hearing, saying he wanted to accept the plea offer and noting the state might oppose the request because he had asked for and had received a copy of the videotape. He argued he was "entitled to review th[e] videotape" under State v. Draper, 162 Ariz. 433, 784 P.2d 259 (1989). [FN2] The state, indeed, opposed Secord's request to accept the plea offer but offered him a similar agreement that would have required him to serve more time in jail. Following a hearing, the trial court rejected Secord's argument that he had possessed a due process right to review the videotape before deciding whether to accept the original plea offer. [FN3] Secord declined the second plea offer, and a jury later found him guilty.
FN2. In Draper, the supreme court addressed whether the state had violated the defendant's right to due process by conditioning a plea offer on the defendant's waiver of his right to certain disclosure. In anchoring his claim on Draper, Secord sufficiently presented his due process claim to the trial court and, therefore, contrary to the state's argument, did not waive it on appeal.
FN3. We note that Secord did not seek special action relief from this interlocutory decision, instead choosing to proceed to trial. Although it
would have been preferable for Secord to raise the issue by special action, we do not address whether his failure to do so waived the issue on appeal, neither side having briefed the matter. See State v. Espinosa, 200 Ariz. 503, 29 P.3d 27
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