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State v. Secord5/3/2004
e court as follows: "I made the decision to allow people who're willing to take responsibility for their actions early on to be in a better position than people who want to review all of their possible options to escape liability for something that they're guilty of." Although the state is certainly entitled to reward defendants who demonstrate acceptance of responsibility with more favorable plea offers, that rationale does not apply in the context of the specific situation here. Secord had filed no motions nor engaged in any burdensome "litigation" before the state withdrew the plea offer. He had merely asked to examine evidence that should have been disclosed to him, even in the absence of a specific request, before the early plea offer deadline. [FN11] See former Ariz. R.Crim. P. 15.1(a)(1), (2), and (4), 202 Ariz. XLIX (2002). Notably, Secord's alcohol concentration suggested that his impairment, if he was impaired, might have been subtle. [FN12] For this reason, Secord's request to examine the videotape could have reflected an earnest desire to determine whether he had actually committed the crime with which he was charged rather than a cynical effort to avoid accepting responsibility for his actions.
FN11. Former rule 15.1(a)(1), (2), and (4), Ariz. R.Crim. P., 16A A.R.S., required the state to disclose the videotape in question within ten days of Secord's arraignment. Secord was thus entitled to the information on May 10, 1999. He requested the disclosure from the state before accepting the plea offer on or about May 18.
FN12. A blood test administered within an hour of his driving showed Secord had an alcohol concentration of .09, a result within the margin of error of .08. Either number was below the alcohol concentration required to activate the legal presumption of impairment to the slightest degree at the time, .10. See former A.R.S. § 28-1381(H)(3), 1997 Ariz. Sess. Laws, ch. 1, § 106. According to the state's own expert, .08 is the first threshold at which scientists will conclude that a person is necessarily impaired "to the slightest degree." Thus, Secord's blood alcohol test placed his alcohol concentration near the concentration at which scientists
consider the boundaries of a person's impairment to the slightest degree. Moreover, defense counsel elicited from the expert that Secord's actual alcohol concentration at the time of driving might have been significantly less than the result obtained some fifty minutes later, depending on his drinking sequence and absorption rate.
30 When the prosecutor equated the mere request for information with a lack of acceptance of responsibility, he essentially conditioned his assessment of Secord's worthiness to receive a plea offer on his ignorance of the entire case against him. This **597 *527 condition undermined the core requisite of due process in the context of a guilty plea--that a defendant's waiver of the right to trial must be made knowingly and intelligently. See Brady, 397 U.S. at 748, 90 S.Ct. at 1469, 25 L.Ed.2d at 756.
31 Although the state articulated no substantial public policy grounds for conditioning its plea offer on Secord's waiver of disclosure, Secord possessed a substantial need to examine the videotape in order to intelligently assess whether to accept the state's plea offer. In evaluating Secord's need for this disclosure, we must be cognizant of circumstances that can render a particular piece of evidence superfluous to the decision whether to accept a plea offer. See Draper, 162 Ariz. at 438, 784 P.2d at 264 (no due process violation when defendant has sufficient access to state's evidence to assess legal situation and when other evidence overwhelmingly shows guilt); see also Ruiz, 536 U.S. at 630, 122 S.Ct. at 2456, 153 L
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