IN THE 

ARIZONA COURT OF APPEALS DIVISION ONE

MICHAEL JIMENEZ, Petitioner, 

v.

THE HONORABLE HARRIETT CHAVEZ, Judge of the SUPERIOR 

COURT OF THE STATE OF ARIZONA, in and for the County of 

MARICOPA, Respondent Judge, 

STATE OF ARIZONA ex rel. WILLIAM G. MONTGOMERY, Maricopa 

County Attorney, Real Party in Interest. 

No. 1 CA-SA 13-0299 

Petition for Special Action from the Superior Court in Maricopa County 

No. CR2012-160146-001 DT 

The Honorable Harriett Chavez, Judge 

JURISDICTION ACCEPTED; RELIEF GRANTED 

COUNSEL 

Maricopa County Public Defender’s Office, Phoenix 

By Richard J. Parker 

Counsel for Petitioner 

Maricopa County Attorney’s Office, Phoenix 

By Susan L. Luder 

Counsel for Real Party in Interest
JIMENEZ v. HON. CHAVEZ/STATE 

Opinion of the Court 

2 

OPINION 

Presiding Judge Peter B. Swann delivered the opinion of the Court, in 

which Judge Patricia K. Norris and Judge Kenton D. Jones joined. 

S W A N N, Judge: 

¶1 Michael Jimenez petitions for special action relief from the 

trial court’s denial of his motion to preclude evidence untimely disclosed 

by the state. Jimenez contends that the court’s failure to preclude the 

evidence forced him to request a continuance that extended trial beyond 

the Rule 8 speedy-trial deadline, to enable him to prepare his defense. We 

accept jurisdiction and grant relief. We hold that when the state delays 

disclosure of inculpatory evidence in violation of Ariz. R. Crim. P. 15.6, a 

continuance that delays trial beyond a defendant’s last day under Rule 8.2 

is an improper sanction under Rule 15.7. 

FACTS AND PROCEDURAL HISTORY 

¶2 In December 2012, the state indicted Jimenez on charges 

stemming from an incident the previous month. All of the physical 

evidence was impounded on the day of the incident. The state requested 

DNA analysis of the evidence in February 2013 and disclosed the request 

in March. During two settlement conferences held between March and 

June the state informed Jimenez that the results of the DNA analysis were 

forthcoming. 

¶3 On June 11, the state informed defense counsel that it was 

going to move to continue the case because of a trial conflict or, if denied, 

move to dismiss. On June 13, the crime laboratory informed the state that 

the DNA analysis had been assigned to a criminalist on June 7 and that it 

would be completed by July 2. On June 17, the state told defense counsel 

that it had “heard that [the crime laboratory] may get the DNA analysis 

done soon,” but reiterated that it did not anticipate going to trial as 

scheduled in July due to a trial conflict. On June 19, the state learned from 

the crime laboratory that the DNA analysis would be ready by June 28, 

but it did not immediately notify defense counsel or the court of this fact. 

¶4 On June 25, both parties announced “ready for trial” at the 

final trial management conference and the court ordered trial set for July 

2. At that time, Jimenez’s last day under Rule 8 was August 2. 
JIMENEZ v. HON. CHAVEZ/STATE 

Opinion of the Court 

3 

¶5 On July 1, the day before trial was scheduled to begin, the 

state disclosed inculpatory DNA evidence, having first apprised defense 

counsel via e-mail that “today we are disclosing the DNA results that 

were done on Friday [June 28] . . . [and] plan on filing a motion to 

continue this morning [due to a trial conflict].” 

¶6 On July 2, the court granted the state’s motion to continue 

based on a trial conflict, scheduled a status conference for July 29 and reset 

Jimenez’s last day from August 2 to August 9. Jimenez made an oral 

motion to preclude the new DNA evidence on grounds that it was 

untimely disclosed, a motion that the trial judge instructed him to address 

with the case management judge. On July 11, the state proceeded to 

disclose additional evidence related to ballistics testing. 

¶7 On July 29, Jimenez filed a written motion setting forth his 

arguments for preclusion. The court excluded time until August 16 to 

allow the parties to brief the issue and reset Jimenez’s last day from 

August 9 to August 27. 

¶8 On August 16, the court held oral argument on Jimenez’s 

motion to preclude. Jimenez argued that preclusion of the DNA evidence 

was the only appropriate sanction for the alleged disclosure violation 

because, as the court summarized his argument, “the late disclosure will 

result in a Rule 8 speedy trial violation as the matter will need to be reset 

so the defense can review, analyze and consider how to handle the newly 

discovered evidence.” Defense counsel argued: 

[B]ased on the scientific nature of this evidence and how 

extensive it is, there’s no way we can review it, hire experts, 

review what their experts are saying, talk to their experts, 

and be prepared for trial in an adequate time within his last 

day. 

[Jimenez] does have the right to be tried by August 

27th. . . . The position that the State is putting the defense in 

is having the defense ask the Court for a continuance in light 

of [the state’s] late disclosure when his right to a speedy trial 

would be violated by any further continuances outside of an 

agreement by the defense, which Mr. Jimenez does not agree 

to. 

The court excluded time until September 13 to take the matter under 

advisement and reset Jimenez’s last day from August 27 to September 24. 

Jimenez objected to the court’s finding that the trial delay was occasioned 
JIMENEZ v. HON. CHAVEZ/STATE 

Opinion of the Court 

4 

by his motion to preclude, arguing that the root of the delay was the 

state’s untimely disclosure that in turn necessitated the defense motion. 

¶9 On August 27, the court ruled that the state had “failed to 

comply with [Rule] 15.6(d) and (c) by not filing a motion supported by an 

affidavit with the Court requesting leave to extend time for disclosure and 

to use the material or information.” The court, however, denied Jimenez’s 

motion to preclude. The court found that the state had not acted in bad 

faith because it had requested DNA analysis shortly after the indictment 

and, despite failing to comply with Rule 15.6, had kept Jimenez apprised 

that DNA analysis was in progress and expected to be completed before 

trial. According to the court, “[a]lthough the Defense was surprised by 

the results disclosed the night before trial, there was no surprise that the 

results would be disclosed once received.” The court reasoned that 

preclusion was too severe a sanction absent a finding of bad faith or lack 

of due diligence, that “[t]he sanction of dismissal would only result in 

further delay as the State could refile charges [and that t]he sanction to 

hold a party in contempt is not appropriate where there is a lack of bad 

faith.” Ultimately, the court decided that “[t]he only appropriate sanction 

would be a continuance” and “[i]f the defendant wishe[d] to proceed 

within the last day [September 24] the matter c[ould] be set to comply.” 

¶10 On August 28, the court held a status conference, at which it 

found that “extraordinary circumstances exist and that a delay is 

indispensable” to the interests of justice, scheduled a status conference for 

October 1 and reset Jimenez’s last day from September 24 to November 1. 

¶11 On September 26, Jimenez moved for reconsideration of his 

motion to preclude. He emphasized that the untimely disclosure “placed 

[him] in a position where he had to choose between two constitutional 

rights, his right to speedy trial [and his right to] present a complete 

defense,” and repeated his argument that “the only proper remedy in that 

situation is to preclude the evidence.” 

¶12 On October 18, the court heard arguments on Jimenez’s 

motion for reconsideration. Defense counsel explained that it would take 

the defense at least six weeks to process the DNA evidence and determine 

whether it should conduct an independent analysis. The court 

reconsidered its initial ruling and found that 

there was a lack of diligence in seeking the DNA testing and 

that even though it may have initially been requested in like 
JIMENEZ v. HON. CHAVEZ/STATE 

Opinion of the Court 

5 

around January, it wasn’t actually assigned until June 7th, 

less than a week -- less than a month before the trial date. 

The Court was advised previously that [the delay] 

was due to backlog but the notes and everything that were 

submitted to this court do not reflect backlog. It reflects a 

breakdown in communication. The State did not comply 

with Rule 15(e) by not -- or .6(e) by not submitting a notice to 

the Court with the appropriate affidavit explaining that 

delay in the -- getting this critical evidence. 

Nevertheless, the court confirmed its previous ruling that the state had 

not acted in bad faith, and ultimately affirmed the denial of the motion to 

preclude. 

¶13 In ruling on the motion for reconsideration, the court 

“balance[d] going forward on the merits of the case against the 

defendant’s due process rights to his speedy trial.” It also considered the 

critical nature of the evidence, which the state had described as 

indispensable to its case. The court reasoned that 

as far as the defendant’s prejudice, if it’s a violation of his 

speedy trial rights, he can go forward with his trial but he 

would give up the right to complete -- do a complete 

preparation as to this late disclosed evidence. But that’s his 

choice. If he chooses not to investigate that issue and invoke 

his speedy trial right, we will go forward without that. 

Otherwise, a continuance still remains the appropriate 

sanction in order to be fair, if that’s what his choice is. 

So I’m going to deny the request to preclude the DNA 

evidence on that basis. And the defendant can make a 

decision on if he wants me to set the trial, the matter for trial, 

or if [he] wants to use more time to prepare. 

Accordingly, the court granted Jimenez’s request for a continuance, 

excluded time until the next scheduled status conference on November 18 

and reset the last day from November 1 to December 2. This special 

action followed. 

JURISDICTION AND STANDARD OF REVIEW 

¶14 We accept jurisdiction because this special action presents a 

purely legal issue and involves a matter of statewide importance, for 
JIMENEZ v. HON. CHAVEZ/STATE 

Opinion of the Court 

6 

which Jimenez does not have an equally plain, speedy, and adequate 

remedy by appeal. See Ariz. R.P. Spec. Act. 1(a); State ex rel. Pennartz v. 

Olcavage, 200 Ariz. 582, 585, ¶ 8, 30 P.3d 649, 652 (App. 2001). 

¶15 We will not disturb a trial court’s decision to impose 

sanctions for a disclosure violation absent a clear abuse of discretion. State 

v. Hill, 174 Ariz. 313, 325, 848 P.2d 1375, 1387 (1993). But “an error of law 

committed in the process of reaching [a] discretionary conclusion” 

constitutes an abuse of discretion. Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 

434, 456, 652 P.2d 507, 529 (1982); accord State ex rel. Thomas v. Newell, 221 

Ariz. 112, 114, ¶ 6, 210 P.3d 1283, 1285 (App. 2009) (“We will not reverse a 

disclosure sanction unless it is legally incorrect or unsupported by the 

facts.”). 

DISCUSSION 

¶16 The state violated Rule 15.6 by disclosing inculpatory DNA 

evidence on the eve of trial.1 The issue before us is whether the court 

abused its discretion by denying Jimenez’s motion to preclude the 

untimely disclosed evidence and finding that the appropriate sanction 

was a continuance. 

¶17 When a party fails to disclose evidence in compliance with 

Rule 15.6, the court may impose “any sanction it finds appropriate.” Ariz. 

R. Crim. P. 15.7(a). In deciding whether and how to sanction the offering 

party for a discovery violation, the court should consider (1) the 

importance of the evidence; (2) the surprise or prejudice to the opposing 

party; (3) whether the violation was motivated by bad faith; and (4) any 

other relevant factors. State v. Smith, 140 Ariz. 355, 359, 681 P.2d 1374, 

1378 (1984); see also Ariz. R. Crim. P. 15.7(a) (“All orders imposing 

sanctions shall take into account the significance of the information not 

timely disclosed, the impact of the sanction on the party and the victim 

and the stage of the proceedings at which the disclosure is ultimately 

made.”). 

¶18 Because discovery rules “are designed to implement, and 

not to impede, the fair and speedy determination of cases,” the court 

should seek to apply sanctions that affect the evidence and the merits of 

 

1 Indeed, during oral argument before this court the state repeatedly 

conceded that it had violated Rule 15.6 and that sanctions were warranted 

under Rule 15.7. 
JIMENEZ v. HON. CHAVEZ/STATE 

Opinion of the Court 

7 

the case as little as possible. Smith, 140 Ariz. at 359, 681 P.2d at 1378 

(citation omitted). Preclusion is an appropriate remedy only if no less 

stringent sanctions will suffice. State v. Cota, 229 Ariz. 136, 149, ¶ 59, 272 

P.3d 1027, 1040 (2012); State v. Smith, 123 Ariz. 243, 252, 599 P.2d 199, 208 

(1979) (“Prohibiting the calling of a witness should be invoked only in 

those cases where other less stringent sanctions are not applicable to effect 

the ends of justice.”). However, “a discovery sanction should be 

proportionate to the harm caused. And the sanction should cure that 

harm to the maximum practicable extent.” State v. Krone, 182 Ariz. 319, 

322, 897 P.2d 621, 624 (1995). 

¶19 In Krone, the defendant moved for a continuance or 

preclusion of a videotape that the state disclosed a few days before trial. 

182 Ariz. at 320, 897 P.2d at 622. Our supreme court held that the trial 

court erred by denying both of the requested sanctions, reasoning that 

either one would have cured the harm of the untimely disclosure but 

“[t]he action taken -- to tell the defendant to examine the tape between the 

start of trial and the day it was shown -- was not adequate.” Id. at 322-23, 

897 P.2d at 624-25. The court explained that “[a] continuance would either 

have caused a problem or it would not. If not, then it would have given 

the defense an opportunity to meet the force of the new exhibit. If a delay 

would have caused hardship, then the tape should have been precluded.” Id. at 

322, 897 P.2d at 624 (emphasis added). In State v. Moody, the court 

emphasized that its “determination that the video [in Krone] should have 

been precluded was based on the importance of that evidence: . . . without 

the [video], ‘there likely would have been no jury submissible case against 

Krone.’” 208 Ariz. 424, 454, ¶ 115, 94 P.3d 1119, 1149 (2004) (quoting 

Krone, 182 Ariz. at 322, 897 P.2d at 624). 

¶20 In this case, the untimely disclosed DNA evidence was 

undoubtedly important, but it was not essential to the state’s case. The 

state argued that it could not proceed to trial until the results were 

available and the trial court agreed that “[t]here is no question that the 

DNA evidence is critical evidence.” But when the state unconditionally 

confirms its readiness for trial, it represents to the court that it has the 

evidence it needs to proceed. We will not interpret such an avowal as 

containing an unspoken condition that undisclosed evidence not yet in the 

state’s possession is necessary for trial to proceed. Even if the state 

anticipated that a trial conflict would independently continue the case, it 

would not have been proper to affirm readiness for trial. We therefore 

interpret the state’s avowal to mean that it was prepared to proceed to 

trial on the scheduled date without the DNA evidence, and reject its more 

recent assertion that the evidence was essential to its case. 
JIMENEZ v. HON. CHAVEZ/STATE 

Opinion of the Court 

8 

¶21 There can also be little doubt that disclosure of such critical 

evidence less than 24 hours before trial constituted “surprise.” Although 

the state kept Jimenez apprised that it was conducting DNA analysis in 

the months before trial, Jimenez was certainly surprised by the disclosure 

of the inculpatory results on the eve of trial after the state had announced 

that it was ready for trial a week earlier. By June 19, the state knew that 

the DNA results would not be available until June 28, yet it did not inform 

Jimenez or the court of this fact at the June 25 trial management 

conference and instead announced ready. 

¶22 When the court denied Jimenez’s motion to preclude and 

found that a continuance was the only appropriate sanction, Jimenez was 

prejudiced because he was improperly forced to make a choice between 

(1) waiving his right to a speedy trial by requesting a continuance for a 

date beyond his last day, and (2) sacrificing his right to be represented by 

counsel with sufficient opportunity to prepare for trial. See Ariz. R. Crim. 

P. 8.2(a)(1) (in-custody defendant has right to be tried within 150 days of 

arraignment); Strickland v. Washington, 466 U.S. 668, 686 (1984) 

(recognizing defendants’ right to effective assistance of counsel). We have 

no reason to doubt defense counsel’s contention that the extensive and 

scientific nature of the state’s inculpatory DNA evidence made it 

impossible to proceed to trial within the time frame remaining of 

Jimenez’s speedy-trial window, and the state never contested that 

contention. Further, we agree with defense counsel’s argument that the 

trial delay was occasioned by the state’s untimely disclosure, not by 

Jimenez’s motion to preclude. Had the state not made an untimely 

disclosure, Jimenez would not have moved for preclusion and the court 

would not have needed to delay trial beyond the continuance it granted 

due to the state’s trial conflict. Lastly, even if the state did not operate in 

bad faith, it plainly did not act diligently. Had the state exercised 

diligence, it would have timely inquired into the status of its DNA 

analysis and either hastened to produce timely disclosure or sought an 

extension of the disclosure date under Rule 15.6(e). It did neither. 

¶23 In these circumstances, a continuance can hardly be 

considered a “sanction” against the state when it gave the state exactly 

what it sought and forced Jimenez to forgo his right to a speedy trial. 

Indeed, if Rule 8 is to have any meaning at all, a “sanction” against the 

state cannot ordinarily work to deprive the defendant of speedy-trial 

rights. In this case, the trial delay caused by granting a continuance 

constituted a hardship to Jimenez sufficient to justify preclusion. See 

Krone, 182 Ariz. at 322, 897 P.2d at 624. We therefore hold that granting a 

continuance under Rule 15.7 was an improper sanction for the state’s 
JIMENEZ v. HON. CHAVEZ/STATE 

Opinion of the Court 

9 

untimely disclosure of inculpatory evidence in violation of Rule 15.6, 

because the continuance delayed trial beyond Jimenez’s last day under 

Rule 8.2. In view of the court’s rejection of dismissal as a sanction, 

preclusion was the only appropriate sanction because it was the only 

punishment that fit the wrongdoing. Cf. State v. Tucker, 133 Ariz. 304, 309, 

651 P.2d 359, 364 (1982) (“[T]he state’s violation of appellant’s right to a 

speedy trial was not minor. If we are to preserve the efficacy of the right 

to a speedy trial in Arizona, we must reverse the conviction and dismiss 

the prosecution with prejudice when presented with facts such as those in 

the instant case.”). 

CONCLUSION 

¶24 For the foregoing reasons, we reverse the trial court’s orders 

denying Jimenez’s motion to preclude the untimely disclosed evidence 

and remand for further proceedings consistent with this opinion.