State v. Malerba

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

MICHAEL EDWARD MALERBA, Appellant.

No. 1 CA-CR 24-0305
FILED 03-06-2025

Appeal from the Superior Court in Mohave County
No. S8015CR202300458
The Honorable Douglas R. Camacho, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Phillip A. Tomas
Counsel for Appellee

Ramos Law Firm, Scottsdale
By Paul A. Ramos
Counsel for Appellant
 STATE v. MALERBA
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Vice Chief Judge Randall M. Howe and Judge Andrew M. Jacobs
joined.

B A I L E Y, Judge:

¶1 Michael Edward Malerba appeals his convictions and
sentences for aggravated assault, criminal damage, unlawful flight, and
two counts of endangerment. He argues that the superior court erred in not
striking a detective’s rebuttal testimony because the State failed to disclose
him as a ballistics expert. We disagree and affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We view the evidence and reasonable inferences therefrom in
the light most favorable to affirming. State v. Fierro, 254 Ariz. 35, 38, ¶ 2
(2022).

¶3 In April 2023, Arizona Department of Public Safety detectives
Romanski and Perea followed Malerba’s pickup into his neighborhood in
their unmarked vehicles to arrest him. At some point, Perea realized
Malerba had gotten behind him and was following him down a narrow,
dead-end road. Perea then radioed Romanski, who turned on his
emergency lights and parked his SUV in the middle of the road to box
Malerba in and prevent him from fleeing.

¶4 Malerba made a U-turn and drove toward Romanski.
Romanski, who was wearing his police gear, got out of his SUV, drew his
service weapon, and repeatedly yelled at Malerba, “Police. Put your hands
up. Exit the vehicle.” Malerba stopped, remained in the driver’s seat, and
put his hands in the air. But almost immediately, Malerba dropped his
hands back onto the steering wheel and drove at Romanski. Malerba’s
truck side-swiped the SUV, sucking Romanski’s leg in between the two
vehicles, and throwing him to the ground. As Malerba’s pickup struck him,
Romanski fired one shot through the pickup’s windshield near the steering
wheel, hitting Malerba’s finger. Malerba sped away, but after a series of
collisions with detectives’ vehicles, he was caught and arrested.

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¶5 A grand jury indicted Malerba on two counts of aggravated
assault (counts 1–2), one count of criminal damage (count 3), one count of
unlawful flight from a pursuing law enforcement vehicle (count 4), and
three counts of endangerment (counts 5–7). The superior court granted
Malerba’s motion for judgment of acquittal as to counts 2 and 7, see Ariz. R.
Crim. P. (“Rule”) 20, and the jury convicted Malerba of the remaining
counts. After the jury found two aggravating factors, the court sentenced
Malerba to concurrent and consecutive terms of incarceration totaling 20.5
years.

¶6 We have jurisdiction over Malerba’s timely appeal. See Ariz.
Const. art. 6, § 9; Ariz. Rev. Stat. (“A.R.S.”) §§ 12–120.21(A)(1), 13–4031, 13–
4033(A)(1).

DISCUSSION

¶7 At trial, Romanski testified as a victim in the State’s case-in-
chief. After the State rested, Malerba testified that after turning his pickup
around and recognizing “who [Romanski] is,” he stopped and put his
hands up. He claimed Romanski shot at him while his hands were up,
which caused him to fear for his life and attempt to drive around Romanski.
He denied intentionally driving into Romanski.

¶8 The State cross-examined Malerba, then recalled Romanski as
a rebuttal witness to testify about how car windshields affect a bullet’s
trajectory. After providing foundation on his training and education,
Romanski testified that a bullet fired through a windshield will deflect
downward rather than upward because the “windshield is slanted
backwards.”

¶9 Malerba objected, arguing the State did not notice Romanski
as an expert, and asked the court to strike the rebuttal testimony. The
prosecutor responded that she did not know Malerba “would testify that
the bullet went through his hand when his hands were up. That’s the basis
for recalling [Romanski] and eliciting this testimony. I didn’t think it was
contested that [Malerba] got shot in the hand while his hands were on the
steering wheel.” The court overruled the objection, reasoning that “nobody
knew what [Malerba] was going to be testifying about,” or that “the
trajectory of the bullet would actually be an issue in this case,” so “part of
the reason why the [S]tate would not have listed Detective Romanski as an
expert as to this issue is because nobody knew that this was going to be an
issue.” The court then granted a recess so Malerba could interview
Romanski about his expert testimony. After interviewing Romanski,

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Malerba’s counsel cross-examined him on his qualifications, education, and
training, and confirmed he had not participated in any investigation to
determine the bullet’s trajectory in Malerba’s case.

¶10 On appeal, Malerba argues the superior court erred by
allowing Romanski’s rebuttal testimony because the State failed to disclose
him as a ballistics expert. We review evidentiary rulings for an abuse of
discretion. State v. Pina-Barajas, 244 Ariz. 106, 108, ¶ 4 (App. 2018).

¶11 The State generally must disclose the name of any expert it
intends to call at trial and “a summary of the general subject matter and
opinions on which the expert is expected to testify.” Ariz. R. Crim. P.
15.1(b)(4)(A)–(C). A defendant must “provide written notice to the State
specifying all defenses the defendant intends to assert at trial.” Ariz. R.
Crim. P. 15.2(b)(1). The requirement “is intended to be a broad disclosure
of the defendant’s case, including his rebuttal of the [S]tate’s case as well as
his own ‘case-in-chief.’” State v. Gonzales, 123 Ariz. 11, 12 (App. 1979).

¶12 “Upon receiving the defendant’s notice of defenses under
Rule 15.2(b), the State must disclose the name and address of each person
the State intends to call as a rebuttal witness, and any relevant written or
recorded statement of the witness.” Ariz. R. Crim. P. 15.1(h). “[I]t is
obviously unreasonable to require the State to list in advance of trial and
prior to the presentation of the defendant’s case the names of all potential
rebuttal witnesses, since the prosecution can rarely anticipate what course
the defense will pursue.” State v. Sullivan, 130 Ariz. 213, 216–17 (1981)
(citing State v. LaBarre, 115 Ariz. 444, 447 (App. 1977)); accord State v. Paxton, 186 Ariz. 580, 587–88 (App. 1996) (concluding the untimely disclosure of a
witness, resulting in the witness’s preclusion during the State’s case-in-
chief, did not require preclusion on rebuttal).

¶13 When an untimely disclosure occurs, the superior court may
“impose an appropriate sanction,” Ariz. R. Crim. P. 15.7(b), which is left to
the “sound discretion” of that court, State v. Tyler, 149 Ariz. 312, 315 (App.
1986). “But any sanction must be proportional to the violation and must
have ‘a minimal effect on the evidence and merits.’” State v. Payne, 233 Ariz.
484, 518, ¶ 155 (2013) (quoting State v. Towery, 186 Ariz. 168, 186 (1996)).

¶14 Here, Malerba did not put the State on notice before trial that
the bullet’s trajectory would be disputed. He made no mention of it in his
pretrial Rule 15.2(b) disclosure statement, either through his defenses list or
witness list. And although he noted the witness list would “be
supplemented and provided as identified through additional investigation

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and case preparation,” the record shows no other disclosure statements.
Moreover, at trial, Malerba’s attorney acknowledged he “didn’t anticipate
this issue at all.”

¶15 Our decision in State v. Lewis, 121 Ariz. 155 (App. 1978), is
instructive and guides us here. There, as here, a defendant failed to disclose
a defense under Rule 15.2(b)—in that case, one relating to the market value
of certain stolen goods. Id. at 160. Because the defendant in Lewis failed to
make that disclosure, the prosecution, as here, reacted to the surprise
evidence by putting on rebuttal evidence the prosecution did not expect to
use. Id. We approved the admission of that evidence, stating, “We cannot
fault the prosecutor for failing to anticipate that the market value of the
items would be at issue.” Id. Neither can we find fault here with the
prosecution’s reaction to Malerba’s surprise argument. See also State v.
Binford, 120 Ariz. 86, 89 (App. 1978) (allowing the State to call witnesses to
rebut the defendant’s testimony, “which was the product of his last minute
decision to [testify]”).

¶16 Also as in Lewis, the court allowed Malerba’s attorney to
interview the witness who supplied the unanticipated rebuttal testimony.
See 121 Ariz. at 160. Still, Malerba argues his interview with Romanski
could not cure any alleged disclosure violation because he had no time to
locate a rebuttal expert witness.

¶17 The superior court acted within its discretion in granting a
recess to allow defense counsel to question Romanski about his expertise
and qualifications outside the jury’s presence and in allowing counsel to
then cross-examine Romanski. See State v. Roque, 213 Ariz. 193, 210-11, ¶¶
49–52 (2006), abrogated on other grounds by State v. Escalante-Orozco, 241 Ariz.
254, 267, ¶¶ 11–15 (2017). Malerba never requested a continuance to find
his own expert witness or any other remedy short of striking Romanski’s
testimony, and although the court appeared open to allowing Malerba to
testify again after Romanski’s rebuttal testimony, defense counsel
ultimately chose not to recall Malerba. See State v. Robinson, 127 Ariz. 324,
329 (App. 1980) (finding no abuse of discretion where the defendant had a
chance to interview an undisclosed rebuttal witness, did not ask for a
continuance, and showed no prejudice).

¶18 Because “[a] witness should be precluded only as a last
resort,” State v. Delgado, 174 Ariz. 252, 257 (App. 1993) (citation omitted),
the court also acted within its discretion in denying the only requested
relief—striking Romanski’s rebuttal testimony, see State v. Armstrong, 208
Ariz. 345, 353–54, ¶¶ 40–41 (2004) (stating the superior court “should seek

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to apply sanctions that affect the evidence at trial and the merits of the case
as little as possible, since the Rules of Criminal Procedure are designed to
implement, and not to impede, the fair and speedy determination of cases”
(quoting State v. Schrock, 149 Ariz. 433, 436–37 (1986))). “[P]reclusion is
rarely an appropriate sanction for a discovery violation,” Delgado, 174 Ariz.
at 257 (citation omitted), and was particularly inapt here, because Malerba’s
own failure to disclose caused the State to use unexpected evidence. The
court acted well within its discretion by denying Malerba’s request to strike
Romanski’s expert testimony.

¶19 Finally, even if the superior court erred in allowing Romanski
to testify on rebuttal—which it did not—any error was harmless beyond a
reasonable doubt. The State presented overwhelming evidence of
Malerba’s guilt on each count, including the testimony of Romanski and
Perea—who saw Malerba’s pickup drive forward and heard Romanski say
he was getting crushed before Romanski fired his gun—as well as the many
exhibits admitted into evidence, including Romanski’s body camera
footage, which supports the detectives’ testimony.

CONCLUSION

¶20 We affirm Malerba’s convictions and sentences.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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