State v. Reyes

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

EDGAR CARLOS REYES, Appellant.

No. 1 CA-CR 24-0431
FILED 05-08-2025

Appeal from the Superior Court in Maricopa County
No. CR2023-150663-001
The Honorable Harla M. Davidson, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph Newberg
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Laila Ikram, Mikel Steinfeld
Counsel for Appellant
 STATE v. REYES
Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Anni Hill Foster and Judge Paul J. McMurdie joined.

B R O W N, Judge:

¶1 Edgar Carlos Reyes appeals his convictions for two counts of
aggravated driving under the influence (“DUI”), asserting the trial court
erred by admitting evidence that was not timely disclosed. Because Reyes
has not shown the court abused its discretion, we affirm.

BACKGROUND

¶2 Around 4:30 a.m. on September 16, 2023, a “wrong-way
detection alarm went off,” alerting a traffic operations specialist that a
vehicle had entered the Loop 303 highway (“Loop 303”) through an exit
ramp and was proceeding against traffic. Through a live camera feed, the
specialist identified the vehicle as a white pickup truck, reported the
situation to law enforcement, and relayed the truck’s movements to the
dispatcher. The specialist only lost sight of the truck for a few seconds as
he switched between different camera systems and did not observe any
other white pickup trucks in that section of Loop 303.

¶3 The truck continued southbound in the northbound lanes,
migrated to the right (the northbound “fast lane”), slowed down, and
eventually stopped and completed a U-turn. The truck then exited Loop
303 from the same exit ramp where it originally entered, proceeded straight
across the intersection, and rejoined the northbound lanes of Loop 303. At
4:32 and 4:34 a.m., police dispatch received 911 calls from two motorists
who reported a wrong-way driver. One caller identified the vehicle as “a
pickup truck . . . [of] a lighter color, it could have been a dirty white or a
gray,” driving “south in the northbound lanes of Loop 303, right near exit
115.” The other caller reported their location “on the 303 heading north just
south of the Bell [Road] exit.” The caller encountered “a white large pickup
truck going southbound in the northbound . . . highway. . . . And they’re
right on the edge of the shoulder. . . . [T]he vehicle in front of me and myself
had to swerve over so they would not hit us.”

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Decision of the Court

¶4 A trooper received the report of a wrong-way driver at 4:32
a.m., located the white truck, observed it swerving and weaving, and
performed a traffic stop at 4:35 a.m. The driver (Reyes) had bloodshot eyes,
slurred speech, and an unsteady gait. He also offered his passport when
asked to provide his driver’s license. Two breath samples, taken six
minutes apart, showed Reyes’ blood alcohol content (“BAC”) was 0.148%
and 0.149%, well above the legal limit set by A.R.S. § 28-1381.

¶5 The State charged Reyes with two counts of aggravated DUI
based on wrong-way driving. A.R.S. §§ 28-1381(A)(1), -1383(A)(5), (O)(1),
(P)(2). On February 7, 2024, Reyes moved for the preservation and
disclosure of the two 911 recordings under Arizona Rule of Criminal
Procedure (“Rule”) 15.1(e), and the court granted the motion, ordering the
State “to make all reasonable efforts” to preserve and disclose the
recordings. The State requested the recordings from the Arizona
Department of Public Safety that same month and followed up in March
and April. The State received the recordings on May 5 and disclosed them
to Reyes three days later.

¶6 The State then filed a motion in limine to admit the
recordings. In response, Reyes argued the disclosure was untimely and
thus there was insufficient “time before trial to try and locate these
witnesses. Possible exculpatory evidence is now unavailable.” Reyes asked
the court to preclude the recordings for untimeliness. After discussing the
issues with counsel, the trial court granted the State’s motion.

¶7 A jury found Reyes guilty on both counts, and the court
sentenced him to concurrent terms of four months’ imprisonment. Reyes
timely appealed, and we have jurisdiction under A.R.S. §§ 12-120.21(A)(1),
13-4031, and 13-4033(A).

DISCUSSION

¶8 Reyes argues the trial court abused its discretion by admitting
the 911 call recordings despite their untimely disclosure. He notes that his
motion to disclose the recordings created a March 7, 2024 deadline; thus,
the State’s disclosure was more than two months late. See Ariz. R. Crim. P.
15.1(e)(1)(B) (requiring the State to make “any 911 calls existing at the time
of the request” available to the defendant no later than 30 days following
receipt of a written request). Trial was scheduled to begin on May 20, 2024,
so Reyes contends the late disclosure deprived him of the opportunity to
locate and interview the callers. Because he could not “cross-examine the
callers or develop a counter-narrative,” he argues that the State violated his

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Decision of the Court

Fourteenth Amendment right to due process. U.S. Const. amend. XIV.
Citing this prejudice, he asks for a new trial.

¶9 “Whether to impose a sanction for late disclosure and which
sanction to impose are discretionary decisions left to the trial court; we will
not disturb those decisions absent an abuse of discretion.” State v. Moody, 208 Ariz. 424, 454, ¶ 114 (2004); see also State v. Towery, 186 Ariz. 168, 186
(1996) (“Denial of a [disclosure] sanction is generally not an abuse of
discretion if the trial court believes the defendant will not be prejudiced.”).
Although preclusion of evidence is an available remedy, it “is rarely an
appropriate sanction for a discovery violation.” State v. Naranjo, 234 Ariz.
233, 242, ¶ 30 (2014).

¶10 Factors relevant to whether untimely disclosure should be
allowed include (1) “the significance of the information not timely
disclosed,” (2) “the violation’s impact on the overall administration of the
case,” (3) “the sanction’s impact on the party,” and (4) “the state of the
proceedings when the party ultimately made the disclosure.” Ariz. R.
Crim. P. 15.7(c). Here, the trial court explained that the State was
“dependent on another agency in another jurisdiction” to release the
recordings, “act[ed] with due diligence” to obtain the recordings, and
disclosed them “within three days” of receipt. In evaluating the late
disclosure’s impact on the defense, the court found that (1) the defense was
“not able to state whether they attempted” to contact the callers in the 12
days between the disclosure and the start of trial and (2) “the timeliness of
the disclosure [did] not change” how the defense was proceeding with their
case.

¶11 Reyes does not challenge the court’s findings. Instead, he
relies on State v. Krone, 182 Ariz. 319 (1995), and Jimenez v. Chavez, 234 Ariz.
448 (App. 2014), to support his position that admitting the recordings was
an abuse of discretion. But those cases are distinguishable. Krone involved
an expert’s video reenactment of “crucial” bite marks that purportedly
matched the defendant to the victim. Krone, 182 Ariz. at 320, 322. Because
the State did not disclose the “powerful and effective” video until three
days before trial, our supreme court reversed the convictions and ordered
a new trial because the late disclosure prejudiced the defense. Id. at 322–23.
In Jimenez, this court held that preclusion was the proper sanction for the
untimely disclosure of “critical” DNA evidence because the State failed to
disclose it until the day before the trial. Jimenez, 234 Ariz. at 452–53, ¶¶ 21,
23.

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Decision of the Court

¶12 Here, the 911 call recordings did not provide “crucial” or
“critical” evidence against Reyes; instead, the recordings merely supported
the other evidence presented by the State and cannot reasonably be
considered foundational, “critical” evidence on which the State’s case
relied. Jimenez, 234 Ariz. at 452, ¶ 21. The State presented video evidence
of Reyes entering the exit ramp and testimony from the specialist who
observed the white truck driving the wrong way on the freeway. Neither
the specialist nor the trooper observed any other white trucks on the
freeway, and the trooper told the jury about his observations of Reyes’
impairment, as well as the BAC results. Also, the 911 recordings were
disclosed 12 days before trial, giving the defense more time than the Krone
or Jimenez defendants had. Reyes has not shown the trial court abused its
discretion in granting the State’s motion in limine.

¶13 Reyes also argues the late disclosure violated his right to due
process. Because this argument was not presented in the trial court, we
review it for fundamental error only. See State v. Henderson, 210 Ariz. 561,
568, ¶ 22 (2005). To prevail under that standard, Reyes must first establish
that trial error occurred. State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018). If
error is shown, then we “must decide if the error is fundamental . . . [under]
the totality of the circumstances.” Id. “A defendant establishes
fundamental error by showing that (1) the error went to the foundation of
the case, (2) the error took from the defendant a right essential to his
defense, or (3) the error was so egregious that he could not possibly have
received a fair trial.” Id. The first two prongs, if found, require a subsequent
finding of prejudice; the third is inherently prejudicial. Id. To prove
prejudice, a defendant must show “that without the error, a reasonable jury
could have plausibly and intelligently returned a different verdict.” Id. at
144, ¶ 31. We find no error, much less fundamental error, in the trial court’s
decision to allow the State to present the 911 recordings at trial.

CONCLUSION

¶14 We affirm.

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

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