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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Appellant,
v.
GABRIEL PAUL HORCASITAS, Appellee.
No. 1 CA-CR 23-0215
FILED 4-4-2024
Appeal from the Superior Court in Maricopa County
No. CR2021-142720-001
The Honorable Michael C. Blair, Judge
AFFIRMED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Quinton S. Gregory
Counsel for Appellant
Lamm & Associates PLLC, Phoenix
By Jason D. Lamm
Co-Counsel for Appellee
Koplow Law Firm
By Lawrence S. Koplow
Co-Counsel for Appellee
STATE v. HORCASITAS
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge Michael J. Brown joined.
T H U M M A, Judge:
¶1 The State of Arizona appeals from an order vacating
defendant Gabriel Horcasitas’ conviction and granting him a new trial
based on the State’s failure to comply with disclosure obligations. Because
the State has shown no error, the order is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 In 2021, Horcasitas and the victim were involved in a road
rage incident in Chandler, Arizona. The trial evidence indicated that, when
both vehicles were stopped at a red light, Horcasitas repeatedly honked at
the victim. The victim got out of his truck and, while waving his arms and
apparently shouting threats, approached Horcasitas’ car. After a few
seconds, Horcasitas shot twice; one bullet killed the victim. During the
investigation, police impounded cell phones from the victim and
Horcasitas.
¶3 The State charged Horcasitas with: (1) first degree murder, a
Class 1 dangerous felony; (2) second degree murder, a Class 1 dangerous
felony; (3) drive by shooting, a Class 2 dangerous felony; and (4) three
counts of endangerment (with different victims), each a Class 6 dangerous
felony. Horcasitas disclosed various defenses, including justification, self-
defense, defense of others and accident.
¶4 Trial began in March 2023. On the seventh day of trial, during
the State’s case in chief, cross-examination of a detective revealed that
police had conducted a “Cellebrite” analysis of the victim’s phone. The
detective described Cellebrite as “a snapshot download of your phone as it
is at the time [] it’s presented to . . . the computer crimes detective who does
the download.” At sidebar, Horcasitas’ counsel asserted that the State had
not disclosed the victim’s cell phone records, asking to further discuss the
issue outside of the presence of the jury.
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STATE v. HORCASITAS
Decision of the Court
¶5 The next morning, the State moved for a protective order
addressing the victim’s Google Pixel 2XL cell phone. The motion noted that
the police were in the possession of the victim’s cell phone, adding that
“[d]ue to the nature of the media format and the quantity of the media data
[on the cell phone], the victim’s identifying and/or locating information
cannot be redacted.” The motion concluded that “the State is required to
disclose” the victim’s cell phone “under Rule 15.1 of the Arizona Rules of
Criminal Procedure and [] defense counsel may find information . . . that
implicates Brady v. Maryland,” 373 U.S. 83 (1963). The motion “asks that this
Court order the . . . cell phone that belonged to the victim be disclosed,”
subject to a protective order limiting disclosure of the victim’s identifying
information.
¶6 In addressing the issue outside of the presence of the jury,
Horcasitas’ counsel argued the State’s disclosure was untimely, coming
during the third week of trial after he had “committed to defenses” and
“shaped defenses through testimony.” He added that “[g]oing through a
Cellebrite analysis is extremely laborious,” involving “double-digit hours”
and expert analysis, adding “that the expert whom I normally use is not
available to do this anytime soon. So I think there certainly is prejudice at
this point.” The State told the court it had “requested those [Cellebrite]
records yesterday,” also referencing a “supplement that discusses those
records with regard to Cellebrite and the download from the victim’s
phone, so he was on notice that the information existed.” The State
continued: “[w]e didn’t receive it, we didn’t request it, we didn’t ask for it,
but [Horcasitas] was on notice that the information existed, and it wasn’t as
if he made a request for it and we did not provide it to him.”
¶7 Later during this exchange, the State indicated that the
conclusion in the motion for protective order – that “the State is required to
disclose” the victim’s cell phone – was “a standard motion for every
victim’s phone.” The State added that the cell phone reports “may have”
been first received “in our office this morning.” When discussing potential
exculpatory information on the cell phone, the prosecutor responded that
she “didn’t look at the phone,” later admitting that no lawyer in her office
had done so.
¶8 Noting that the extent of any prejudice could not be
determined until the disclosure was provided, Horcasitas reserved the right
to move for a mistrial. After discussing the possibility of a mistrial, the
superior court granted the motion for protective order, found a discovery
violation by the State and deferred appropriate sanctions. The court then
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STATE v. HORCASITAS
Decision of the Court
ordered the State to provide Horcasitas with the Cellebrite information that
same day.
¶9 After five additional trial days, and deliberation, the jury
returned split verdicts, finding Horcasitas: (1) not guilty of first-degree
murder; (2) not guilty of second-degree murder, but guilty of the lesser
included offense of manslaughter by sudden quarrel or heat of passion; (3)
not guilty of drive by shooting; and (4) guilty of one count of endangerment
and not guilty of the other two endangerment counts.
¶10 Horcasitas filed a timely motion to dismiss with prejudice, or
in the alternative, for a new trial. The motion argued that the Cellebrite
analysis of the victim’s phone included exculpatory evidence not
previously disclosed, including texts relating to the victim’s mental state
and tendency to “snap[]” while driving in the weeks leading up to the
shooting. The State opposed the motion, arguing “there was no Brady or
Rule 15 violation.”
¶11 After oral argument, the court found that the text messages
from the victim’s cell phone bolstered Horcasitas’ self-defense and related
justifications and could have mitigated his punishment. The court also
found the State had violated its disclosure obligations under both Brady and
Rule 15.1(b)(8) because it failed to disclose the Cellebrite information to
Horcasitas, so he “did not have the opportunity to ferret it out and [] present
it to the jury.” The court ordered that the victim’s full Cellebrite report be
turned over to Horcasitas but denied his request for production of the
phone itself. Although noting the failure to disclose was not intentional,
and a reluctance to set aside a jury verdict, the court granted Horcasitas’
motion for new trial and vacated the verdicts but denied his request for
dismissal with prejudice. Concluding the State “violated its Brady
obligations under Rule 15.1(B)(8) in not producing this information,” the
court noted Horcasitas was entitled to put on a complete defense, that he
was prevented from doing so by the failure to provide proper disclosure
and concluded that the State “didn’t even have a lawyer look at it. That’s
misconduct in this Court’s opinion. Therefore, I’m granting the Motion for
New Trial.”
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STATE v. HORCASITAS
Decision of the Court
¶12 This court has jurisdiction over the State’s timely appeal
pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona
Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031 and 13-
4033(A)(2024).1
DISCUSSION
¶13 The superior court’s decision on a motion for new trial is
reviewed for an abuse of discretion. State v. Landrigan, 176 Ariz. 1, 4 (1993).
This discretion is particularly broad, given the trial judge “is in the best
position to determine whether the evidence will actually affect the outcome
of the trial.” State v. Jones, 197 Ariz. 290, 304 ¶ 32 (2000). Significant
deference is relevant here, where the same judge who presided over the
trial is asked to assess whether a criminal defendant was able to present a
complete defense in considering a motion for new trial. See generally State v.
Fischer, 242 Ariz. 44, 50 ¶ 21 (2017) (describing, in reviewing an appeal from
a new trial based on a claim the verdict was contrary to the evidence, the
deference owed to the trial judge).
¶14 The basis for the new trial was a finding that the State failed
to comply with its disclosure obligations under both Brady and Rule 15.1.
In general, rulings on the adequacy of disclosure are also reviewed for an
abuse of discretion. See, e.g., State v. Roque, 213 Ariz. 193, 205 ¶ 21 (2006)
(citing State v. Piper, 113 Ariz. 390, 392 (1976)); State v. Arvallo, 232 Ariz. 200,
206 ¶ 36 (App. 2013). Similarly, this court reviews the imposition of
sanctions for non-disclosure for an abuse of discretion. Roque, 213 Ariz. at
205 ¶ 21(2006) (citing State v. Armstrong, 208 Ariz. 345, 353–54 ¶ 40 (2004)).
I. The State Has Not Shown the Superior Court Erred in Finding the
State Violated Its Disclosure Obligations.
¶15 The State argues that it met its disclosure obligations under
both Brady and Rule 15.1 because “the download of the [v]ictim’s cell phone
was ‘made available’ to Horcasitas,” and “nothing on that phone had any
relevance to his guilt.” While there is significant overlap between Brady and
Rule 15.1, decades ago, the Arizona Supreme Court noted that they are not
identical. The State’s disclosure obligation under Rule 15.1 “is broader than
the requirements of Brady. There may be violations of Rule 15.1, although
arguably harmless, where there is no Brady violation.” State v. Jessen, 130
Ariz. 1, 4 (1981). As applicable here, Rule 15.1(b)(8) directs the State to
1 Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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STATE v. HORCASITAS
Decision of the Court
“make available to the defendant” any information that “tends to mitigate
or negate the defendant’s guilt or would tend to reduce the defendant’s
punishment.”
A. The State Has Not Shown the Superior Court Abused Its
Discretion in Finding the State Violated Its Disclosure
Obligations Even Though the Evidence Was Provided to
Horcasitas During Trial.
¶16 The State argues that it did not violate Brady because
“Horcasitas received and could have made effective use of the disputed
material at trial.” The analysis here, however, is under Rule 15.1, and the
State has not cited authority suggesting the analysis is the same under that
rule. Even if it is the same, although the State is not required to disclose
Brady material before trial, “[d]isclosure must be made at a time when
disclosure would be of value to the accused.” United States v. Gordon, 844
F.2d 1397, 1403 (9th Cir. 1988).
¶17 Here, Horcasitas did not receive the Cellebrite information
until cross-examination of the detective was finished and after the parties
were two-thirds of the way through trial. Horcasitas then had to secure the
services of an expert, who was unavailable during trial, and review
“thousands of text (SMS) and MMS messages.” Horcasitas had not finished
that undertaking before jury deliberations, when he notified the court of
several significant texts he found. Based on these facts, the superior court
could reasonably conclude the State’s disclosure was too late to “be of value
to the accused.” Gordon, 844 F.2d at 1403. Accordingly, the State has not
shown the superior court abused its discretion.
B. The State Has Not Shown the Superior Court Abused Its
Discretion in Finding the State Did Not Sufficiently
Disclose the Cell Phone Download to Horcasitas.
¶18 The State argues it met its obligation to make the Cellebrite
information available to Horcasitas because, a year before trial, it provided
him with a police report. In that report, an officer wrote that on November
17, 2021, he “viewed the forensic download of the victim’s cell phone for
the time frame before, after, and during the incident. No items of
evidentiary value were found. A copy of the forensic download has been
preserved by the Computer Crimes Unit should it be needed.”
¶19 The superior court found that merely providing Horcasitas
with a police report mentioning a “forensic download” was insufficient for
the State to meet its disclosure obligations. The State “should have given
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STATE v. HORCASITAS
Decision of the Court
the information. They should have given the Cellebrite information, and
they should have had an attorney look at it.”
¶20 “Simply stated, the rule is that the prosecution must turn over
to the defendant full information regarding any exculpatory evidence it
possesses unless the defendant actually has knowledge of such evidence.”
State v. Jones, 120 Ariz. 556, 560 (1978) (emphasis added). Here, though
Horcasitas had notice that a “forensic download” existed, the record
supports the superior court’s finding that he did not have any knowledge
of the text messages relating to the victim’s mental state and driving
tendencies.
¶21 Jones, where the State interviewed the defendant’s associate
but did not disclose several statements made during the interview, is
analogous. There, the Arizona Supreme Court found that:
Under the facts revealed by the record, although
the defendant knew that a witness was to be
interviewed by the [S]tate, he did not know
what exculpatory testimony, if any, would
ultimately be revealed to the [S]tate at that
interview . . . if [the State is] in doubt as to
whether or not a defendant knows of certain
exculpatory evidence already known to the
[S]tate, reveal it.
Jones, 120 Ariz. at 560. Likewise, though Horcasitas may have been notified
by the police report that a forensic download of the victim’s phone existed,
he did not have knowledge of the exculpatory texts found in the download,
especially when the report declares that “no items of evidentiary value”
were found. On this record, the superior court properly could conclude that
the State did not sufficiently disclose the cell phone download.
C. The State Has Not Shown the Superior Court Abused Its
Discretion in Finding Rule 15.1(b)(8) Required the State to
Disclose the Cellebrite Information.
¶22 The State argues it did not violate Rule 15.1 because the text
messages found on the victim’s phone are “non-material and non-
exculpatory evidence.” Rule 15.1(b)(8), however, requires disclosure of
information that “tends to mitigate or negate the defendant’s guilt or would
tend to reduce the defendant’s punishment.” Again, on this record, the
superior court properly could conclude that Rule 15.1(b)(8) required the
State to disclose the text messages.
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STATE v. HORCASITAS
Decision of the Court
¶23 The superior court found the Cellebrite information to be the
kind of information Rule 15.1(b)(8) requires be disclosed, noting the State
charged Horcasitas with first degree felony murder. The court added:
“Wouldn’t this information tend to mitigate or negate the defendant’s guilt
down to a manslaughter charge or tend to reduce his punishment from
felony murder down to what the jury found was manslaughter?”
¶24 The State countered that Horcasitas had the opportunity to
present his self-defense argument at trial. The superior court, however,
noted Horcasitas was “entitled to put on his complete defense,” meaning
the State had an obligation to disclose the Cellebrite information:
If [Horcasitas] can argue self-defense, that tends
to mitigate the punishment because the
punishment for manslaughter is a lot less than
drive-by shooting, felony murder . . . And this
goes towards self-defense even more. I don’t
know if it would have persuaded the jury
otherwise . . . but [Horcasitas] should have had
the opportunity to have that information so he
could have used it in preparation for his defense
in front of the jury.
¶25 Though the State argued otherwise, the superior court found
the Cellebrite information was material to Horcasitas’ self-defense claim.
See also Ariz. R. Evid. 401(b) (using, as a proxy for materiality, that “the fact
is of consequence in determining the action”). On this record, the State has
not shown the superior court abused its discretion in finding the text
messages to be the kind of evidence that must be disclosed under Rule
15.1(b)(8).
CONCLUSION
¶26 The superior court’s order, finding the State unintentionally
violated Rule 15.1 and vacating Horcasitas’ convictions and ordering a new
trial, is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
8