1975 AZ Supreme Court decision defines neighborhood as residential
Defense accused Cochise County Attorney’s Office of “shotgunning” criminal charge
BISBEE – On May 15, Justice of the Peace Adam Ambrose dismissed the disorderly conduct case against Mike Carrafa, editor of the Tombstone Gazette. Judge Ambrose cited the lack of a specified victim in making the ruling, which he ordered “with prejudice” meaning Carrafa cannot be recharged for the same incident.
The outspoken news editor was facing six months in jail for “yelling and cussing” in an “aggressive and aggravated manner” during a July 23 conversation with an employee of Cheri Escapule, the wife of Mayor Dusty Escapule. The discussion, which took place along historic Allen Street, centered on Carrafa’s often critical articles about the mayor.
Minutes before the trial was to begin, defense attorney Joel Borowiec argued for dismissal of the case because the statute Carrafa was charged under deals with disturbing “the peace or quiet of a neighborhood, family or person.” But Carrafa was charged with creating a disturbance in Tombstone’s business district.
Prosecutor Jason Lindstrom countered that Carrafa’s behavior “disrupted many different people” including some working in nearby businesses. Instead of filing a criminal charge for each person Carrafa disturbed, Lindstrom explained that the single charge represented his disturbing “the peace of a neighborhood.”
However, Borowiec cited a 40 year old Arizona Supreme Court ruling (State v. Johnson 1975) which defined a neighborhood as an area where people live. After reviewing the case law, judge Ambrose noted “I don’t think disruption of a nearby business” applies to the disorderly conduct statue used by the State.
The defense also claimed a due process violation because the State never disclosed a specific person who was considered a victim of Carrafa’s alleged actions. Lindstrom questioned why the defense brought up the “who is the victim” issue on the morning of trial, but judge Ambrose noted it was “not the defense’s job” to point out problems with the prosecution’s case.
Borowiec also criticized the State for “shotgunning” the charges against Carrafa. The attorney pointed out his client was originally charged under one provision of the disorderly conduct statute but six months later the complaint was amended to include several provisions of the statute. It was a tactic, Borowiec said, used in the hope that something “hit the target.”
Because of the dismissal order, Ambrose did not address a motion filed May 9 by Cheri Escapule to quash (void) a subpoena served on her by the defense. In her motion, Cheri Escapule argued she had “nothing to contribute to this case” and “was not a witness to the events” even though court and police records show she is the one who reported the incident to Tombstone Marshal Bob Randall.
It was also revealed that prosecutor Lindstrom returned the case file to the Marshal’s Office at least once for additional action before Carrafa was finally served with the criminal complaint four weeks after the incident. Carrafa was never questioned by a deputy before the complaint was filed.
Contact reporter Terri Jo Neff at firstname.lastname@example.org or 520-508-3660