A Superior Court Judge Tuesday chastised the prosecution for its handling of documents in the case of a man convicted of assaulting several Payson police officers during an arrest two years ago.
While Judge Peter Cahill sentenced Brandon Lee Lewis, 25, to two years probation and 30 days in jail, he deferred the jail sentence since an appeal of his conviction appears eminent.
“If I were to make Mr. Lewis go to jail today, like he otherwise deserves, and then either I or some appellate court were to reverse the conviction, I couldn’t give Mr. Lewis back his 30 days,” Cahill said.
Several months ago, a jury found Lewis guilty of aggravated assault on officers Jessie Davies and Justin Deaton, but acquitted him on a charge of assaulting Officer Lorenzo Ortiz. The jury also convicted Lewis on charges of resisting arrest and both felony and misdemeanor criminal damage.
On Oct. 30, 2011, all three officers responded to a call after a truck hit a retaining wall near an apartment complex on West Frontier Street. While investigating the wreck, Officer Davies suspected Lewis, the driver, had been drinking. Officers placed him under arrest after he proved uncooperative in taking a field sobriety test. Lewis, however, resisted and a scuffle ensued, which several people witnessed.
Officer Ortiz testified he punched Lewis several times with his fists and elbows, but Lewis continued to resist.
Eventually, the officers cuffed Lewis and took him to a patrol vehicle. Lewis struck his head against the hood of the SUV, leaving a dent. Lewis then spit blood at Davies, according to court testimony.
Lewis denied purposefully spitting at Davies and insisted officers “took matters to an extreme and feels he is a victim of police brutality,” according to a pre-sentencing report.
After the conviction, several things unfolded.
First, Lewis posted on his Facebook account a picture of alcohol he was reportedly drinking and several comments about losing the trial, including, “F* the police.”
Second, officers found Lewis stumbling around in the forest, extremely drunk and without any shoes. At the sentencing hearing, Officer Deaton cited that incident as further evidence that Lewis had a drinking problem and made poor decisions.
Other discussion at the hearing focused on documents that the defense had not had during the trial.
Defense attorneys said they had recently received five documents that related to officer and witness statements about the night of the arrest. None of those documents were presented during the criminal trial.
But according to the Gila County Attorney’s Office, they didn’t have those documents either.
The documents reportedly came from the Town of Payson, which is preparing to defend itself in a civil case that Lewis has filed, according to the county attorney’s office. Lewis is suing the town and all three officers for damages.
Town Attorney Tim Wright said another lawyer is handling the case for the town and had no comment. Lewis’ attorney Mike Harper would not comment on the civil case.
On Monday, Cahill received word from Lewis’ defense team that it had received these new documents.
Cahill also learned another document had surfaced. It pertains to a cost estimate to repair the damaged hood, which determined whether Lewis would face felony or lesser charges.
On the stand, Payson Police Sgt. Donny Garvin testified it would cost roughly $1,200 to repair the hood of the police car, which officers said Lewis damaged by beating his head against the metal. Garvin gave that figure based on his own experience as the fleet manager.
However, the prosecution’s pile of papers included a $700 cost estimate from a local body shop to repair that damage.
The county attorney’s office denied intentionally withholding the information, saying the estimate from the body shop was lost in the shuffle.
The estimate played a key role in the charges Lewis faced, since any damage over $1,000 constitutes a felony. But if the jury had known about the $700 estimate, it could have convicted Lewis of a misdemeanor instead.
Cahill said he was very reluctant to send Lewis to jail in light of the new information.
While he normally doesn’t wait around for the court of appeals, Cahill said he would in this case.
At Tuesday’s sentencing, prosecutor Marc Stanley handed Cahill and the defense copies of Lewis’ Facebook posts relating to the trial and drinking. Stanley said a prosecutor in the office had found the public posts May 9 and took screenshots.
“This defendant is an individual that has a drinking problem, I think that is clear,” he said. He added Lewis “doesn’t have any respect for authority.”
Stanley asked Cahill to sentence Lewis to six months in jail, 36 months probation and community service. He also asked for Lewis to go though anger and substance abuse screenings and undergo any recommended treatment.
Stanley said Lewis needed to understand his actions have consequences. He said he also needs rehabilitation.
Lewis’ defense team objected to the introduction of the Facebook posts in the midst of sentencing.
Cahill asked Stanley why he had waited to share this information.
“You have had them for three months and you disclose them now right as we start sentencing? Do you think that is fair?” Cahill asked.
Stanley said it should come as no surprise since the defendant made the posts.
Cahill accused Stanley of sandbagging the defense team.
“You are sullying up this record with tardy disclosure of the police department’s own estimate of what the real cost of repairs are; you are sullying up the record with this failure to disclose the witness statements, giving the defense, as they have indicated, a basis for a new trial,” he said. “And then you have important information ... for the court to consider in order to make the right sentence here and you wait until the last minute to give it to the lawyer when he has no opportunity to consult with his client and get explanation.”
Cahill said he would not consider the Facebook posts, but would listen to victim statements from the officers.
Davies said he agreed with Stanley’s sentence recommendation and hoped Lewis would be held accountable for his actions.
He said the incident has affected him personally and professionally.
“We are now being sued over this incident, which has dragged out for many, many months and I find myself second guessing myself when it comes to other applications of the use of force,” he said. “Now instead of perhaps the appropriate decision that is going to pertain to what is best for the situation, I find myself wondering, ‘Boy, I hope I don’t get sued and I hope I don’t get dragged through the mud and the courts for another 14, 15, 16, approaching two years.’”
Ortiz, who was recently promoted to detective, asked the judge to consider the ramifications of the sentence.
“I hope with your decision that you take in mind that the things that come out of these courtrooms send messages to the public and how they can choose to act in the future and their handlings with law enforcement.”
Deaton asked the judge to consider a jail term along with probation.
“It is hard to sit back and think that Mr. Lewis is going to learn anything with a simple probation stint.”
Deaton also echoed Ortiz’s sentiment on the social consequences.
“He physically assaulted three officers. That is not OK,” he said. “We don’t have to come to work to get injured or get hurt or get swung at. We are not in the line of physically fighting people and that night we had to because he began physically fighting us.”
A probation officer, who wrote the presenting report, did not recommend jail time.
Lewis’ defense counsel said that should weigh in the judge’s decision.
Defense attorney Chuck Walker said Lewis didn’t deserve jail time and he disagreed with the officers’ concerns about sending the wrong message to the public if Lewis didn’t go to jail.
“This is not going to phone in some insurrection on the streets if you don’t give Brandon Lewis jail time,” he said.
“But the point well made Mr. Walker is that if the right thing isn’t done, it will in the future put these officers at risk,” Cahill said.
“I disagree with that,” Walker said, adding everyone knows who got hurt worse that night.
Walker added while Lewis disagrees with the verdict, he accepts it. “Brandon understands that he was wrong that night. He understands that it was his decisions, his decisions to drink too much and his decisions to get into a car after that and drive that led to this whole thing,” he said.
Still, Walker added, “I hope the Payson Police Department does not see this verdict as some kind of ringing endorsement of the way this arrest was handled because it wasn’t.”
Cahill sentenced Lewis to two years probation, 60 hours of community service, 30 days in jail (deferred), fines and anger and alcohol screenings.