A judge set a new trial date Monday in a case against a man accused of assaulting officers during an arrest in October of 2011. The man’s convictions were recently thrown out due to mistakes and omissions by police and prosecutors.
Superior Court Judge Peter Cahill recently vacated the conviction and sentence against Brandon Lee Lewis after he found the state did not disclose key information at trial that could have swayed the jury that convicted him of assaulting two officers, resisting arrest and criminal damage.
Information not properly disclosed includes statements three officers made shortly after the arrest, a vehicle damage estimate that could have reduced a criminal damage charge to a misdemeanor and information regarding the credibility of Sgt. Donny Garvin, a key witness in the criminal damage aspect of the trial. To read copies of the omitted police reports, find this story on our Web site at payson.com and click on the embedded PDF copies of the reports.
The Gila County Attorney’s Office and Lewis’ lawyers will have a chance to re-argue their cases this spring. Cahill set an eight-day trial May 6 before eight jurors in Payson. Lewis’ lawyer, Michael Harper, however, said he will file a motion to dismiss the charges later this month. If approved, the trial would likely not take place.
Lewis also has filed a civil suit against the town. Harper would not discuss the status of the civil case.
If the criminal trial goes forward, lawyers would likely call many of the same witnesses to establish what happened that night before Halloween in 2011.
Lewis had reportedly driven his truck over a retaining wall near an apartment complex on West Frontier Street that night, according to trial testimony. Officer Jessie Davies was the first to arrive. He suspected Lewis was drunk and started a sobriety test. Lewis grew combative, according to police reports.
Officers Justin Deaton and Lorenzo Ortiz, who had arrived as backup, watched from across the street. They approached when Lewis raised his voice and “squared” off toward Davies like he would hit him, according to internal memorandums and use of force reports the officers wrote shortly after the incident. Lewis’ defense team did not have these reports at trial. The Roundup recently received them through a public records request.
The officers sent the memos to Police Chief Don Engler. Lewis’ defense team claimed that inconsistencies between these reports and the testimony officers gave at trial could have helped their case.
“Many of these inconsistencies are related to the key facts in dispute during the trial, such as whether the “take-down” of defendant was justified, whether defendant’s resistance was justified and how certain injuries occurred,” Cahill wrote in his order after the trial.
Lewis and the officers have given starkly different accounts.
Officers reported that Lewis continually yelled profanities and told officers to go away. When Lewis reportedly put his hand in his pocket, Ortiz ordered him to take it out.
When Lewis started to walk away, Ortiz grabbed Lewis and put him in a hold. Lewis started to swing “wildly” and Ortiz told the other officers they needed to get him on the ground, according to reports.
On the ground, Lewis then allegedly continued to struggle and Ortiz dropped his weight on Lewis, delivering several strikes to Lewis’ face while Deaton hit him twice in the leg.
Officers said they told Lewis repeatedly to stop, but Lewis continued to resist.
The officers reported that Lewis yelled he was not resisting. Deaton noted in his memo that Lewis only yelled this when his friend approached with a cell phone and said he was recording the incident.
After he was cuffed, Lewis reportedly continued to yell and struggle against officers. Officers said Lewis even smashed his head into the hood of Deaton’s patrol vehicle repeatedly, leaving a large dent.
At trial, defense lawyers said the officers overreacted and Lewis had acted in self-defense. They said the officers started the fight, escalated the use of force and slammed Lewis’ face into the hood of the vehicle.
The jury found Lewis had assaulted officers Deaton and Davies, but not Ortiz. They also found Lewis guilty of felony criminal damage based on Sgt. Garvin’s testimony that he thought it would probably cost more than $1,000 to fix the hood.
Just before sentencing, however, a probation investigation revealed police had a repair shop estimate for the hood for $719.04, making it misdemeanor damage even if the jury decided Lewis had slammed his own head into the hood.
The prosecutors had this estimate in their notebook, Cahill wrote in his vacating order.
Lewis’ defense team then discovered the witness statements from the three officers while working on a civil case against the town.
The Gila County Attorney’s Office acknowledged prosecutors had not disclosed the criminal damage estimate.
Cahill wrote that had the vehicle repair estimate been disclosed, Lewis would probably not have been found guilty of felony criminal damage.
“The state concedes it possessed some documents and cites mistake as the reason for failure to disclose,” Cahill wrote. “Additionally, the state argues that it did not have knowledge or possession of other documents prior to trial.”
Nonetheless, Cahill said prosecutors had to obtain all important evidence from police and disclose it to the defense.