Judge Ted Reed dismissed the conviction against a man found guilty of assault after prosecutor Paul Rubin did not inform the court that the victim was drunk while he testified to a Coconino County jury.

Legal defender Lindsay Smith filed a motion last week demanding Reed grant a retrial or dismiss the conviction after finding out that a bailiff had conducted a breathalyzer test on the victim and found he blew a .226% blood alcohol concentration before testifying. The prosecutor did not disclose to the court or defense attorney the fact that the victim was intoxicated, leaving the defense to claim the prosecutor allowed perjury.

The State Bar of Arizona’s rules of professional conduct instructs lawyers to act honestly within the court system, and instructs lawyers to fix errors if they know evidence to be incorrect.

“The County Attorney’s Office has no quarrel with the judge’s final ruling,” Coconino County Attorney Bill Ring said to the Arizona Daily Sun.

Luis Alvin had originally been charged with felony aggravated assault against victim Nathan Jim in the case, and was found guilty by a jury of misdemeanor assault. When Alvin was told that the case against him was dismissed with prejudice, he smiled and clapped in the courtroom. After two years of court proceedings and his now-cleared record, Alvin said he was going to do his best to stay out of the criminal justice system.

“I was nervous, but I was confident that Ms. Smith was going to defend me by any means that were within the realm of [what’s] legal — unlike the state,” Alvin said. “I’m very happy and grateful.”

The case began in 2017, after what was described as a joke escalated into an altercation between Jim and Alvin at the Northern Pines restaurant on Butler Avenue. Video evidence of the altercation included in a Flagstaff Police Department report showed Alvin choking Jim and then punching him outside the frame of the camera. However, without any audio recording, the question of whether Alvin acted in self-defense depended on the victim’s testimony of how the fight broke out.

Then during the trial on Oct. 10, bailiff Eli Navarro tested the victim's intoxication levels in the courthouse and the victim measured a .226% blood alcohol concentration. Navarro then testified that he informed the prosecutor of the test and its result.

The prosecutor did not disclose the information to other members of the court and allowed the trial to continue. In front of the jury, when Smith asked the victim whether or not he had drank alcohol in the past 24 hours, Jim said he had not. Smith asked again, and the victim declined again.

After the witness left the stand, the trial continued and a jury found Alvin guilty on an assault charge.

A few days after the trial, Smith filed a motion asking for the judge to go back and dismiss the conviction.

In the motion, Smith alleged Rubin had suborned perjury by allowing Jim to deny having a drink 24 hours before his testimony. She also argued the prosecutor’s actions impacted Alvin’s constitutional right to a fair trial.

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In his filed response, Rubin acknowledged his decision “inadvertently suppressed evidence” that would have helped the defendant, and called it an error. However, he argued the victim’s intoxication did not impact the outcome of the trial because the jurors watched the video and saw the attack for themselves.

At the hearing last Thursday, two police officers trained in how to identify people who are intoxicated testified that they suspected Jim was intoxicated. Navarro also testified to conducting the test.

The judge explained that because the charges required Alvin to know he was going to injure the victim, the victim’s testimony about what was said between the two was critical. The victim’s decision to appear drunk, and the prosecutor’s decision to allow him to mislead the jury, damaged the victim’s credibility, Reed said.

“There is reasonable probability that had the evidence been disclosed to the defense, the result in the proceedings would have been different,” Reed said as he dismissed the case.

Smith said the actions of the prosecutor in this case just felt wrong to her.

"Nobody is going to say there's not a lot of problems with our criminal justice system, but today we saw one of the good parts of our system," Smith said to the Arizona Daily Sun. "You get good convictions. And if you don't, you're going to have to answer for it."

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Scott Buffon can be reached at sbuffon@azdailysun.com, on Twitter @scottbuffon or by phone at (928) 556-2250.


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