THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

GEMMILL, Judge.

¶ 1 Defendant Abel Lozano Mosqueda appeals his convictions and sentences for kidnapping and theft by extortion. He contends the trial court erred by not dismissing this case for a purported violation of Brady v. Maryland, 373 U.S. 83 (1963). He also asserts the court unconstitutionally limited his cross-examination of the victim and a witness. Finally, he argues this case should have been dismissed because his treatment while in custody violated his due process rights. We affirm.

BACKGROUND1

¶ 2 On January 8, 2009, Mosqueda and two other men forced the victim at gunpoint into Mosqueda's vehicle and transported him to a vacant home in Mesa. The kidnappers demanded money from the victim's family and friends in return for his release. As police officers and the victim's friend, A., were following the kidnappers' directions to conduct the money drop, officers arrested the suspects, including Mosqueda. The victim was subsequently located, and he identified Mosqueda in a photographic lineup as one of the suspects.

¶ 3 Mosqueda was charged, tried jointly with other co-defendants, and convicted of kidnapping and theft by extortion, both class two felonies and dangerous offenses. The trial court sentenced Mosqueda to consecutive terms of 10.5 years' imprisonment for each conviction. Mosqueda appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003), 13-4031 (2010) and -4033(A)(1) (2010).2

ANALYSIS

I. The victim's immigration status

¶ 4 During voir dire, Mosqueda unsuccessfully moved to dismiss on the basis that the State failed to timely disclose the victim's and A.'s illegal immigration status. Mosqueda argues that the trial court's denial of the motion constitutes an abuse of discretion in violation of Brady. 373 U.S. at 83. See State v. Medrano, 173 Ariz. 393, 399, 844 P.2d 560, 566 (1992) (reviewing the trial court's decision regarding a purported Brady violation for abuse of discretion). We find no error.

¶ 5 Brady established that criminal defendants have a due process right to timely disclosure of material evidence. State v. Gulbrandson, 184 Ariz. 46, 63, 906 P.2d 579, 596 (1995). The record reflects the victim's and A.'s immigration status first became an issue on January 14, 2010 in the context of appropriate questions to ask potential jurors during voir dire. On the following trial day, the prosecutor informed the court and Mosqueda that he had learned after the previous trial day that A. and the victim "do not have status in the United States." This disclosure was therefore timely. See id. at 62-63.

¶ 6 Furthermore, we note that Mosqueda and a co-defendant elicited trial testimony from the victim regarding his illegal presence in the United States.3 See State v. Bracy, 145 Ariz. 520, 528, 703 P.2d 464, 472 (1985) ("When previously undisclosed exculpatory information is revealed at the trial and presented to the jury, there is no Brady violation.").

¶ 7 For these reasons, the court did not abuse its discretion in denying the motion to dismiss for this purported Brady violation.4

II. Jail conditions

¶ 8 During a break in the presentation of opening statements, defendants moved for a mistrial on the basis that they were receiving inadequate food and opportunities to sleep while in custody. Defense counsel described Mosqueda as "falling asleep, head in [his] hands, you know, head down, having this dejected look[,] " and thus, to the jury, counsel argued he appeared to have "giv[en] up." The trial court disagreed with this description, stating:

Based on these observations, the court denied the mistrial motion. Nonetheless, the court recessed early "to alleviate any physical and mental fatigue that [defendants] may be exhibiting today."

¶ 9 Further, the court held a hearing the following trial day where the sheriff's counsel described the procedures for transporting and feeding in-custody defendants. Sheriff's counsel categorically denied that the defendants were not offered sustenance or the opportunity to sleep. The trial judge and the attorneys then personally toured "the facility" that day before resuming opening statements, and sheriff's counsel agreed to investigate sleep and feeding issues specific to the defendants during the previous two weeks.5

¶ 10 Mosqueda contends that the trial court abused its discretion in denying the motion for mistrial because his lack of adequate food and sleep while in custody amounted to a due process violation. We disagree.

¶ 11 "A declaration of a mistrial is the most dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted." State v. Adamson, 136 Ariz. 250, 262, 665 P.2d 972, 984 (1983). A trial court's denial of a mistrial motion is reversible only if it is "palpably improper and clearly injurious." State v. Walton, 159 Ariz. 571, 581, 769 P.2d 1017, 1027 (1989). This court has previously noted that the rationale for affording a trial court discretion in deciding whether to order a mistrial — at least in cases alleging prosecutorial misconduct — is that the trial court is in the best position to determine what effect if any the purported error had on the jury. See, e.g., State v. Blackman, 201 Ariz. 527, 545, ¶ 76, 38 P.3d 1192, 1210 (App. 2002).

¶ 12 Applying that rationale here, we find no abuse of discretion in the court's denial of the motion for mistrial. The court found that Mosqueda appeared alert and whatever hunger or tiredness he exhibited at trial did not negatively impact the jury. Additionally, the court recessed trial early to alleviate whatever fatigue Mosqueda may have been experiencing the day the motion was made, and the court took appropriate measures to ensure he was afforded adequate opportunities to eat and sleep while in custody. On this record, we do not discern reversible error in denying the mistrial motion.

CONCLUSION

¶ 13 Mosqueda's convictions and sentences are affirmed.

JON W. THOMPSON, Presiding Judge, and MAURICE PORTLEY, Judge, concurring.