771 P.2d 1382 (Ariz. 1989), CR-88-0012, State v. Carver

Docket Nº:CR-88-0012-T/AP.
Citation:771 P.2d 1382, 160 Ariz. 167
Opinion Judge:[10] Gordon
Party Name:STATE of Arizona, Appellee, v. Stewart Bradley CARVER, Appellant.
Attorney:[7] Robert K. Corbin, Atty. Gen., William J. Schafer, III, Chief Counsel, Crim. Div., Joseph T. Maziarz, Asst. Atty. Gen., Phoenix, for appellee. [8] John C. Williams, Prescott, for appellant.
Case Date:April 11, 1989
Court:Supreme Court of Arizona
 
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Page 1382

771 P.2d 1382 (Ariz. 1989)

160 Ariz. 167

STATE of Arizona, Appellee,

v.

Stewart Bradley CARVER, Appellant.

No. CR-88-0012-T/AP.

Supreme Court of Arizona.

April 11, 1989

Page 1383

In Banc.

Page 1384

[160 Ariz. 169] Robert K. Corbin, Atty. Gen., William J. Schafer, III, Chief Counsel, Crim. Div., Joseph T. Maziarz, Asst. Atty. Gen., Phoenix, for appellee.

John C. Williams, Prescott, for appellant.

GORDON, Chief Justice.

JURISDICTION

The jury convicted defendant, Stewart B. Carver, of armed robbery, kidnapping, and sexual assault. Carver was on probation when these offenses occurred. Carver admitted to four prior felony convictions: two for theft, one for escape from custody, and one for criminal trespass. Pursuant to A.R.S. § 13-604.02(A), the trial court sentenced him to life imprisonment for the armed robbery conviction. He received concurrent sentences of 28 years each for the kidnapping and sexual assault convictions, which the trial court ordered to run consecutively to the life sentence. This Court has jurisdiction pursuant to article 6, § 5(3) of the Arizona Constitution and A.R.S. §§ 13-4031 and -4033.

ISSUES

Did defense counsel waive his claim of bias and prejudice against the trial judge because he failed to file a motion for a change of judge?

Under the facts and circumstances of this case, should the trial judge have recused himself after an improper attempt to influence him occurred?

Does defense counsel's failure to file a motion for change of judge constitute ineffective assistance of counsel?

In his brief, defense counsel lists additional issues, without argument, concerning defendant's prior convictions, the jury's failure to specifically find dangerousness on the armed robbery count, and the trial court's denial of lesser-included offense instructions. Does defense counsel's failure to present argument on these issues constitute abandonment of them and if not, do these issues present a valid claim that would warrant a new trial?

FACTS

On April 14, 1986, defendant attacked the victim outside her office at the State Bar building, 363 N. First Avenue, Phoenix, Arizona. The victim was an employee of the Administrative Offices of the Arizona Supreme Court. She left her office at 8:00 p.m. that evening. As she was getting into her car, defendant pushed her from behind in an attempt to force her into the car. When the victim fought back, he began punching her in the face and head. She screamed for help. He grabbed her throat and began choking her. When he held a knife to her throat, she no longer resisted. He forced her into the car and down across the front seat with her head in his lap. He drove off, still holding the knife to her throat.

Defendant stated that he needed to get to Las Vegas because four men from the Cowgirls Bar were after him. The Cowgirls Bar is on Central Avenue in Phoenix, directly behind the State Bar building. They drove north towards Prescott, making several stops for gasoline and cold drinks. In a deserted area outside Prescott, defendant stopped the car and forced the victim to have sexual intercourse with him. After stopping for gas at a Circle K, and taking

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[160 Ariz. 170] her car and money from her purse, he finally let her go. The ordeal lasted approximately 6 hours.

The victim noted that defendant had a speech impediment in that he had difficulty pronouncing the letter "r." She later identified defendant in a photographic lineup. The Circle K clerk also identified defendant in another photographic lineup. Police recovered defendant's jacket at the Cowgirls Bar. Documents found inside the jacket identified defendant and indicated that he was on probation, having been released from the Maricopa County Jail that morning.

On October 17, 1986, police found the victim's car locked and abandoned in Sedalia, Missouri, near defendant's home town. Authorities positively identified defendant's fingerprints on a number of items in the car, including the vehicle registration slip, some styrofoam cups and an STP can. Defendant testified that the jacket was his and acknowledged his difficulty pronouncing the letter "r" because of missing teeth. He admitted to four prior felony convictions, but denied any participation in the events of April 14, 1986. He claimed that he was on a bus to Washington at the time and that he had remained in Washington until his arrest. Defendant offered no explanation on how his fingerprints got on the items in the car found in Missouri.

PRETRIAL EVENTS

The record reflects that numerous delays plagued this case from the very beginning. Initially, the trial court appointed Lawrence Katz to represent the defendant. The court set the trial date for May 6, 1987. By July 30, 1987, when Katz filed his motion to withdraw for ethical considerations, the court had already granted five continuances--three requested by Katz and two requested by the State (one because the victim would be out of town on the scheduled trial date, the other because the prosecutor would be out of town). On August 6, 1987, the court granted Katz's motion to withdraw as attorney of record and appointed William Kiger as defense counsel. Because the trial date was then scheduled for September 1, 1987, the court granted Kiger's motion for continuance and rescheduled the trial for September 29, 1987. The court later granted Kiger's second request for a continuance and reset the trial date for October 27, 1987.

On October 19, 1987, Kiger requested yet another continuance, his third, and the eighth on the case. This time, the court heard oral argument on the motion. Kiger requested the continuance to further his investigation in Missouri. Apparently, his client now alleged that because of his prior convictions in Missouri, police had launched a conspiracy against him and somehow planted his fingerprints in the car. Purportedly, Kiger requested the continuance to go to Missouri, examine police security at the impound yard, and follow up on these allegations. The court determined that this was an insufficient basis for yet another continuance and denied the motion. However, before trial, the court allowed Kiger to interview Missouri police officers concerning the chain of custody and vehicle access after the police impound and offered to grant brief recesses or continuances during the course of the trial if necessary.

On the morning of trial, the attorneys met with the judge in chambers. Following a discussion of preparatory trial matters, Kiger advised the judge that he had heard rumors that someone from the Arizona Supreme Court contacted the trial court in an attempt to exert influence and see to it that the court deny any further continuances. The trial judge responded with candor. He relayed that, a few weeks earlier, the Yavapai county presiding judge called him into his chambers to discuss the case. The presiding judge stated that someone from the Arizona Supreme Court contacted him and urged that no further continuances be granted, that the case needed to go to trial, and that the victim was suffering. The presiding judge made it clear that these were his views as well. The trial judge became angered by this attempt at improper influence and avowed

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[160 Ariz. 171] that he would make all decisions and determinations regarding the case based on the merits. When Kiger filed his third motion for continuance, the trial judge stated that he set this incident aside, carefully reviewed the record, and determined that the circumstances did not warrant another continuance.

Following the extensive explanation by the trial judge, Kiger apologized for bringing the matter up, but indicated that he did so only in his client's best interests. He made no motion for change of judge, and the trial began moments later.

The record does not establish what actually occurred and because of our concern over the suggestion that some member of this Court or its staff by ex parte contact attempted to influence the superior court, this Court conducted an internal investigation. Our investigation revealed that a supervisory member of the nonlegal staff of this Court, acting out of concern over the welfare and morale of the Court's administrative employees, actually spoke to the presiding judge of the Yavapai County Superior Court and indicated his desire that the matter be brought to trial as soon as possible. While the concern of the supervisor is understandable, his comment was quite improper. The comment was not prompted by any communication from any justice on this Court or the Court's legal staff. We notified the administrative staff that any such communications, even from members of this Court, would be entirely improper.

The record in the proceedings below reflects the trial judge's response to the pressure exerted by transmission of the supervisor's comment. We attach a copy of the pertinent portion of the transcript as an appendix to this...

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