Nalbandian v. Superior Court In and For County of Maricopa, s. 1

Decision Date27 June 1989
Docket NumberNos. 1,CA-CR,CA-SA,s. 1
Citation163 Ariz. 126,786 P.2d 977
PartiesJames Peter NALBANDIAN, Petitioner-Appellant, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, The Honorable Barry G. Silverman, a judge thereof, Respondent Judge, Robert K. CORBIN, Attorney General of the State of Arizona, Real Party in Interest. STATE of Arizona, Appellee, v. James Peter NALBANDIAN, Appellant. 88-160, 188-760.
CourtArizona Court of Appeals
OPINION

JACOBSON, Presiding Judge.

This case involves whether a defendant is entitled to an interlocutory appeal when a plea of double jeopardy is raised. James Peter Nalbandian (defendant) appealed from the trial court's denial of his motion for a directed verdict of not guilty "pursuant to Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977)." The trial court refused to recognize his notice of appeal and proceeded to set a firm trial date. Defendant filed a special action petition challenging only the trial court's refusal to enter a stay of the proceedings, contending that a right to appeal on double jeopardy grounds existed even though the trial court's denial did not constitute a final judgment. We granted defendant's request for a stay and, on our own motion, consolidated the special action and appeal ordering the parties to respond to the following issues:

(1) Whether this court should recognize the United States Supreme Court concept that a defendant is entitled to interlocutory review of a decision of the trial court ordering a new trial when the defendant makes legitimate claims that his constitutional rights against double jeopardy may be infringed by a second trial (2) Whether the right to review is constitutionally or statutorily based;

(3) Whether such review should be undertaken by special action or appeal;

(4) Whether in this case, the trial court improperly denied defendant's motion for a verdict of not guilty and thus erred in declaring a mistrial.

I. BACKGROUND

Defendant's case went to the jury after a three week trial. During deliberation, the jurors made a number of inquiries to the court. After requesting a copy of the transcript, which was refused, and after an additional six hours of deliberation, the jurors communicated to the court that the panel could not reach a decision "with the facts provided." Defendant moved for a mistrial, stating "I think they have had adequate time to deliberate and reach a verdict...." The court asked the foreman if he believed the jury could reach a verdict with additional time. The foreman replied that he believed they could, but three jurors disagreed. The trial court then instructed the jurors that they should continue deliberating for about an hour. Defendant moved for mistrial once again. The jurors then sent two notes to the court. The first, signed by one juror, stated:

All eight of us feel that the state did not prove that Jim did the abuse. But two people think he probably did do it (A gut feeling). They do not want him to go free. [Signature of juror]

The second note stated:

If there is any additional evidence, may we see it?

The court responded that no additional evidence existed and that the jury should continue to deliberate. Defendant then withdrew his motion for a mistrial and requested that the court enter a verdict of not guilty in response to the signed note.

After the jury deliberated about an hour, the court reconvened. The foreman related that the jurors were unable to reach a decision. Defendant again requested a directed verdict, or alternatively, that the court read the signed note to the jury and poll the jurors to determine whether they established a unanimous verdict of not guilty. The court denied his requests and asked the jury to continue to deliberate for another half an hour. Defendant objected. After a half hour had elapsed, the court asked the foreman if the jury had reached a verdict. The foreman responded that it had not. None of the jurors disagreed. The court then declared a mistrial "because the jury [was] hung," set the case for retrial, and dismissed the jury. Subsequently, defendant filed a motion for entry of a verdict of not guilty. The court denied the motion. This special action and appeal ensued.

II. DISCUSSION

When defendant filed his notice of appeal, he claimed it divested the trial court of jurisdiction. See Rule 31.11, Arizona Rules of Criminal Procedure; State v. Ferguson, 119 Ariz. 55, 579 P.2d 559 (1978). The trial court requested further briefing on a defendant's right to an interlocutory appeal when the basis of the appeal implicates double jeopardy grounds. The trial court concluded that defendant had no right to appeal in the absence of a final judgment and refused to stay the new trial.

Defendant sought relief by special action from only the trial court's refusal to stay the proceedings. He failed to bring the issue of the right to an interlocutory appeal squarely before this court at that time. We therefore consolidated the special action with the appeal to address the double jeopardy issue, and, if we determined that review was appropriate, to address the defendant's contention that a second trial would impermissibly put him in jeopardy once again.

A. The Holding in Abney v. United States.

Ordinarily interlocutory appeals are not permitted in criminal cases. "[T]he delays and disruptions attendant upon intermediate appeal are especially inimical to the effective and fair administration of the criminal law." Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), quoting DiBella v. United States 369 U.S. 121, 126, 82 S.Ct. 654, 658, 7 L.Ed.2d 614 (1962). Despite the unsettling and potentially damaging effect of such appeals, in Abney, the Supreme Court held a defendant had the right to appeal because:

[e]ven if the accused is acquitted, or, if convicted, has his conviction ultimately reversed on double jeopardy grounds, he has still been forced to endure a trial that the double jeopardy clause was designed to prohibit. Consequently, if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs. 1

B. Is the Abney Right to Appeal Statutorily or Constitutionally Based?

Defendant claims Abney controls in this case because the Supreme Court has held that the fifth amendment protection against double jeopardy applies to the states. See Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). He also cites State v. Choate, 151 Ariz. 57, 725 P.2d 764 (App.1986), in which the court found it had jurisdiction to review an interlocutory order implicating double jeopardy on appeal, pursuant to Abney.

On the other hand, the state contends Abney merely construed a federal statutory right to appeal and therefore does not control when this court is construing a defendant's right under Arizona law. It argues defendant's reliance on both Abney and Choate is misplaced and claims that in Arizona a defendant may seek appellate review only under the criteria set forth in A.R.S. § 13-4033. 2 Thus, the state argues, a defendant is precluded from appealing from an interlocutory order. The state asserts that Abney also found a defendant's right to appeal must be established solely within the terms of the applicable statute because no federal constitutional right to an appeal exists. 3

We disagree. As the holding in Abney, quoted above, clearly indicates, the basis for judicial review of a double jeopardy claim is grounded in the double jeopardy clause itself. The procedural problem facing federal courts, as well as state courts, is how that constitutional right can be exercised in view of final judgment statutes. See also United States v. Hollywood Motor Car Co., 458 U.S. 263, 102 S.Ct. 3081, 73 L.Ed.2d 754 (1982). We turn then to that procedural problem.

C. The Appropriate Vehicle For Appellate Review of a Interlocutory Double Jeopardy Claim: Special Action or Appeal?

As Abney indicates, the federal system, because of the lack of any other appellate vehicle, has had to shoe-horn nonfinal orders into a statute that requires finality as a prerequisite to appealability. See 28 U.S.C. § 1291 ("The courts of appeals shall have jurisdiction from all final decisions ..."). The tool to effect this result is the "collateral order" exception recognized in Cohen. Arizona need not struggle with this problem because an aggrieved party may seek appellate review of nonappealable interlocutory orders under the special action practice. See Rule 1(a), Arizona Rules of Procedure for Special Actions.

Other jurisdictions have utilized a similar procedure to avoid grappling with a "final judgment rule." The Kansas court, finding Kansas statutes did not provide the right to appeal, dismissed the defendant's appeal with "considerable reluctance." State v. Fisher, 2 Kan.App.2d 353, 579 P.2d 167 (1978). One year later, the Kansas court revisited the issue and found it unacceptable that a defendant "have no appellate forum available in the Kansas courts to vindicate a valid double jeopardy claim before he is in fact subjected to such jeopardy." In re Application of Berkowitz, 3 Kan.App.2d 726, 602 P.2d 99, 103 (1979). The court concluded that habeas corpus, a proceeding that afforded the defendant a "speedy remedy," was the appropriate vehicle for challenging a trial court's pretrial denial of a claim of double jeopardy. See also Ex parte Robinson, 641 S.W.2d 552 (Tex.Crim.App.1982) (finding constitutional...

To continue reading

Request your trial
31 cases
  • State v. Moody
    • United States
    • Arizona Supreme Court
    • August 9, 2004
    ...vehicle for a defendant to obtain judicial appellate review of an interlocutory double jeopardy claim." Nalbandian v. Superior Court, 163 Ariz. 126, 130, 786 P.2d 977, 981 (App.1989). The reasons underlying the preference for special action review of denials of motions to dismiss based on d......
  • People v. Torres
    • United States
    • Michigan Supreme Court
    • June 25, 1996
    ...Other states have held that Abney recognized a constitutional right to an immediate appeal. See Nalbandian v. Superior Court, 163 Ariz. 126, 128-129, 786 P.2d 977 (Ariz.App., 1989); Ex parte Robinson, 641 S.W.2d 552, 555 (Tex.Crim.App., 1982). We do not need to answer this question in resol......
  • Huff v. State
    • United States
    • Maryland Court of Appeals
    • September 1, 1991
    ...P.2d 764 (Ariz.App.1986), reached the same result by citing Abney, but without further analysis. See also Nalbandian v. Superior Court, 163 Ariz. 126, 786 P.2d 977, 981 (Ariz.App.1989) (the court disagreed with that portion of Choate that held that the double jeopardy claim could be heard o......
  • Martin v. Reinstein
    • United States
    • Arizona Court of Appeals
    • May 13, 1999
    ...jeopardy); Ferreira v. Superior Court, 189 Ariz. 4, 6-7, 938 P.2d 53, 55-56 (App.1996) (double jeopardy); Nalbandian v. Superior Court, 163 Ariz. 126, 130, 786 P.2d 977, 981 (App.1989) (double jeopardy); Davis v. Winkler, 164 Ariz. 342, 345, 793 P.2d 99, 102 (App.1990) (denial of bond). If ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT