Pool v. Superior Court In and For Pima County, 17041-SA

CourtSupreme Court of Arizona
Writing for the CourtFELDMAN; HOLOHAN
Citation139 Ariz. 98,677 P.2d 261
PartiesSteven Randall POOL and Bruce Kevin Phillips, Petitioners, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF PIMA and the Honorable Philip Fahringer, Judge of the Superior Court, Respondents, The STATE of Arizona, Real Party in Interest.
Docket NumberNo. 17041-SA,17041-SA
Decision Date04 January 1984
Nat Schaye, Tucson, for petitioner Pool
FELDMAN, Justice

Steven Pool (defendant) and Kevin Phillips (who received permission to intervene) were charged with "a violation of A.R.S. § 13-1802" (theft). At trial, defendant objected to the conduct of the prosecutor and moved for a mistrial; the motion was granted. The prosecution then obtained a second indictment, specifying other charges, which was dismissed without prejudice. The prosecution now seeks to try defendant on a new indictment. Defendant moved for dismissal on the grounds of double jeopardy and prosecutorial vindictiveness. The trial court denied his motion and defendant sought relief by special action. Since defendant has no adequate remedy by appeal and the question presented is of constitutional significance, we have accepted jurisdiction. We have jurisdiction pursuant to Rule 8, Rules of Procedure for Special Actions, 17A A.R.S., and Ariz. Const. art. 6, § 5.


On August 2, 1981, defendant and two friends, Kevin Phillips and John Francis, had been drinking for most of the day. They then called upon a mutual acquaintance, Robert Stone, and spent the evening at Stone's house, socializing and drinking. After the defendant and his two friends left the house, Stone discovered that some jewelry belonging to his housemate, Patricia Courtier, was missing. No one saw which of the three visitors took the jewelry. On August 3, defendant and Phillips visited a jewelry store and sold the stolen jewelry. The store proprietor told police that defendant was the seller. The check made by the proprietor for the purchase price was payable to defendant.

From the rather simple fact situation described, the obvious charge would have been that on or about August 2, defendant and Phillips controlled property of another with the intent to deprive the other of such property (A.R.S. § 13-1802(A)(1)), and that on or about August 3, they controlled property of another "knowing or having reason to know that the property was stolen." (Id., subsection (5)). The best procedure would have been to charge them with both. However, the State did not specify any particular subsection in its indictment and merely charged that defendant and Phillips "stole" jewelry on August 2, contrary to A.R.S. § 13-1802. The word of art used in the statute is "control"; neither "steal" nor "stole" is used in the statute.

As defendant's trial commenced, 1 his counsel's opening statement indicated that Phillips would testify and that the fair import of all the evidence in the case would show that, although defendant might have hindered prosecution 2 (a crime with which he had not been charged), he had not committed the crime with which he was charged.

The opening statement evidently angered the prosecutor. Though he made no objection at the time, the prosecutor later sought to ventilate his feelings to the court. The court lectured both attorneys on behavior and the trial proceeded. Phillips was called and refused to testify. The proprietor of the jewelry store, Corey Tennen, testified and identified the defendant as the person who had sold the jewelry. The defendant took the stand and testified that he had sold the jewelry, but said he had done it for Kevin Phillips, not knowing, at the time, where Phillips had obtained the jewelry. Since Phillips had claimed the fifth amendment privilege, there was no way in which the prosecution could contradict this statement. Other problems afflicted the State's case. The authorities had recovered the jewelry from the jewelry store, but had returned it to the owner. The jewelry which had been taken included several gold rings, but the indictment referred to them as silver. The prosecutor had asked the owner of the jewelry to have It was in this context that the prosecutor commenced cross-examination of the defendant. Portions of that cross-examination were proper, other portions only arguably proper, and still others irrelevant and rather prejudicial. These tactics did not seem to help the prosecution. So far as can be ascertained from the dry record, the defendant appears to be one of those witnesses who is either truthful, convincing, or both, and handled the questions fairly well. This evidently did not improve the prosecutor's state of mind and the cross-examination moved from the irrelevant and prejudicial to the egregiously improper.

                the jewelry appraised. 3  The appraisal was above $1,000, but Tennen, who had bought the jewelry, testified that it was probably worth less than $1,000.  The indictment charged defendant with stealing on August 2, but there was no direct proof of that.  It was obvious from the evidence that the best course would have been to charge defendant with controlling property on August 3 "having reason to know" that it was stolen

After the cross-examination of the defendant, the trial judge allowed the prosecutor to amend the indictment to describe the stolen articles accurately. Defense counsel then complained about several specific questions and the general demeanor of the prosecutor. The trial judge asked defense counsel if he were moving for a mistrial, and such a motion was made. It was denied.

The next day, the prosecutor presented an amended indictment to the court. In addition to properly describing the stolen items, the amended indictment also charged defendant with having stolen "and/or" controlled property on August 2 and August 3. Defense counsel objected, averring that he had no notice under the original indictment that his client would be charged with anything other than stealing property on August 2, and that a charge of "controlling" property on August 3 was one which contained different elements because of the difference in mental states between § 13-1802(A)(1) (intent to deprive) and subsection (A)(5) (control of property "knowing or having reason to know it is stolen"). The defense argued that the case it had presented rested on defendant's lack of intent to deprive. 4 The prosecutor answered the objections to his motion to amend as follows:

I'll tell you what is going to happen if ... the court doesn't do it [allow the amendment], I'll take the case back to the grand jury and charge him with theft on the 3rd. We'll go through it again. I'm not saying that's a threat, but that's probably what's going to happen.

The dialogue which followed seems to indicate that the trial judge was convinced that the prosecution was now attempting to charge two separate offenses. At this point the judge sua sponte revisited and granted the defense motion for a mistrial made the previous day. 5 The prosecutor worried that the court might believe that he had "intentionally mistried the case." The trial judge said, "By no means," and added that it was not a propitious time to rule on any double jeopardy issue.

The court did not grant the motion to amend. The prosecutor returned to the grand jury, as predicted, and obtained a new indictment, CR-09455, again naming Pool and Phillips as codefendants. The new indictment alleged the elements of both subsections (1) and (5) of the theft statute and charged criminal acts on both August 2 and August 3. However, the prosecution created a new problem by charging different acts, which took place on different days, in one count. The trial judge dismissed this indictment, without prejudice, as duplicitous. See Rule 13.3(a), Rules of Crim.Proc., 17 A.R.S., which prohibits charging more than one offense in a single count. The prosecutor again returned to the grand jury. This time he obtained a two-count indictment, CR-10391, which more accurately conformed to the trial judge's view of the differences between the two subsections of the statute. The latest indictment charges defendant and Phillips in separate counts with violations of A.R.S. § 13-1802(A)(1) and (A)(5), although, through what appears to be a typographical error, the wrong statute was cited in count two.

The case was reassigned from Judge Carruth, the trial judge, to Judge Fahringer. The defense moved for dismissal, arguing that the mistrial had been caused by prosecutorial misconduct and that, therefore, jeopardy attached and prevented retrial. A similar motion had already been heard and denied by the trial judge, who had stated on the record that the prosecutor "did not intentionally create an atmosphere in which a mistrial would have to be declared" and that the "atmosphere" of the trial was "perhaps ... the result of the combined inexperience of both lawyers." Adopting that finding without reviewing the record, Judge Fahringer denied the motion. After reviewing the record, and taking additional testimony, he denied a similar motion on the ground of prosecutorial vindictiveness in obtaining the new indictment under CR-10391. The defense then filed its special action in this court, and we stayed further proceedings.

Defendant claims that the prosecutor intentionally pursued a course of conduct designed to mis-try the case and extricate the State from the position in which its own errors had placed it. Therefore, defendant argues, the mistrial was the result of deliberate prosecutorial misconduct and the concept of double jeopardy mandates dismissal of the new indictment. As further grounds for dismissal, defendant claims that the new indictment is the result of prosecutorial vindictiveness. The State relies on...

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