Quinton v. Superior Court of State In and For County of Mohave

• Decision Date: 19 February 1991
• Docket Number: No. 1,CA-SA,1
• Parties: Timothy Price QUINTON, Petitioner, v. SUPERIOR COURT OF the STATE of Arizona, In and For the COUNTY OF MOHAVE, the Honorable Leonard C. Langford, a judge thereof, Respondent Judge, William J. EKSTROM, Jr., Mohave County Attorney, Real Party in Interest. 90-224.
• Court: Arizona Court of Appeals

Page 914

815 P.2d 914

168 Ariz. 545

Timothy Price QUINTON, Petitioner, v. SUPERIOR COURT OF the STATE of Arizona, In and For the COUNTY OF MOHAVE, the Honorable Leonard C. Langford, a judge thereof, Respondent Judge, William J. EKSTROM, Jr., Mohave County Attorney, Real Party in Interest.

No. 1 CA-SA 90-224.

Court of Appeals of Arizona,

Division 1, Department E.

Feb. 19, 1991.

Review Denied Sept. 12, 1991.

[168 Ariz. 546] M. Ruth O'Neill, Mohave County Legal Defender, Kingman, for petitioner.

William J. Ekstrom, Jr., Mohave County Atty. by Robert R. Moon, Deputy County Atty., Kingman, for real party in interest.

Grant Wood, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Crim. Div., Phoenix, for respondent.

OPINION

CLABORNE, Judge.

Timothy Price Quinton (defendant) was indicted for kidnapping and custodial interference, convicted by a jury, and sentenced to thirty years in prison. Before sentencing, but after this first indictment, the defendant was indicted for first degree murder and is awaiting trial on that charge. Defendant claims that the subsequent murder prosecution violates his state and federal constitutional double jeopardy rights ¹ because the victim and the conduct involved in the kidnapping ² are the same victim and the same conduct to be proved in the prosecution of the first degree murder case. Defendant moved to dismiss the murder prosecution on this sole ground. The trial court denied the motion. Defendant now brings this special action.

There is no right of appeal from the denial of a motion to dismiss a prosecution. See State v. Whitney, 108 Ariz. 277, 278, 496 P.2d 138, 139 (1972); Amos v. Bowen, 143 Ariz. 324, 327, 693 P.2d 979, 982 (App.1984). For this reason, we accept jurisdiction of this special action. Nelson v. Roylston, 137 Ariz. 272, 273, 669 P.2d 1349, 1350 (App.1983). ³ See Rules 3(c) and 8(a), Arizona Rules of Procedure for Special Actions. For the reasons set forth, we grant relief.

FACTS

Rebecca Lanning did not return to her family's campsite on the bank of the Colorado River in Mohave County on a night in September of 1989. She had been seen with the defendant before her disappearance. Her dead body was discovered in a dump some seventeen days later. The defendant was arrested on October 7, 1989. On October 26, 1989, a Mohave County Grand Jury indicted and charged him with kidnapping and custodial interference. The defendant's trial was to commence on June 4, 1990.

On May 17, 1990, the Mohave County Grand Jury indicted the defendant and charged him with the first degree murder of Rebecca Lanning pursuant to A.R.S. § 13-1105. ⁴ The facts presented to each grand jury to obtain both indictments were virtually identical. When the defendant was arraigned on the murder charge on May 25, 1990, both the trial court and the prosecutor were informed that the private attorneys representing defendant on the kidnapping and custodial interference charges would not be defending him on the first degree murder charge. Although there was some discussion between the Mohave County Attorney's office and the public defender's office, which had been assigned to defend the defendant on the murder charge, about a continuance of the June 4 trial date or a consolidation of the two indictments, no formal motions were filed. The defendant was tried for kidnapping on June 4, 1990.

The state's case concerning the kidnapping of Rebecca Lanning was circumstantial. Its two main ingredients were (1) the defendant was seen with Rebecca Lanning before her disappearance and (2) she was later found dead. The state's theory under the kidnapping statute, A.R.S. § 13-1304, was that the defendant knowingly restrained Rebecca Lanning with the intent to inflict death. ⁵ The state proved the death of the child, introduced pictures of her body, and argued that the defendant had killed her. The jury convicted the defendant of kidnapping. The trial court sentenced him to thirty years in prison.

After the sentencing, the public defender moved to dismiss the murder indictment on the grounds of double jeopardy. During the oral argument on the motion to dismiss, the following colloquy between the deputy county attorney and the trial court occurred:

THE COURT: Okay. Mr. Moon, I had a question. Do you agree that your evidence at the murder trial will be basically a replay of the evidence at the other trial?

MR. MOON: It would be a lot of replay; however, some of the things that were precluded in the kidnapping trial I would hope to be able to get admitted into the murder trial. In addition, there was some knew [sic] information we received about halfway through the kidnapping trial about a statement allegedly made by the Defendant, and in fact I had rested when the information came to my--came to me and I would have had to try to reopen my case in chief to present this; and that again turned out to be maybe not as crystal clear as it was initially reported to me--seems like everything in this case has been that way--but there would be--just about everything I presented in the first case would be presented again, and hopefully there would be some additional evidence. One other procedure--

THE COURT: Just a second. The items you said were precluded, these are matters you wanted to present at the kidnapping trial, and so it sounds like it's just evidence that you used at the kidnap trial would be the only evidence that would be presented at the murder trial plus in addition evidence that you tried to get in at the kidnapping trial but couldn't. Doesn't sound like you'll have anything different in the way of evidence than what you used or wanted to use in the kidnap trial other than the--

MR. MOON: Other than the one item that came to my attention after I had rested.

THE COURT: That's something you wanted to use at this--at the kidnapping trial but it was too late?

MR. MOON: It was too late. Of course, I didn't know about it until it was too late, that's correct.

THE COURT: So the scenario that this murder trial, if it goes on, is going to be the same as last time except the judge just goes through and pulls out the--puts in a murder instruction, takes out the one defining custodial interference and kidnapping.

MR. MOON: Well, that would be close to an accurate description, that is true, your Honor. The evidence that was precluded at the first trial was precluded because it pertains more to a murder charge, and Judge Pope ruled that it would be too prejudicial in a case where he was not charged with murder. That was--it wasn't for any search and seizure issues or anything along those lines. (Emphasis added.)

Clearly, the state intended not only to present basically the same evidence in the murder case, but also the conduct to be presented was going to be the same.

The trial court denied the motion and further found that even if the Double Jeopardy Clause were applicable, the defendant's counsel in the kidnapping matter and counsel in the murder case opposed consolidation of these charges at the trial which commenced on June 4, 1990.

DISCUSSION

The state's response to the contention that the first degree murder prosecution violates the double jeopardy rights of the defendant is twofold. First, the state contends that the claim of double jeopardy may be waived, and that the acts of defense counsel in failing to agree to a continuance or a consolidation of the two indictments constituted a waiver. There is no disagreement that the basis of this argument is the conversation between the prosecutor and the attorneys representing the defendant on both the kidnapping and the murder charges. The state did not file a formal motion to continue or to consolidate. Nor does the record indicate that the court or the defendant knew of the state's verbal request to consolidate before the kidnapping trial.

Second, the state contends that the prosecution for kidnapping is not the "same offense" within the meaning of the double jeopardy prohibition. We disagree with both contentions.

A. Did the Defendant Waive His Double Jeopardy Rights by Not Agreeing to a Consolidation of the Two Indictments?

Our courts have long held that we should indulge every reasonable presumption against a waiver of a fundamental constitutional right. See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); State v. Anderson, 96 Ariz. 123, 131, 392 P.2d 784, 790 (1964). Just as well-recognized is the definition of waiver: the intentional relinquishment or abandonment of a known right. Anderson, 96 Ariz. at 131, 392 P.2d at 790. In dealing with waivers of constitutional rights in criminal cases, the defendant's waiver must be voluntarily, knowingly and intelligently made. See United States v. Cochran, 770 F.2d 850, 851 (9th Cir.1985). See also State v. Superior Court, 105 Ariz. 553, 555, 468 P.2d 580, 582 (1970). Finally, because of the importance of the right being waived, the waiver must be express rather than implied. Menna v. New York, 423 U.S. 61, 62-63, 96 S.Ct. 241, 242, 46 L.Ed.2d 195 (1975).

Yet, the first question we must address is whether the defendant even had an opportunity to waive his double jeopardy right in the first instance. The record is confusing. The trial court's minute entry denying the defendant's motion to dismiss indicates that "Defendant's counsel in cause number CR-11399, the kidnapping and custodial interference matter, and counsel in cause number CR-11525, the murder case, opposed the consolidation of these charges at the trial which commenced June 4, 1990, before Judge Pope in cause number CR-11399." The affidavit of the deputy county attorney who was responsible for the prosecution of both cases reveals that the issue of consolidation and a continuance was informally discussed with the attorneys representing the defendant in both cases. ⁶ The record also reveals that the prosecutor failed to undertake the procedure--a motion--that would require a formal response by the defendant and...