State v. Armenta
| Decision Date | 06 November 1975 |
| Docket Number | No. 3239,3239 |
| Citation | 541 P.2d 1154,112 Ariz. 352 |
| Parties | STATE of Arizona, Appellee, v. Ernest Perez ARMENTA, Appellant. |
| Court | Arizona Supreme Court |
Bruce E. Babbitt, Atty. Gen., William J. Schafer III, Chief Counsel, Crim. Div., Georgia C. Butcher, Asst. Atty. Gen., Phoenix, for appellee.
Derickson & Kemper by James Hamilton Kemper, Phoenix, for appellant.
The appellant, Ernest P. Armenta, was convicted of selling heroin in violation of A.R.S. § 36--1002.02 and was sentenced to a term of from five years to five years and one day in the Arizona State Prison. We take jurisdiction of this case pursuant to Rule 47(e)(5), Rules of the Supreme Court.
The appellant's sole allegation of error is that he was denied his right under the Arizona Rules of Criminal Procedure and the Fourteenth Amendment to the United States Constitution to be present when the testimony of a prosecution witness, Glendale Police Officer Tony Garcia, was read to the jury during their deliberations. It is firmly established that '(o)ne of the most basic of the rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom at every stage of his trial.' Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). See Rule 19.2, Arizona Rules of Criminal Procedure, 17 A.R.S. This constitutional protection includes the right to be present when portions of the record are repeated at the request of the jury during their deliberations. Akins v. Cardwell, 500 F.2d 47 (9th Cir. 1974); Bustamante v. Eyman, 456 F.2d 269 (9th Cir. 1972).
A defendant may, however, waive his right to be present. In order to find a waiver it must be shown that the defendant had personal notice of the proceeding, that he was aware that he had a right to attend and that he had been informed that the proceeding would go forward in his absence should he fail to appear. State v. Tacon, 107 Ariz. 353, 488 P.2d 973 (1971), cert. dismissed 410 U.S. 351, 93 S.Ct. 998, 35 L.Ed.2d 346 (1973). Rule 9.1, Arizona Rules of Criminal Procedure, 17 A.R.S.
A survey of the record discloses that during the jury's deliberations on the first day of the trial the foreman submitted a note to the bailiff in which the jury inquired whether Officer Garcia had testified to certain facts concerning the alleged purchase of heroin from Armenta. The jury was then told that '(n) either the Court nor the lawyers can at this point make a comment on what the evidence is,' but that '(y)ou may request to have the testimony of certain witnesses or parties repeated by the Court Reporter.' Upon reading this the foreman responded '(t)hat's what we wanted.' The jury at that point adjourned for the evening without reaching a verdict. The proceedings were scheduled to resume at 9:00 a.m. the next morning.
When Armenta had failed to appear by 9:45 a.m. the court concluded that the defendant had waived his right to be present at the reading of the testimony and directed the court reporter to proceed in his absence. We find no error. Defense counsel acknowledged that he had told the defendant the...
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State v. Bible
...would continue if he left. See State v. Perez, 115 Ariz. 30, 31, 563 P.2d 285, 286 (1977) (citing cases); State v. Armenta, 112 Ariz. 352, 353, 541 P.2d 1154, 1155 (1975) (citing authority). By voluntarily leaving, Defendant waived his right to be present. Ariz.R.Crim.P. 9.1; see also Allen......
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State v. Swoopes
...of the record are repeated at the request of the jury during their deliberations.") (citations omitted); State v. Armenta, 112 Ariz. 352, 353, 541 P.2d 1154, 1155 (1975); State v. Sanchez, 130 Ariz. 295, 299, 635 P.2d 1217, 1221 (App.1981) ("[T]he reading of the testimony of a state's witne......
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State v. Jones
...104 S.Ct. 453, 455, 78 L.Ed.2d 267 (1983). Arizona has recognized, however, that the right may be waived. See State v. Armenta, 112 Ariz. 352, 353-54, 541 P.2d 1154, 1155-56 (1975). Jones argues, citing a number of cases from the federal circuit courts and this Court, that a defendant's rig......
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State v. Pawley
...regarding the evidence be answered, See State v. Perez, 115 Ariz. 30, 563 P.2d 285 (1977); State v. Robin, supra; State v. Armenta, 112 Ariz. 352, 541 P.2d 1154 (1975). In each of these cases, a personal confrontation occurs between the court and the jury potentially touching upon the funda......