State v. Betts

• Court: Arizona Court of Appeals
• Writing for the Court: STEVENS
• Citation: State v. Betts, 406 P.2d 229, 2 Ariz.App. 27 (Ariz. App. 1965)
• Decision Date: 05 October 1965
• Docket Number: No. 1,CA-CR,1
• Parties: STATE of Arizona, Appellee, v. R. L. BETTS, Appellant. * 34.

Page 229

406 P.2d 229

2 Ariz.App. 27

STATE of Arizona, Appellee, v. R. L. BETTS, Appellant. ^*

No. 1 CA-CR 34.

Court of Appeals of Arizona.

Oct. 5, 1965.

Darrell F. Smith, Atty. Gen., by Gary K. Nelson, Asst. Atty. Gen., for appellee.

Moore & Moore, by R. C. Moore, Phoenix, for appellant.

STEVENS, Chief Judge.

R. L. Betts was found guilty of the offense of receiving stolen property, a felony. He was also found guilty of criminal contempt of court, the claimed contempt arising out of the first trial of the felony case. He was sentenced in relation to both of these matters and appeals from both.

On the 15th of June 1963, the warehouse of Babbitt's Wholesale Hardware was burglarized. Guns and telescopic sights were taken. The felony charge against Betts accuses him of having received some of these items 'well knowing said property to have been stolen' and 'receiving the same knowingly * * for his own gain, and to prevent the owner * * * from possession of said property.'

Betts waived the preliminary hearing and appeared in the Superior Court on the date first scheduled for the arraignment with a Flagstaff attorney of his own choosing. On that date the arraignment was continued. When Betts next appeared for arraignment he advised the court that he had retained two Phoenix attorneys. There is no issue as to the proper arraignment. These attorneys appeared with him for the trial which commenced on the 20th day of February 1964. The trial continued throughout the day of the 20th, and on the morning of the 21st at 10:45, the State rested. A motion for directed verdict was made and denied. These matters are reflected in the minutes which then reflect the following entry, 'Counsel for defendant wishes to confer with the Court in chambers * * *'. The minutes reflect that later in the day all parties and the jury were present in the court room. The minutes continue,

'The Court inquires of the members of the jury if any of them have been contacted by William Armstrong, Jr., who is scheduled to be called as a character witness for the defendant. One male juror informs the Court that he spoke to Mr. Armstrong in the corridor that morning, and he assumes that the said Mr. Armstrong was aware of the fact that he was serving as a juror on this case. Thereupon, the jury is admonished and, BY ORDER OF THE COURT, recess is declared. * * * Comes now all parties as at previous session. The appearance of counsel, the defendant and the 12 jurors is noted. IT IS THE ORDER OF THIS COURT that this matter be declared a mistrial, as there is evidence of tampering with the jury; * * *'.

Thereafter, both Phoenix attorneys secured orders authorizing their withdrawal as attorneys of record.

On 5 March 1964, captioned in the Criminal Case, an affidavit by a Deputy County Attorney was filed charging that Betts, on or about the 19th of February, 'willfully attempted to improperly influence a member of the panel from which the jury was to be selected in the above entitled and captioned matter'. Judge Wren, the resident Superior Court Judge for Coconino County, the Judge who presided at the aforesaid jury trial, issued an order to show cause directed to Betts and the file reflects that the sheriff served the 'within summons and order to show cause in re contempt' upon Mr. Betts.

THE FELONY

In relation to the felony charge, Judge Wren called a special venire for the trial of that case only and requested that Judge Raul H. Castro of Pima County preside. The minutes reflect the following matters: that when the case was called for trial the defendant was present in propria persona; that both sides announced ready and the roll of the jury was called; that 'Defendant herewith waives the services of the jury and desires to submit the matter to the Court'; that the jury was excused; that the County Attorney made his opening statement; and that 'Defendant at this time requests the trial proceed without counsel and makes his statement to the Court'. The above matters are also reflected in the Reporter's Transcript and after the Judge excused the jury, he addressed the defendant and we find the following:

'Mr. Betts, I believe you told me you had a friend that wanted to sit with you, is that right?

'THE DEFENDANT: Yes, I do. He hasn't got here yet.

'THE COURT: Do you want to proceed without his services this morning?

'THE DEFENDANT: Yes, sir.

'THE COURT: Mr. Warden, with your opening statement, please, I think it might well be to apprise the Court of what the facts are in this case and what you intend to prove.'

Thereupon County Attorney Warden made his opening statement. Upon the conclusion of the opening statement the Reporter's Transcript continues as follows:

'THE COURT: I want the record to show the defendant is appearing impropria (sic) persona this morning, that this is the trial. * * *

'* * * the trial was had with the defendant sometime in February, wasn't it?

'MR. WARDEN: February 23rd 'THE COURT: February 23rd. That the Court declared a mistrial at that time.

'The defendant has been apprised of the trial setting; that he had counsel from Phoenix which has withdrawn. Furthermore, that he had negotiations with local counsel here in Flagstaff and up to yesterday, it was determined that counsel would not represent him, and the defendant requested that he may be allowed to proceed through his own representation.

'Now, Mr. Betts, at this time, the Court will allow you to make a statement to the Court advising the Court what you expect to prove in your case. You may do so. You may stand and advise the Court what you expect. * * *

'THE DEFENDANT: Your Honor, the only thing I want to show is that I didn't buy the guns knowing they were stolen. I bought the guns, but at the time, I did not know they were stolen.

'THE COURT: That will be your defense, is that right?

'THE DEFENDANT: Yes, sir.

'THE COURT: You may sit down.

'You may call your first witness, Mr. Warden.'

The trial proceeded and the defendant stipulated to many facts. Oral statements which were attributed to the defendant while he was in custody were received with no effort to lay a preliminary foundation as to the fact that they were voluntary and no objection being made by the defendant. Thereafter a limited foundation was laid as to the defendant's written statement. The written statement was prepared after the oral statements. Later the defendant testified. Possibly his testimony supplied the missing foundational evidence. We make no affirmative ruling in relation to these statements by the defendant. Betts testified that he did not know how to secure the attendance of a particular witness whose testimony might have been of value in relation to the question of intent, intent being a rather vital part of the charge contained in the information. The entire proceedings commenced at 9:35 a. m. and both sides rested at 11:03 a. m. with two brief recesses. At 2:00 that afternoon, the court entered a formal finding that the defendant was guilty and fixed a later date for the formal judgment and sentence.

The appeal is largely bottomed upon the failure to make proper inquiry in relation to whether or not the defendant desired counsel and whether or not the defendant knew of his right to counsel in the event that he was without means to employ counsel. So far as the record discloses, the court was not informed as to Betts' means or lack of means at the time of the trial of the felony case to the court without a jury. In later hearings in relation to the furnishing of the record on appeal, it was brought out that Betts had paid some money to a Flagstaff attorney and that thereafter he paid a substantial fee to his Phoenix attorneys. All but a small portion of the money which was paid was borrowed money and as of the date of the felony trial before Judge Castro, the defendant was without funds. The first sentence of Rule 163 of the Rules of Criminal Procedure is as follows:

'Before the defendant is arraigned on a charge of felony, if he is without counsel, the court shall ask him if he desires the aid of counsel and if he answers in the affirmative, and declares, under oath, that he has no means to employ counsel, the court shall assign counsel to represent him in the action.' 17 A.R.S.

The State urges that where a defendant had counsel of his own selection at the time of his arraignment, the requirements of the rule have been satisfied. A person standing trial for a felony has a right to counsel. A person so standing trial has the right to waive counsel and to defend himself. This must be done with knowledge of his rights. We do not intend to negative the possibility that there may be situations wherein the court is permitted to designate counsel to assist a defendant even though the defendant requests or demands that it is his right to be his own exclusive counsel.

Where, as here, the defendant had counsel through a portion of the critical period of the proceedings, we believe that the court should have assumed that he was aware of the value of counsel. When he appeared at the trial without counsel and requested leave to have the aid and comfort of a non-lawyer friend, we believe the court could assume that defendant knew the value of consultation. It later developed that this friend was the one who had loaned the money with which Betts had employed counsel. We hold that where a defendant in a felony case has appeared with counsel of his own choosing and at some stage later in the proceedings appears without counsel, there is a duty of inquiry and a duty of advice under the spirit of Criminal Rule 163 before proceeding with the trial. We recognize that after proper inquiry, the court may find that a defendant is in fact not indigent. State v. Edwards, 1 Ariz.App. 42, 399 P.2d 176 (1965). The inquiry must be made. Upon a reading of the Reporter's Transcript it occurs to this Court that there are many questions which could have been raised by counsel or which coun...