State v. Bishop
| Decision Date | 24 March 1983 |
| Docket Number | Nos. 2,CA-CR,s. 2 |
| Citation | 137 Ariz. 5,667 P.2d 1331 |
| Parties | The STATE of Arizona, Appellee/Respondent, v. Stephen BISHOP, Appellant/Petitioner. 2436, 2 2633-2PR. |
| Court | Arizona Court of Appeals |
Appellant was tried to a jury and convicted of five counts of armed robbery, nine counts of kidnapping, one count of aggravated assault and one count of theft. An allegation of prior conviction and dangerous nature was filed for enhancement of punishment. Appellant was sentenced to 21 years imprisonment on counts 1-5, 28 years imprisonment on counts 6-9 to run consecutive to counts 1-5, 35 years imprisonment on counts 10, 12-15, to run consecutive to counts 1-5 and 6-9, and 25 years imprisonment for count 11, to run concurrent with counts 10, 12-15, and consecutive to previous sentences.
Appellant contends on appeal that the trial court erred (1) when it found him competent to stand trial; (2) in not granting a longer continuance to locate a witness; (3) in dismissing his Rule 32 claim that he was convicted on perjured testimony; (4) in ordering his leg secured to his chair; (5) by imposing excessive sentences and by improperly imposing consecutive sentences. We affirm.
The charges arose from an episode beginning on the evening of November 30, 1979, when appellant entered a Dairy Twin in Tucson, threatened occupants with a silver handgun and forced them to lie on the floor while he took cash from a cash register and a silver certificate from one of the persons present. He tore out the telephone, fired shots at the ceiling and wall and warned those present to stay still for 10 minutes. He proceeded to a Circle K where he terrorized those present with his pistol, took cash from the register, including a bait bill that tripped a camera that photographed him. He fired another shot and warned those present to stay on the floor for 10 minutes. He next went to Zantigos store where he grabbed a person by the throat and forced others to lie on the floor, took bank bags of money from the safe and fired two shots. A customer at the drive-in window observed appellant, followed him and got his vehicle license number for the police. When police attempted to apprehend appellant, he abandoned his vehicle and ran. When captured, he had a large number of bills in his possession, including the bait bill which triggered the camera at the Circle K and the silver certificate. A silver handgun matching the one used in the robberies was found nearby and ballistics confirmed it as the weapon fired during the robberies. The stolen bank bags and telephone were found in the abandoned vehicle.
In March of 1980, the trial court determined that appellant was incompetent to be tried based on psychiatric reports. Appellant was reexamined and found competent to stand trial in July of 1980. Defense counsel sought in April of 1981 to have appellant reexamined to determine if he was competent to stand trial in view of a recent suicide attempt, depression and withdrawal which allegedly interfered with his ability to communicate with counsel. The trial court arranged for an interview with appellant by the staff psychiatrist of Kino Community Hospital to determine if there was a reasonable basis to believe that appellant was incompetent to stand trial. The staff psychiatrist filed a written report giving an opinion that the appellant was competent to stand trial. Rule 11.1 of the Arizona Rules of Criminal Procedure, provides:
"A person shall not be tried, convicted, sentenced or punished for a public offense while, as a result of a mental illness or defect, he is unable to understand the proceedings against him or assist in his own defense."
An accused has the right to a mental examination and hearing to determine his competence where "reasonable grounds" exist to support the examination and hearing. State v. Steelman, 120 Ariz. 301, 585 P.2d 1213 (1978); see also Rule 11.3(a). We are of the opinion that the trial court properly exercised its discretion in concluding that a Rule 11 examination was unnecessary. The appellant's competency to stand trial had been extensively reviewed and determined prior to trial. The prior determination, of course, is not conclusive since obviously a party's mental condition may change from one of lucidity to incompetence in a short period of time. Nevertheless, the trial court may consider such examinations, particularly when recently made, as in the instant case. Moreover, the trial judge who disallowed the Rule 11 reexamination had presided at the prior competency hearing which was submitted to the court by stipulation on the basis of the psychiatric reports and was in a position to observe the appellant. In State v. Messier, 114 Ariz. 522, 562 P.2d 402 (App.1977), the court of appeals approved of a preliminary hearing to determine if the request for mental examination established the requisite "reasonable grounds." The court cautioned that the trial judge must exercise care to ensure that such preliminary hearing did not become a substitute for a determination of competency itself. The record does not indicate that to be the case here. Furthermore, appellant's application was deficient in that it was based only upon counsel's assertions in the application and a newspaper article attached thereto. Langley v. State, 84 Nev. 295, 439 P.2d 986 (1968). The trial court has broad discretion in determining whether reasonable grounds exist to order a competency examination. We conclude from the record that the trial court acted well within that discretion. State v. Ortiz, 117 Ariz. 264, 571 P.2d 1060 (App.1977).
It is contended that defense counsel had been led to believe by Mrs. Bishop that she would be willing to return from Sparks, Nevada to testify in her husband's behalf. About May 11, 1981, defense counsel received a letter from Mrs. Bishop indicating that she would not return...
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...where "[t]he appellant's competency to stand trial had been extensively reviewed and determined prior to trial." State v. Bishop, 137 Ariz. 5, 8, 667 P.2d 1331, 1334 (App.1983). The trial court had before it the record previously made on each occasion when it reconsidered defendant's compet......
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