State v. Boag

• Decision Date: 24 April 1969
• Docket Number: No. 1780,1780
• Parties: STATE of Arizona, Appellee, v. Donald Gene BOAG, Appellant.
• Court: Arizona Supreme Court

Page 508

453 P.2d 508

104 Ariz. 362

STATE of Arizona, Appellee, v. Donald Gene BOAG, Appellant.

No. 1780.

Supreme Court of Arizona, In Banc.

April 24, 1969.

Rehearing Denied May 20, 1969.

Gary K. Nelson, Atty. Gen., by Carl Waag and Terry Pierce, Phoenix, for appellee.

Vernon Croaff, Public Defender, by Grant Laney, Phoenix, Dushoff, Sacks & Corcoran, by Robert J. Corcoran, Phoenix, for appellant.

Donald Gene Boag, in pro. per.

McFARLAND, Justice:

Donald Gene Boag, hereinafter referred to as defendant, was convicted on three counts (1) assault with intent to commit murder; (2) robbery; and (3) mayhem. All counts included a prior conviction. He was sentenced from 75 to 99 years on Count 1; 75 to 99 years on Count 2; and 13 to 14 years on Count 3. The court ordered the sentences to run consecutively.

Defendant was serving a prison sentence in California at the time of his trial, and after the Arizona conviction he was sent back to serve out his term. The Arizona sentences were ordered to commence after the California sentence. Defendant appeals from the conviction and sentencing.

On the evening of July 8, 1966, defendant entered the Travelodge Motel on East Van Buren in Phoenix. The motel was managed by Mr. and Mrs. Arnold Peterson. Once inside, defendant produced a pistol and forced Mrs. Peterson to give him all the available cash. He then forced her into the rear living quarters where Mr. Peterson had been sleeping. By the use of threats he coerced Mrs. Peterson into tying up her husband with a piece of electrical cord, and then he tied Mrs. Peterson and stuffed a rag into her mouth. Defendant then returned to Mr. Peterson, who was lying on the bed, produced a knife, and proceeded to gouge out Mr. Peterson's left eye.

Defendant's next vicious act consisted of taking Mr. Peterson's leather belt and placing it around Mrs. Peterson's neck, then tightening it until she lost consciousness. He thereafter returned to Mr. Peterson, and once again stabbed him in the same eye. These stabbings caused the complete loss of the eye. Finally the arrival of motel guests caused defendant to flee the scene of the crime.

A total of twelve briefs were filed, five in propria personam. From the multitude of issues presented, several are redundant; therefore, to facilitate the discussion of all the issues, it has been necessary to consolidate such issues.

The first assignment of error was raised only by defendant in his brief filed in personam. He claims that by transferring him to California he was denied an opportunity to aid in his appeal. He maintains that this amounts to denial of due process under the Fourteenth Amendment to the Constitution of the United States.

The record in the instant case does not substantiate the charge of defendant that his transfer to California denied him an opportunity to aid in his appeal or the charge that his trial attorney was negligent, incompetent, and indifferent.

There is no evidence that defendant's being moved to California prejudiced his rights. As a matter of fact, he filed briefs in personam from California which indicate that he had competent assistance from some source. Defendant complains that the Public Defender's Office at first filed a letter in which it was stated that there were no grounds for appeal. The the U.S. Supreme Court handed down the decision of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. The Public Defender thereafter filed a brief which was well written and indicated a thorough search of the record. Defendant filed an objection to being represented by the Public Defender's Office, and this Court thereafter appointed Robert Corcoran attorney, who also filed a brief and a reply brief.

We find no merit in defendant's contention that his rights were prejudiced by his removal to California.

Next, defendant alleges that his trial attorney was both incompetent and indifferent to his cause. The alleged actions are largely based upon differences of opinion between counsel and defendant concerning certain courses of action. Each specific complaint has been examined. There is nothing in the record to indicate indifference or incompetency.

In State v. Kruchten, 101 Ariz. 186, 417 P.2d 510, we stated:

'* * * It lies behind a defendant's natural inclination to bring hindsight to bear on his lawyer's performance and often contains his second thoughts concerning his plea of guilty and the advice of counsel which led to it. See Kamisarr, The Right to Counsel and The Fourteenth Amendment, 30 U.Chi.L.Rev. 1. It has been noted before that the willingness of courts to consider claims of inadequate trial representation invites a change of counsel and results in the actual trial of the former attorney. State v. Benson, 247 Iowa 406, 72 N.W.2d 438, 441; and see, Waltz, Inadequacy of Trial Defense Representation as a Ground for Post-Conviction Relief in Criminal Cases, 59 Nw.U.L.Rev. 289.

"Advocacy is a skill and art; easy to criticize, difficult to fairly appraise. Indeed a post-mortem of criminal trials, selected at random, would undoubtedly reveal flaws of varying magnitude in the trial techniques of respected members of the bar. * * *" See United States v. Stoecker, 216 F.2d 51 at 52 (C.A.7, 1954)

Defendant next contends that his rights were prejudiced because he was handcuffed and chained when he was brought into the courtroom. Neither defendant nor his counsel contend that the accused remained shackled during the course of the trial. It has been recognized from early common law that a prisoner coming into court for trial is entitled to make his appearance free of shackles or bonds. The reason for the rule is that there might be prejudice in the minds of the jury against the prisoner, and therefore it might interfere with a fair and just decision. It has long been recognized that exceptions to this rule have been made, and in such matters the conduct of the trial rests in the sound discretion of the court. Under the record in the instant case there is nothing to show that the trial court abused this discretion, or that the handcuffs were not removed as soon as safety would permit. State v. Martin, 102 Ariz. 142, 426 P.2d 639; State v. Randolph, 99 Ariz. 253, 408 P.2d 397; State v. George, 98 Ariz. 290, 403 P.2d 932; State v. Chavez, 98 Ariz. 236, 403 P.2d 545. The rule governing this discretion is succinctly set forth in the case quoted in Chavez, supra McDonald v. United States, 8 Cir. 1937, 89 F.2d 128, wherein it is stated:

'* * * It is too obvious for argument that hardly any other matter can be better relegated to the discretion of the trial court than that of safeguarding the court, counsel, jury, and spectators, and assuring the continued presence and attendance of the accused at the trial. Absent incontrovertible evidence of hurt, the trial court should be permitted to use such means, to secure the named ends, as the nature of the case, the known criminal record, character, associates in crime, and reputation of the accused shall reasonably call for, and such is the rule enunciated in the few cases existing which deal with the question * * *.'

Also see Odell v. Hudspeth, 189 F.2d 300 (C.A.10th).

Defendant claims the following statement made in the prosecution's closing argument was reversible error:

'* * * What kind of person would do something like that? I couldn't even call him an animal, because animals wouldn't do this type of thing.'

Defendant failed to object to the comment. Failure to object to a comment is a waiver of the right to have the comment reviewed upon appeal, unless there is fundamental reversible error. State v. Dillon, 104 Ariz. 33, 448 P.2d 89; State v. Sowards, 99 Ariz. 22, 406 P.2d 202; State v. Hernandez, 96 Ariz. 28, 391 P.2d 586; State v. Woolery, 93 Ariz. 76, 378 P.2d 751.

Attorneys are given wide latitude in their arguments to the jury. State v. Dillon, supra; State v. Robison, 99 Ariz. 241, 408 P.2d 29; State v. McLain, 74 Ariz. 132, 245 P.2d 278; State v. Deckter, 73 Ariz. 427, 242 P.2d 551; Guldin v. State, 63 Ariz. 223, 161 P.2d 121; Taylor v. State, 55 Ariz. 13, 97 P.2d 543; Hash v. State, 48 Ariz. 43, 59 P.2d 305; Sullivan v. State, 47 Ariz. 224, 55 P.2d 312.

In Sullivan v. State, supra, we set forth the test used in determining whether prosecutor's remarks are so objectionable as to cause reversal:

'* * *Do the remarks call to the attention of the jurors matters which they would not be justified in considering in determining their verdict * * *.'

Also see State v. Gallegos, 99 Ariz. 168, 407 P.2d 752; State v. Goodyear, 98 Ariz. 304, 404 P.2d 397. The vicious nature of the acts could be properly emphasized by counsel within the latitude given to him in closing argument. Further, the court instructed that nothing in the closing argument should be considered as evidence. Such instruction has been held to uphold the admission of the comment, on grounds that the jury is properly informed on how to treat such a comment. State v. Good-year, supra; State v. Robison, supra. We find no fundamental error.

Next, defendant objects to the following instruction:

'A person who unlawfully and maliciously puts out an eye of a human being is guilty of mayhem.'

He claims it was a comment on the evidence which is forbidden under Ariz. Const., Article VI, Section 27, A.R.S. This provision is meant to prohibit judges from 'expressing their opinion' as to the evidence. State v. Willits, 96 Ariz. 184, 393 P.2d 274. The instruction was a correct statement of the law taken directly from the statute defining 'mayhem.' (See § 13--521, A.R.S., as amended 1967.) a direct quote of the correct criminal law, applicable to a set of facts, when given for the purpose of informing the jury of the applicable law, cannot generally be considered, either directly or inferentially, as a comment on the evidence.

Defendant made a motion for a psychiatric examination as set forth in Rule 250, Rules of Crim.Proc., 17 A.R.S. This...