State v. Bojorquez

• Citation: 535 P.2d 6,111 Ariz. 549
• Decision Date: 05 May 1975
• Docket Number: No. 3000,3000
• Parties: , 78 A.L.R.3d 1135 STATE of Arizona, Appellee, v. Jesse Gomez BOJORQUEZ, Appellant.
• Court: Supreme Court of Arizona

Page 6

535 P.2d 6

111 Ariz. 549, 78 A.L.R.3d 1135

STATE of Arizona, Appellee, v. Jesse Gomez BOJORQUEZ, Appellant.

No. 3000.

Supreme Court of Arizona, In Banc.

May 5, 1975.

N. Warner Lee, Atty. Gen., by Stanley L. Patchell, Asst. Atty. Gen., Phoenix, for appellee.

David B. Lowry, Scottsdale, for appellant.

HOLOHAN, Justice.

Jesse Gomez Bojorquez appeals from a judgment and sentence on two counts of first degree murder, A.R.S. §§ 13-451, 452, 139, 140, and one count of being a prisoner in possession of a deadly weapon, A.R.S. § 31-232, for which he was sentenced to prison for 75 to 99 years on the weapons charge and concurrent life sentences on each of the murder convictions, the latter sentences to commence after completion of the 75 to 99 year term.

Appellant and several other inmates of the Arizona State Prison were tried jointly for various offenses following the takeover of a cellblock at the prison on June 22, 1973, during which two prison guards were killed.

Appellant Bojorquez was convicted of the murders of the guards and for being in possession of a deadly weapon. From the judgment and sentence, he has filed a timely appeal.

The issues raised by the appellant include:

1) Whether the superior court lacked jurisdiction to entertain the grand jury indictment;

2) Whether the grand jurors were properly qualified;

3) Whether allowing the county attorney to prosecute by indictment or information violates constitutional equal protection doctrine;

4) Whether statements made by the county attorney constituted an undue influence upon the grand jury;

5) Whether the appellant was entitled to a severance because of alleged statements made by a co-defendant during the investigation;

6) Whether exclusion of convicted felons, whose civil rights have not been restored, from jury service violates constitutional standards;

7) Whether disagreement on peremptory jury challenges between co-defendants entitles each defendant to the full number of challenges otherwise available to a lone defendant;

8) Whether circumstances of an out of court photo identification were impermissibly suggestive;

9) Whether testimony transposing identities of the two murder victims, subsequently corrected, warranted striking all of the witness' testimony and forbidding further testimony based upon the autopsy report; and

10) Whether the sentence was excessive.

Appellant has failed to present a record supporting his challenges to 1) the jurisdiction of the superior court to entertain the grand jury indictment and 2) the impanelment of the grand jury.

It is the duty of counsel who raises objections on appeal to see that the record before us contains the material to which he takes exception. State v. Ford, 108 Ariz. 404, 499 P.2d 699 (1972), cert. denied, 409 U.S. 1128, 93 S.Ct. 950, 35 L.Ed.2d 261 (1973). Where matters are not included in the record on appeal, the missing portions of the record will be presumed to support the action of the trial court. State v. Brooks, 107 Ariz. 364, 489 P.2d 1 (1971); State v. Wilson, 95 Ariz. 372, 390 P.2d 903 (1964).

Appellant contends that, originally, there was a Criminal Rule 1 proceeding, a so-called 'one-man' grand jury, resulting in the filing of a complaint. Afterwards, the prosecution presented the matter to a grand jury, secured an indictment and had the original complaint dismissed. An intervening indictment arising from the same activity may supersede the filing of a prior complaint. Carter v. State, 5 Ariz.App. 210, 424 P.2d 858 (1967); People v. Allen, 220 Cal.App.2d 796, 34 Cal.Rptr. 106 (1963); See State v. Vinson, 8 Ariz.App. 93, 443 P.2d 700 (1968), State v. Dennington, 51 Del. 322, 145 A.2d 80 (1958).

Counsel for Bojorquez also complains that the grand jury was improperly impaneled. Again, it was counsel's duty to present a record on the impanelment. Without such a record, we will presume that the matter was accomplished under proper procedure. State v. Brooks, Supra; State v. Wilson, Supra.

The third issue raised by Bojorquez is that the unfettered discretion of the county attorney to alternatively prosecute by indictment or information, Ariz.Const. art. 2, § 30, is a denial of equal protection under the Fourteenth Amendment to the United States Constitution.

It is suggested that, because certain procedures at a preliminary hearing (notice of charges, right to counsel, subpoena of witnesses, right of confrontation, testifying on own behalf) are not attendant to a grand jury proceeding, defendants in the same or similar circumstances are treated so differently as to deny them equal protection of the laws.

While the appellant attempts to point up the disadvantages of the grand jury system, as compared to the information route, the indictment method by a grand jury is recognized as a fundamental element of the accusatory process under the United States and Arizona Constitutions. U.S.Const. amend. V; Ariz.Const. art. 2, § 30. Either method--indictment by grand jury or information after preliminary hearing--is constitutionally proper.

'. . . (A) prosecuting attorney may proceed by either indictment or information without violating the Fourteenth Amendment of the United States Constitution, notwithstanding the fact that these two alternatives provide completely different procedures.' State v. Cousino, 18 Ariz.App. 158, 160, 500 P.2d 1146, 1148 (1972).

Appellant also argues that the grand jury process deprived him of the opportunity for discovery. The purpose of a preliminary examination is not to grant the defendant an opportunity for discovery but to determine probable cause to hold the defendant to answer. State v. Miranda, 104 Ariz. 174, 450 P.2d 364 (1969), cert. denied, 396 U.S. 868, 90 S.Ct. 140, 24 L.Ed.2d 122. Any discovery that occurs at a preliminary hearing is incidental to that proceeding and is not a right of the defendant. State v. Miranda, Supra; State v. Kanistanaux, 68 Wash.2d 652, 414 P.2d 784 (1966). Moreover, discovery is provided in that the transcript of the grand jury proceedings is made available to the defendant. A.R.S. § 21-411(A).

Appellant's fourth argument challenges certain statements made by the county attorney during the grand jury proceedings. It is contended that the remarks were improper and constituted an undue influence upon the traditionally independent deliberations of the grand jury.

After a dozen witnesses testified concerning the actions of four prospective defendants, the prosecutor explained the applicable law of the case to the grand jury and made several statements advising the jury that the county attorney's officer believed that the evidence substantiated the particular charges.

A.R.S. § 21-408(A) defines the duties of the county attorney in relation to the grand jury:

'The county attorney or other prosecuting officer shall attend the grand jurors when requested by them, and may do so although not requested for the purpose of examining witnesses, in their presence, or of giving the grand jurors legal advice regarding any matter cognizable by them. He shall also, when requested by them, draft indictments and cause process to issue for the attendance of witnesses and other evidence.'

It is no more proper for a prosecutor, before a grand jury, to express his personal opinion as to a person's guilt or innocence than it is to make such statements during arguments at trial. State v. King, 110 Ariz. 36, 514 P.2d 1032 (1973); State v. Abney, 103 Ariz. 294, 440 P.2d 914 (1968).

Any terminology expressing personal belief was improper. The prosecutor made a more properly formed statement when he said: 'We feel the evidence as to (his) . . . participation in this deserves your consideration . . ..' While the former remarks were impermissible, they did not result in prejudicial error.

Bojorquez next objects to the trial court's denial of a motion to sever the trial of his cause from that of co-defendant Charles Edward Belt. According to investigative reports of the Department of Public Safety, Belt had made statements implicating the appellant in the murders. None of these statements were offered into evidence by the State or referred to at any time during the trial. The trial court granted Belt's motion for a directed verdict at the close of the State's case.

Bojorquez's counsel argued that the mere existence of the accusatory statements had forced him into a trial strategy whereby cross-examination of witnesses that might have adversely reflected on Belt was restricted for fear that Belt would take the stand to implicate Bojorquez. Appellant's motion for mistrial was denied.

The trial judge's discretion in ruling on a requested severance, Rule 254, Rules of Criminal Procedure (1956), will not be reversed absent a clear abuse of discretion. State v. Clayton, 109 Ariz. 587, 514 P.2d 720 (1973); State v. Webb, 101 Ariz. 307, 419 P.2d 91 (1966).

Appellant's argument has no merit. The issue does not reach constitutional dimensions affecting the right of confrontation since no trial use of the statement was threatened or occurred. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Appellant was on notice that there was no intention by the state to use the statement because the state made no attempt at any time to establish the statement as being voluntarily made as required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

Once Belt was directed out of the case, counsel for Bojorquez did not indicate any interest in recalling witnesses whom he supposedly treated with restraint during cross-examination. The appellant has demonstrated no prejudice or denial of his right to confrontation under Bruton v. United States, Supra. Nor has Bojorquez revealed a clear abuse of discretion in the trial court's refusal to grant a severance. State v. Clayton, Supra.

Appellant's sixth argument challenges the constitutionality of the jury selection process whereby the jury commissioner...