State v. Bruce
| Decision Date | 02 April 1980 |
| Docket Number | No. 4899,4899 |
| Citation | 610 P.2d 55,125 Ariz. 421 |
| Parties | STATE of Arizona, Appellee, v. Rudolph Mason BRUCE, Appellant. |
| Court | Arizona Supreme Court |
Martin & Feldhacker by Gregory H. Martin, Phoenix, for appellant.
Defendant Rudolph Mason Bruce appeals his convictions and sentences for six counts of knowingly receiving earnings of a prostitute, a class five felony. Having jurisdiction pursuant to 17A A.R.S., Rules of Supreme Court, Rule 47(e) (5), we affirm.
Trial before a jury culminated in verdicts of guilty on all six counts. Defendant was sentenced to the Arizona State Prison for a period of two years on each count, each of the sentences to be served concurrently. His timely appeal raises two issues for our disposition:
(1) Did the trial court err by permitting the prosecution to amend the indictment (2) Did the trial court commit prejudicial error by denying defendant's motion for a mistrial based on the prosecutor's use of the word "pimp" in referring to the defendant?
during trial, in violation of 17 A.R.S., Rules of Criminal Procedure, Rules 13.5 and 16.1?
During the course of the trial, and over defense objection, the court granted two motions made by the state to amend the indictment. The first amendment changed the date alleged in count one from "on or about the 4th day of December, 1978" to "on or about the 3rd day of December, 1978." The second amendment changed count four from "on or about the 9th day of December, 1978," to "on or about the 10th day of December, 1978."
Defendant argues that allowance of these amendments is in violation of 17 A.R.S., Rules of Criminal Procedure, Rules 13.5(c) and 16.1(b) and (c), 1 which together mandate that issues concerning defects in charging documents be raised no later than twenty days prior to trial. The state correctly asserts that although subsections (a) and (c) of Rule 13.5 explicitly require compliance with Rule 16, Rule 13.5(b), however, does not mandate such compliance, but provides in pertinent part:
The Comment to Rule 13.5(b) includes the following statement:
"The charging document is automatically amended to conform to the evidence adduced in the course of the proceedings; no motion or formal action is required."
Rule 13.5(b) and its Comment, thus, make it clear that a technical or formal defect in a charging document may be remedied whenever such defect is presented. See, e. g., State v. Sustaita, 119 Ariz. 583, 583 P.2d 239 (1978); State v. Jonas, 26 Ariz.App. 379, 548 P.2d 1191 (1976).
A defect may be considered formal or technical when its amendment does not operate to change the nature of the offense charged or to prejudice the defendant in any way. See State v. Jonas, supra; cf. State v. Sustaita, supra; State v. Williams, 108 Ariz. 382, 499 P.2d 97 (1972); State v. Butler, 9 Ariz.App. 162, 450 P.2d 128 (1969). Defendant contends that his ability to prepare his case for trial was impaired by one of the amendments, because his lack of prior knowledge of the date change prevented him from using certain conflicts that arose in trial testimony. Examination of the record reveals, however, that defense counsel had notice of the discrepancies in the dates well before trial. We, therefore, reject this allegation of prejudice. Cf. State v. Barnett, 112 Ariz. 210, 540 P.2d 682 (1975); State v. Ramirez, 115 Ariz. 70, 563 P.2d 325 (App.1977); State v. Jonas, supra.
Defendant also argues that he was prejudiced by the amendments, because an acquittal as to the amended charges would not be a defense to the original charges. See State v. Suarez, 106 Ariz. 62, 470 P.2d 675 (1970); State v. Williams, supra. This presupposes that proof of double jeopardy is
confined to the four corners of the charging document. Such is not the case. See State v. Lombardo, 104 Ariz. 598, 457 P.2d 275 (1969); State v. Mallory, 19 Ariz.App. 15, 504 P.2d 556 (1973); State v. Butler, supra. We believe that the record taken as a whole would substantiate a double jeopardy bar if the state should subsequently seek prosecution based upon the same acts. The trial court, therefore, correctly granted the state's motions to amend the indictment.
The second allegation of error is based upon the prosecutor's use of the word "pimp" in relation to the defendant. Defendant first challenges as improper the following questioning of the prostitute involved in the charges, conducted by the prosecutor during redirect examination:
The court denied the motion for mistrial made by defense counsel immediately after the above colloquy took place. Defendant argues that this denial was prejudicial error, because the references to himself as a "pimp" were expressions of the prosecutor's personal opinion of his guilt and were "calculated to inflame passion and prejudice."
We disagree. We do not consider the above-quoted usage of the term "pimp" either inflammatory or expressive of the prosecutor's personal opinion of defendant's guilt. Defense counsel had previously referred to the witness' prior relationships with other "protectors." He had also insinuated, on cross-examination, that the witness trumped up the charges against the defendant at the behest of the police. The prosecutor's use of the word "pimp" was a description of the relationship claimed by the state to exist between the witness and defendant, used during the course of the prosecutor's redirect examination when he was attempting to refute defense counsel's insinuation. Such a characterization of the relationship, which is amply supported by the evidence, is not improper.
Defendant also challenges as improper the following two references to defendant made by the prosecutor during her rebuttal closing argument:
Both references were made in response to defendant's closing argument. The first reference was a rebuttal of defense counsel's insinuation that the police had induced the prostitute to falsely testify against defendant. The second reference was a rebuttal of defense counsel's explanation for defendant's use of an alias when he had contacts with the prostitute, the explanation being that everyone who has contact with a prostitute uses an alias.
We vie...
To continue reading
Request your trial
-
State v. Copeland
...that the state would seek to prosecute him later for similar offenses occurring in the same time frame. See State v. Bruce , 125 Ariz. 421, 423-24, 610 P.2d 55, 57–58 (1980) ; see also Lente , 453 P.3d 416, ¶ 35. Given the nature of the charges and the generic testimony supporting them, a s......
-
State v. Sanders
...is whether the amendment changes the nature of the offense charged or prejudices the defendant in any way. State v. Bruce, 125 Ariz. 421, 423, 610 P.2d 55, 57 (1980). If the answer to both is in the negative, then the amendment passes Sixth Amendment scrutiny and qualifies as a merely forma......
-
State v. Bolivar
...or formal defect in a charging document may be remedied," through amendment, "whenever such defect is presented." State v. Bruce , 125 Ariz. 421, 423, 610 P.2d 55, 57 (1980) ; see also State v. Delgado , 174 Ariz. 252, 254-55, 848 P.2d 337, 339-40 (App. 1993) (amending indictment after clos......
-
State v. Romero
...or technical when its amendment does not change the nature of the offense or otherwise prejudice the defendant. State v. Bruce, 125 Ariz. 421, 423, 610 P.2d 55, 57 (1980). Rule 13.5(b) does not authorize an amendment that alters the elements of the charged offense. State v. Freeney, 223 Ari......