State v. Carpenter
| Decision Date | 10 September 1965 |
| Docket Number | CA-CR,No. 2,2 |
| Citation | 405 P.2d 460,1 Ariz.App. 522 |
| Parties | STATE of Arizona, Appellee, v. Duane CARPENTER and Mary Louise Carpenter, Appellants. * 2. |
| Court | Arizona Court of Appeals |
Davis & Eppstein, Tucson, Thomas J. Davis, Tucson, of counsel, for appellants.
Duane and Mary Louise Carpenter, husband and wife, hereinafter referred to as defendants, jointly appeal from judgments of conviction and sentences entered on October 15, 1963, in Superior Court, Pima County. They were tried by the court sitting without a jury on an information charging four counts as follows:
1. Aggravated assault, a felony (A.R.S. § 13-245, as amended);
2. Contributory dependency, a misdemeanor 4. Permitting life or health of child to be imperiled by neglect or abuse, a misdemeanor (A.R.S. § 13-842).
3. Neglect of child, a misdemeanor (A.R.S. § 13-801); and
Each defendant was found guilty of Counts 1 and 4 as charged in the information and not guilty of the charges in Counts 2 and 3 thereof. The sentences imposed on October 15, 1963, on each defendant were: (a) six months imprisonment in the Pima County Jail to run from August 1, 1963, on Count 4, and (b) imprisonment for a term of not less than four years and not more than five years in the Arizona State Prison, to commence from the day of release from the Pima County Jail, on Count 1. This appeal is directed solely to the convictions of the charges of aggravated assault.
Reviewing the evidence in a light most favorable to sustain the convictions, the pertinent facts may be summarized as follows: At about eight o'clock on the evening of June 21, 1963, an officer of the Tucson Police Department was dispatched to the defendants' residence at 155 West District Street, Tucson. On arrival he found the defendant Duane Carpenter sitting in the living room near Robert Eugene Carpenter, his 52-day-old son, who was lying on a car seat. He observed that a white substance was exuding from the infant's mouth and nose and promptly notified the Tucson Fire Department Rescue Squad that a resuscitator was required immediately. After the resuscitator had been used, the infant was taken to St. Mary's Hospital for treatment. Examination revealed that he was suffering from pneumonia, malnutrition, contusions and numerous fractured bones, to wit: at least two skull fractures, at least two major fractures of the extremities and six rib fractures. The fractures were attributed to the application of external force upon his body at various times between May 17, 1963, and June 21, 1963. The child's condition upon arrival at the hospital was deemed critical.
Dr. Daniel S. Forsyth, who examined the infant on June 22, testified with regard to the above described illnesses and injuries. The infant had previously been examined at the age of 17 days on May 17 by Dr. Ross Chapin, a local practicing physician. Dr. Chapin's examination disclosed none of these illnesses and injuries. During the intervening 35-days period, Mary Carpenter informed Dr. Chapin via telephone on May 27 of an injury to the baby's face and head which had occurred on the previous day. However, the child was not seen by the doctor.
On or about June 9, an incident occurred at Richie's Drive-In Restaurant at East 22d Street, Tucson, which incident is the only direct evidence linking the defendants to the baby's injuries. Two waitresses, Edna Funk and Connie Padgett, who served the defendants, observed that the infant was lying on the back seat of the defendants' car when the defendant Duane hit his wife. The wife thereupon reached back, took the infant in her hands and threw him at Duane. The infant fell between the father and the steering wheel. Connie Padgett testified that she '* * * literally heaved it at him.' Thereupon Duane took the infant by one arm and without turning towards the rear seat, either '* * * tossed it * * *' (Edna's version) or '* * * batted it back * * *' (Connie's version) onto the back seat.
There was no evidence that the infant had ever been out of the custody and control of the defendants from the data of its birth, April 30, 1963, until June 21, 1963.
In the interests of clarity, a brief summary of the procedural aspects of this case is essential. Both defendants were arrested and charged with three counts. The counts were those hereinabove set forth numbered 2, 3, and 4. (For brevity's sake, we shall refer to this as Action No. 1.) The defendants being unable to afford counsel, the trial court appointed one attorney to represent both. The trial was set for September 19, 1963, and a jury was waived. However, on A criminal Complaint was filed in Justice Court later the same day charging both defendants with the following offenses: aggravated assault, neglect of child, and permitting the life or health of child to be imperiled y neglect or abuse. Thereafter on the same day defendants waived a preliminary hearing and were bound over to Superior Court. The information filed in Superior Court by the Pima County Attorney on the following day included the additional misdemeanor count of contributory dependency. (For brevity's sake, we shall refer to this as Action No. 2.) The same trial counsel was reappointed for both defendants, the case was tried and defendants found guilty. For purposes of this appeal, the trial court appointed another attorney who briefed and argued this appeal. To avoid confusion we shall distinguish between them by referring to them as 'trial counsel' and 'appellate counsel.'
the day of trial, the trial judge, over defense counsel's objection, dismissed the three misdemeanor counts and directed the county attorney to file a complaint charging aggravated assault in addition to the three misdemeanor counts.
The assignments of error set forth are, in essence, as follows:
1. That the trial court erred in failing to dismiss the instant charges on its own motion on the ground that the defendants were placed twice in jeopardy contrary to §§ 4 and 10 of Article 2 of the Arizona Constitution, A.R.S., and the 14th Amendment to the United States Constitution. 1
2. That the trial judge should have disqualified himself on his own motion because he had dismissed the earlier information on his own motion over the objection of trial counsel and directed a more serious charge to be filed against the defendants, thus denying defendants due process of law contrary to § 4 of Article 2 of the Arizona Constitution and the 14th Amendment to the United States Constitution. 2
3. That the trial court erred in refusing to grant the defendant's motion for acquittal on the ground that A.R.S. § 13-245, as amended, (a felony) has been impliedly repealed by A.R.S. § 13-842 (a misdemeanor). 3
Without assigning error in this regard, appellate counsel further contends that the representation of both defendants by the same attorney deprived the defendants of their 'right to counsel' as guaranteed by § 4 of Article 2 of the Arizona Constitution 4 and the Sixth Amendment to the United States Constitution. 5 This contention is based on an alleged conflict of interest between the defendants because trial counsel had filed a divorce action on August 20, 1963, for the defendant-wife against the defendant-husband, and then continued to represent both defendants as defense counsel in the criminal action. We shall consider each of these matters in the foregoing order.
We are satisfied that the claim of double jeopardy is without merit. In Action No. 2, the defendants were not in jeopardy a second time as they had not been placed in jeopardy in Action No. 1. This appeal is only with respect to the aggravated assault count which had not been before the court in Action No. 1. However, defendants contend that they were placed in double jeopardy in violation of their constitutional rights because Count 3 in Action No. 1 () is a lesser included offense of Count 1 in Action No. 2 (aggravated assault).
An offense is a lesser included offense where all of the elements of such offense are present with others in the offense denominated as the greater offense or where all the elements of an offense are included among the elements of the offense charged. State v. Kuchmak, 159 Ohio St. 363, 112 N.E.2d 371 (1953). The test of a lesser included offense is: where an offense cannot be committed without necessarily committing another offense, the latter is a lesser included offense of the former. People v. Greer, 30 Cal.2d 589, 184 P.2d 512 (1947). More succintly, our Supreme Court has stated this proposition is follows:
'* * * The test to be applied is simple: Is the first offense one that cannot be committed without necessarily committing the second?' State v. Westbrook, 79 Ariz. 116, 119, 285 P.2d 161, 53 A.L.R.2d 619 (1954).
Where a defendant is tried for such lesser included offense he may not thereafter be brought to trial charged with the greater offense. State v. Harvey (No. 1445), 98 Ariz. 70, 402 P.2d 17, decided May 12, 1965; A.R.S. § 13-145. However, if the offense charged in Count 3 in Action No. 1 is not a lesser included offense of the charge in Count 1 of Action No. 2, then prosecution of the latter charge is not barred. State v. Westbrook, supra.
Therefore, the double jeopardy contention must be resolved by a comparison of the elements of (1) aggravated assault and (2) permitting the life or health of a child to be imperiled by neglect or abuse. The As to Duane Carpenter:
elements of aggravated assault applicable to the instant case are:
1. An assault
2. By an adult male
3. Upon the person of a child; and
As to Mary Louise Carpenter:
1. An assault
2....
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