State v. Castoe

• Decision Date: 28 October 1976
• Docket Number: No. 1,CA-CR,1
• Citation: 114 Ariz. 47,559 P.2d 167
• Parties: STATE of Arizona, Appellee, v. Charles Joseph CASTOE, Appellant. 988.
• Court: Arizona Court of Appeals

Page 167

559 P.2d 167

114 Ariz. 47

STATE of Arizona, Appellee, v. Charles Joseph CASTOE, Appellant.

No. 1 CA-CR 988.

Court of Appeals of Arizona, Division 1, Department C.

Oct. 28, 1976.

Rehearing Denied Dec. 6, 1976.

Petition for Review Denied Jan. 4, 1977.

Bruce E. Babbitt, Atty. Gen. by Shirley H. Frondorf, Asst. Atty. Gen., Phoenix, for appellee

Ross P. Lee, Maricopa County Public Defender by Anne W. Kappes, Deputy Public Defender, Phoenix, for appellant.

OPINION

HAIRE, Chief Judge, Division 1.

On this appeal by the defendant from judgments of conviction and sentences imposed following jury verdicts of guilty on three counts of second degree burglary and three counts of grand theft, eleven questions have been raised as constituting grounds for reversal. The charges against defendant resulted after he and a companion had attempted to sell several items of jewelry to a gemcutter who lived in a trailer in the same neighborhood as the trailer occupied by defendant's companion. The gemcutter, suspecting that the items were stolen, arranged to keep them for a few hours while purporting to consider their purchase. Actually he showed them to a Mesa police officer, and pictures of the items were taken, enventually leading to their being identified as having been stolen in three recent Mesa burglaries.

After defendant was arrested, he not only confessed to charges resulting from the Mesa burglaries, but also gave statements to a deputy from the Maricopa County Sheriff's Department relating to numerous other burglaries concerning which no charges were ever filed. Additional facts will be presented as pertinent to our discussion of the issues.

I RIGHT TO ASSISTANCE OF COUNSEL

Defendant was represented by appointed counsel from the office of the Maricopa County Public Defender at the preliminary hearing and at all pre-trial proceedings. He was also represented by counsel from the Public Defender's office in his first trial. His first trial resulted in jury verdicts of guilty on all six counts, but a mistrial was declared when, upon a poll of the jury, one juror stated that she had agreed to the verdict under protest and that she was not completely convinced of defendant's guilt. The same attorney from the Maricopa County Public Defender's office continued to represent the defendant in reliminary matters prior to the defendant's second trial, and in fact filed numerous pre-trial motions on his behalf. After commencement of the second trial, and following the presentation by the state of the testimony of the victims of the crimes charged, a controversy arose between defendant and his appointed counsel because of appointed counsel's refusal to call the recanting juror from the first trial as a defense witness. This controversy was brought to the trial judge's attention in chambers, and defendant told the judge that he wanted to have his counsel 'fired'. The defendant was then advised by the trial judge to the effect that his right to appointed counsel did not include the right to choose a specific lawyer, and that he must choose between representing himself and representation from the public defender's office. The defendant then requested that the trial judge appoint a different lawyer from the public defender's office. In denying this request, the judge stated that he had no control over which deputy the public defender assigned to the court. The judge then proceeded to advise the defendant that he could proceed in one of three ways:

(1) With appointed counsel handling the case for him;

(2) With appointed counsel sitting by available to assist him; or

(3) He could proceed without counsel.

The defendant insisted that he did not want to proceed with his present counsel, nor did he want his present counsel to sit by in an advisory capacity. He apparently felt that by taking that position he could stop the trial then and there. However, the trial judge quickly advised him that the trial would have to proceed with defendant acting as his own counsel if he refused to accept appointed counsel or his assistance, and, in view of defendant's adamant refusal to accept appointed counsel, the trial did in fact proceed from that point with defendant acting as his own counsel.

Based upon the foregoing facts, defendant contends that by forcing him to proceed without the aid of counsel, the trial judge in effect denied him his right to the assistance of counsel in violation of applicable federal and state constitutional provisions. The right of an indigent defendant to be represented by counsel appointed for him by the court is well established. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). However, the accused may waive that right and has the right to represent himself. Faretta v. California 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

The methods by which these rights are afforded defendants in criminal proceedings in Arizona courts are set forth in Rule 6, Ariz.R.Crim.Proc. Rule 6.1(c) concerns the waiver by defendant of his right to counsel, and provides as follows:

'c. Waiver of Rights to Counsel. A defendant may waive his rights to counsel under (a) and (b), in writing, after the court has ascertained that he knowingly, intelligently and voluntarily desires to forego them. When a defendant waives his rights to counsel, the court may appoint an attorney to advise him during any stage of the proceedings. Such advisory counsel shall be given notice of all matters of which the defendant is notified.'

The record here demonstrates that defendant, being fully cognizant of his rights, knowingly, intelligent and voluntarily waived his right to the assistance of appointed counsel. See State v. DeLuna, 110 Ariz. 497, 520 P.2d 1121 (1974). Defendant points out that his waiver was not in writing as is required by the provisions of Rule 6.1(c), Supra. In this regard it is our opinion that Rule 6.1(c) cannot be interpreted as requiring that in every instance the waiver of the right to counsel be in writing. Often, as is demonstrated by the facts in State v. DeLuna, supra, and the facts in this case, the waiver is fully evidenced by a defendant's conduct which is consistent only with a knowing and voluntary waiver. Under such circumstances, it would be nonsensical to expect the uncooperating defendant to voluntarily sign a written statement of waiver, even though his conduct, as here, would leave the court with no reasonable alternative but to proceed without representation for him. The requirement of Rule 6 that the waiver be in writing was not intended to afford an opportunity to a recalcitrant defendant to disrupt or delay the trial proceedings. This is evidenced by the provisions of Rule 6.1(c) evidenced by the provisions of Rule 6.1(d) proceed without a written waiver where the defendant appears without counsel after having been given a reasonable opportunity to retain counsel. Similarly, a written waiver should not be made an absolute requirement under Rule 6.1(c), where the defendant's conduct as shown in the record evidences a voluntary and unrelenting refusal on his part to accept the assistance of counsel properly offered by the court. We conclude that defendant's right to the assistance of counsel was not violated.

II DENIAL OF DEFENDANT'S REQUEST TO SUBPOENA A WITNESS

We have previously indicated in this opinion that during the second trial a controversy arose between appointed counsel and defendant concerning appointed counsel's refusal to subpoena a juror from the first trial as a defense witness. After he had discharged appointed counsel, defendant presented to the court his request for a subpoena for this former juror, stating as a reason:

'THE DEFENDANT: 'Cause I believe that Mrs. Strubhar in the last trial was the juror that could not find me guilty, and I would like to have her on the stand to tell the Court and jury why she couldn't do it."

Leaving aside the procedural aspect concerning the defendant's failure to timely disclose to the state his intention to call this proposed witness, and accepting the defendant's statement as an offer of proof, we find no error inasmuch as the former juror's testimony would have been totally inadmissible. Such a juror's belief or reasons for believing the defendant innocent would be just as immaterial as would be the testimony of the eleven other jurors concerning their reasons for believing that the defendant was guilty.

III ALLEGED VARIANCE IN PROOF OF GRAND THEFT CHARGES

Defendant contends that the three convictions of grand theft are invalid because the information alleged theft from the husband members of the marital community, whereas the proof showed that most of the items stolen belonged to the wives. It is well-settled in Arizona that absolute title is not necessary; possession in the party from whom property is alleged to have been stolen is sufficient to sustain a conviction for larceny. Pettit v. State, 27 Ariz. 93, 229 P. 1036 (1924); State v. Wilmore, 10 Ariz.App. 443, 459 P.2d 531 (1969). Here the evidence showed the theft of various items of jewelry, most of which had been given to the wives by their testifying husbands. The thefts were from the residences occupied by both the husband and wives. Under these circumstances, we are of the opinion that a sufficient possessory interest in the named victims to sustain a charge of grand theft can be inferred from the evidence.

Even assuming a variance between the allegations of the information and the proof, we can perceive no prejudice to the defendant from this variance. There is no contention of surprise or that defendant was hindered in any way in preparing or presenting his defense. Under circumstances such as these, the provisions of Rule 13.5(b), Rules of Criminal Procedure, are particularly applicable. ¹ See also, State v. Smith, 91 Ariz. 49, 369 P.2d 901 (1962); State v. Colson, 17...