State v. Counterman
| Decision Date | 09 December 1968 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 8 Ariz.App. 526,448 P.2d 96 |
| Parties | STATE of Arizona, Appellee, v. Daniel W. COUNTERMAN, Appellant. 78. |
| Court | Arizona Court of Appeals |
Lewis, Roca, Beauchamp & Linton, by John P. Frank and Paul G. Ulrich, Phoenix, for appellant.
Daniel J. Counterman, Jr., hereinafter referred to as defendant, was found guilty of the crime of assault with a deadly weapon, in violation of A.R.S. § 13--249, and sentenced to a term of not less than five nor more than eight years in the Arizona State Prison.
A chronology of the proceedings leading up to this appeal is as follows:
On 19 April, 1965, a complaint was filed against defendant charging him with the crime of assault with a deadly weapon. On 20 May, 1965, a preliminary hearing was commenced. The preliminary hearing was continued and finally completed on 14 July, 1965. On 29 July, 1965, an information was filed against the defendant, charging him with one count of assault with a deadly weapon. The alleged victim was Bernice Bachman. On 11 August, 1965, defendant was arraigned, at which time he entered a dual plea of not guilty and not guilty by reason of insanity. On 22 September, 1965, the defendant was found guilty by a jury. He was adjudged guilty and sentenced. Thereafter the defendant appealed. Different counsel was appointed by the Superior Court to prosecute the appeal. The matter was submitted to this Court for consideration of the record for fundamental error. A.R.S. § 13--1715. On 27 April, 1966, this Court affirmed the conviction, finding no fundamental error in the record. 3 Ariz.App. 244, 413 P.2d 575 (1966). Thereafter the United States Supreme Court rendered its opinion in the case of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Defendant then filed a petition for a writ of habeas corpus in the Arizona Supreme Court which Court assigned the petition its cause number H--260. On 13 October, 1967, the Supreme Court entered the following order:
'Application for writ of habeas corpus--transferred to Court of Appeals, Division No. 1, for determination and decision.'
The Supreme Court's power of 'transfer' is found following subsection 6 of Section 5 of Article VI, Arizona Constitution, A.R.S. On 6 December, 1967, this Court appointed defendant's present counsel to represent defendant in the habeas corpus matter. The defendant then filed motions to vacate the Court's opinion of 27 April, 1966, and to treat the petition for habeas corpus as an application for a delayed appeal. See In Re Acosta, 97 Ariz. 333, 400 P.2d 328 (1965). On 5 March, 1968, this Court entered on order treating the petition for a writ of habeas corpus as a motion to reopen the appeal for further consideration. In the order of 5 March, 1968, this Court expressly reserved its decision as to whether to vacate or affirm its opinion of 27 April, 1966 until after a full consideration of the case on the briefs to be submitted pursuant to the order.
The defendant makes five basic arguments on appeal:
(1) That his conviction was unconstitutional as a violation of due process by reason of a conflict of interest on the part of the State;
(2) That the trial court erred in denying defendant's motion to require the prosecution to elect as to which of two offenses defendant was being tried;
(3) That he was denied his Sixth Amendment right to assistance of counsel by reason of his counsel's absence at the time the jury returned its verdict;
(4) That he was denied a fair trial because of the failure of the State to introduce (5) That the trial court committed fundamental error in failing to properly instruct the jury.
all exhibits in evidence, and that he was denied effective assistance of counsel by reason of the State's failure to provide defendant with the services of a ballistics expert at State expense; and
The facts necessary for our determination of the issues presented on this appeal may be summarized as follows:
On the evening of 17 April, 1965, defendant's wife Linda, left the defendant and moved into the home of her parents, Howard Bachman and Bernice Bachman. Thereafter, at approximately 12:30 a.m. defendant drove to the Bachman residence for the purpose of talking to his wife. When defendant arrived at the Bachman residence he knocked on the door. Bachman opened the door and defendant asked if he could see his wife. At this time the defendant had a 22 revolver in his hand. Bachman refused to let the defendant see Linda and started to close the door. The defendant then hit the door with his shoulder and forced his entrance into the Bachman home, still holding the revolver in his hand, and again requested permission to see his wife. Bachman told Mrs. Bachman to telephone the police. While Mrs. Bachman was telephoning the police, defendant fired his revolver toward her, the bullet entering the wall about one foot from her shoulder. The defendant and Bachman then scuffled in the living room, defendant broke loose, went through a doorway into the kitchen and found Linda. He then tried to talk to Linda in a utility room off the kitchen, but a struggle ensued between the defendant and Bachman. During this struggle Mrs. Bachman was present in the utility room. While Bachman and defendant were engaged in the struggle the revolver was again discharged and Mrs. Bachman, who was standing 3 or 4 feet from defendant, was struck midway between her waist and left breast. Thereafter, the police arrived and arrested the defendant.
Defendant contends that his conviction was constitutionally invalid, as in violation of the requirement of fundamental fairness assured by due process of law. The bases this contention upon a purported conflict of interest on the part of the State which resulted from the representation of the defendant's former wife by an Assistant City Attorney for the City of Phoenix, in a divorce action against the defendant which resulted in a divorce decree prior to the conclusion of defendant's preliminary hearing. This divorce was appealed and affirmed. Counterman v. Counterman, 6 Ariz.App. 454, 433 P.2d 307 (1967) review denied.
In support of this argument defendant urges that the State had a direct interest in obtaining a divorce for defendant's former wife so that she would be able to testify against the defendant at the preliminary hearing and trial. Because of this conflict of interest, defendant argues that the State abdicated its responsibility to see that substantial justice was done, thereby depriving the defendant of the procedural fairness implicit in due process of law.
The primary authority relied upon by defendant is Ganger v. Peyton, 4 Cir., 379 F.2d 709 (1967). In that case petitioner was convicted for assaulting his wife. The State prosecuting attorney represented petitioner's wife in a divorce action filed against the petitioner, based on the same assault which was the subject matter of the criminal proceeding. There was evidence that the prosecuting attorney had offered to drop the assault charge if petitioner would agree to a favorable property settlement in the divorce proceeding. On petition for a writ of habeas corpus the Federal District Court reversed petitioner's conviction and the State appealed. The United States Court of Appeals sustained the reversal upon the grounds that the prosecuting attorney's dual representation of the State in the criminal proceeding and the wife in the divorce proceeding violated the concept of fundamental fairness which is assured by 'Because of the prosecuting attorney's own self interest in the civil litigation (including the possibility that the size of his fee would be determined by what could be exacted from defendant), he was not in a position to exercise fairminded judgment with respect to (1) whether to decline to prosecute, (2) whether to reduce the charge to a lesser degree of assault, or (3) whether to recommend a suspended sentence or other clemency.'
due process of law. In so holding the Court, 379 F.2d at page 713, reasoned as follows:
The direct conflict of interest which was clearly present in the Ganger case has not been shown in the instant case. There is nothing in the record indicating that the Assistant City Attorney who represented the defendant's wife in the divorce action also participated in the criminal prosecution of the defendant. We find that the mere representation of the defendant's former wife by an Assistant City Attorney did not present an actual conflict of interest in relation to the State's responsibility in seeing that justice was done in prosecuting the defendant.
Defendant further suggests that he was prejudiced by the purported conflict of interest since, if the divorce had not been obtained, defendant's former wife would have been precluded from testifying at both the preliminary hearing and the trial pursuant to A.R.S. § 13--1802, as amended, which in part provides:
'A person shall not be examined as a witness in the following cases:
1. A husband for or against his wife without her consent, nor a wife for or against her husband without his consent, nor can either, during the marriage or afterwards, be, without consent of the other, examined as to any communication made by one to the other during the marriage.'
In this connection we observe that the defendant was represented at both the preliminary hearing and the trial by counsel who was an experienced and able practitioner. At no time during the preliminary hearing or the trial did defendant's counsel object to the examination of defendant's former wife as a witness against the defendant. We are of the opinion that counsel for the defendant would have objected to the examination of the defendant's former wife as a witness had he deemed it in...
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