State v. Delgado

• Court: Arizona Court of Appeals
• Writing for the Court: CLABORNE; GRANT, P.J., and CONTRERAS
• Citation: State v. Delgado, 174 Ariz. 252, 848 P.2d 337 (Ariz. App. 1993)
• Decision Date: 09 February 1993
• Docket Number: CA-CR,No. 1,1
• Parties: STATE of Arizona, Appellee, v. Theodore R. DELGADO, Appellant. 90-1612.

Page 337

848 P.2d 337

174 Ariz. 252

STATE of Arizona, Appellee, v. Theodore R. DELGADO, Appellant.

No. 1 CA-CR 90-1612.

Court of Appeals of Arizona Division 1, Department D.

Feb. 9, 1993.

[174 Ariz. 253] Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Crim. Div., and Barbara A. Jarrett, Asst. Atty. Gen., Phoenix, for appellee.

Dean W. Trebesch, Maricopa County Public Defender by Helene F. Abrams, Deputy Public Defender, Phoenix, for appellant.

OPINION

CLABORNE, Judge.

Appellant Theodore Delgado ("defendant") appeals from convictions for one count of attempted second-degree murder and five counts of aggravated assault and the sentences imposed. For the reasons discussed below, we reverse the convictions and remand for a new trial.

PROCEDURAL BACKGROUND

Defendant was indicted on one count of attempted second-degree murder, a class 2 felony, six counts of aggravated assault, class 3 felonies, one count of burglary in the second degree, a class 3 felony, and one count of reckless endangerment, a class 6 felony. The state filed an allegation of Hannah ¹ prior and/or repetitive convictions, an allegation of dangerous nature of felony on counts one through seven, an allegation that defendant was on probation when the offenses were committed, and an allegation of a prior felony conviction for aggravated assault. The state subsequently dismissed the counts in the indictment for burglary and endangerment and the allegation of dangerous nature of felony as to count one. As part of a stipulation, it also dismissed the allegation pursuant to Ariz.Rev.Stat.Ann. ("A.R.S."), section 13-604.02(B) (1989).

The matter was tried to a jury and defendant raised the defense of insanity. Defendant was found guilty of attempted second-degree murder and five counts of aggravated assault, dangerous offenses, and was found not guilty on one count of aggravated assault. Defendant was given aggravated sentences of fifteen years on each count, all sentences to be served concurrently. For purposes of sentencing, count two for aggravated assault was treated as a Hannah prior conviction of count one for attempted second-degree murder. Defendant raises the following issues on appeal:

1. Did the court abuse its discretion in granting the state's motion to amend count one of the indictment to conform to the evidence presented at trial?

2. Did the court abuse its discretion in precluding a defense witness from testifying during the defense case-in-chief or in surrebuttal?

3. Did the court commit fundamental error in instructing the jury on attempted second degree murder?

4. Did the court abuse its discretion in reading a portion of the video-taped deposition of the state's expert witness to the jury and in permitting the jury to refer to a transcribed copy of the deposition?

5. Did the prosecutor's comments during closing argument constitute fundamental error?

6. Did the court err in sentencing Defendant as a repetitive offender on count one of the indictment?

DISCUSSION

A. Amendment of Count One of the Indictment

Count One of the original indictment charged that:

Theodore R. Delgado, on or about the 1st day of November 1989, without premeditation, under circumstances manifesting extreme indifference to human life recklessly engaged in conduct which created a grave risk of death and thereby attempted to cause the death of Anita Espinosa in violation of A.R.S. 13-1104, 13-1101, 13-710, 13-702, 13-801 and 13-812.

After the close of evidence, while formulating jury instructions, the court observed that count one of the indictment was defective because it alleged that defendant attempted to recklessly commit an act and that this is not recognized under Arizona law. See State v. Adams, 155 Ariz. 117, 745 P.2d 175 (App.1987). Defendant moved to dismiss count one of the indictment and the state moved to amend count one to reflect that defendant was guilty of attempted second-degree murder by attempting to commit an intentional act.

The court denied the motion to dismiss and granted the motion to amend to conform to the evidence presented at trial. However, the court permitted both counsel to present additional closing arguments to the jury regarding the appropriate mental state at issue. The court then gave a jury instruction which effectively amended count one. On appeal, defendant argues the court abused its discretion in amending the indictment to conform to the evidence. The state argues defendant was precluded from raising the issue and in any event, the amendment was proper. We agree with the state.

The trial court has considerable discretion in resolving motions to amend an indictment. State v. Sammons, 156 Ariz. 51, 54, 749 P.2d 1372, 1375 (1988). Rule 13.5, Arizona Rules of Criminal Procedure, governs amendments to and defects in charging documents. Under Rule 13.5(b):

The preliminary hearing or grand jury indictment limits the trial to the specific charge or charges stated in the magistrate's order or grand jury indictment. The charge may be amended only to correct mistakes of fact or remedy formal or technical defects, unless the defendant consents to the amendment. The charging document shall be deemed amended to conform to the evidence adduced at any court proceeding.

Rule 13.5(c), Arizona Rules of Criminal Procedure, provides that "No issue concerning a defect in the charging document shall be raised other than by a motion filed in accordance with Rule 16." The comment to Rule 13.5(c) states:

This provision makes any defects harmless error unless timely raised under Rule 16. This treatment is consistent with expanded pretrial discovery in the light of which the formal document is of decreased significance.

Official Comment, Ariz.R.Crim.P. 13.5(c).

Rule 16.1(b) provides in pertinent part that: "All motions shall be made not later than 20 days prior to trial." Rule 16.1(c) further provides that Any motion, defense, objection, or request not timely raised under Rule 16.1(b) shall be precluded, unless the basis therefor was not then known, and by the exercise or reasonable diligence could not then have been known, and the party raises it promptly upon learning of it.

We believe defendant is precluded from raising the issue. In this case, defendant did not make a timely motion under Rule 16 and therefore waived the right to raise it at the end of trial. State v. Anaya, 165 Ariz. 535, 542, 799 P.2d 876, 883 (App.1990). Moreover, the defect was one which defendant could easily have discovered by the exercise of reasonable diligence prior to trial. State v. Puryear, 121 Ariz. 359, 362, 590 P.2d 475, 478 (App.1979). In any event, we do not believe defendant has been prejudiced by such amendment.

Under Rule 13.5(b), Arizona Rules of Criminal Procedure, the charging document shall be deemed amended to conform to the evidence adduced at any hearing and no motion or formal action is required. Official Comment, Ariz.R.Crim.P. 13.5(b). However, amending an indictment to conform to the evidence is subject to limitations to protect a defendant's constitutional rights. State v. Phelps, 125 Ariz. 114, 119, 608 P.2d 51, 56 (App.1979). As stated in State v. Barber, 133 Ariz. 572, 577, 653 P.2d 29, 34 (App.1982):

In determining the propriety of an amendment to an indictment to conform to the evidence, this court must consider whether the allowing of that amendment would violate two important rights of the defendant, to wit: (1) the defendant must have been put on notice of the charges against him with an ample opportunity to prepare to defend against them; and (2) the acquittal of the amended charge must provide a double jeopardy defense to a subsequent prosecution on the original charge.

Under the facts of this case, the amendment to conform to the evidence was not improper. Because of extensive discovery, defendant had adequate notice of the act with which he was charged and had an opportunity to prepare and defend against it. State v. Woodall, 155 Ariz. 1, 744 P.2d 732 (App.1987). Further, there is nothing in the record to suggest that defendant lacked notice of the applicable mens rea. State v. Winter, 146 Ariz. 461, 706 P.2d 1228 (App.1985).

Defendant does not argue that the state's proof at trial was at variance with the evidence presented to the grand jury or that he had no notice of the evidence to be presented at trial. State v. Barnett, 173 Ariz. 282, 842 P.2d 1295 (App.1991). State v. Roscoe, 145 Ariz. 212, 700 P.2d 1312 (1984), cert. denied, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 525 (1985). Thus, defendant was able to adequately prepare his insanity defense. Also, in this case, the amendment to the indictment required the state to meet a higher burden of proof. The state was required to show that defendant acted "intentionally" rather than merely "recklessly." State v. Johnson, 157 Ariz. 502, 759 P.2d 648 (App.1988). In this regard, defendant cannot show he was in any way misled or prejudiced by the defect. State v. Archer, 124 Ariz. 291, 293, 603 P.2d 918, 920 (App.1979). Finally, it is clear that defendant has a defense to subsequent prosecution under double jeopardy principles. We will not reverse the conviction on this ground.

B. Preclusion of Defense Expert Witness

Defendant argues that the trial court committed reversible error when it precluded a defense witness, Dr. Susan Parrish, from testifying in defendant's case-in-chief or in surrebuttal. Defendant was indicted on November 8, 1989. On January 30, 1990, counsel filed a motion to examine defendant's mental condition at the time of the offense. On April 23, 1990, defendant filed a motion to continue trial, advising the court that defendant had employed Dr. Donald Tatro as an expert witness on the issue of insanity and that additional time was needed to complete his evaluation.

On May 17, 1990, defendant filed a notice of defenses which listed insanity as a defense and named Dr. Tatro as witness in support of the defense. The state then filed...