State v. Fendler, s. 1
| Decision Date | 11 September 1980 |
| Docket Number | CA-CR,Nos. 1,s. 1 |
| Citation | 622 P.2d 23,127 Ariz. 464 |
| Parties | STATE of Arizona, Appellee, v. Robert H. FENDLER, Appellant. 3376, 1 3748. |
| Court | Arizona Court of Appeals |
On March 7, 1977, Robert H. Fendler (appellant), James R. Holman and Leonard H. Foreman were charged in a seventeen count indictment with criminal conduct in connection with the operation of several financial institutions headquartered in Phoenix, Arizona. The firms involved included the Lincoln and American Thrift Associations and the American Bank of Commerce. On October 13, 1977, co-defendant, Leonard Foreman, entered into a plea agreement with the state and plead guilty to the charge of conspiracy. (Count One). The trial subsequently commenced on October 17, 1977, and continued through February 27, 1978, at which time the jury found appellant guilty of conspiracy, A.R.S. § 13-331 (now A.R.S. § 13-1003), false book entry, A.R.S. § 10-193 (now A.R.S. § 10-136), and failure to file a state corporate income tax return. A.R.S. § 43-179 (now A.R.S. § 43-842). On April 14, 1978, the trial court dismissed the conspiracy count on the basis of duplicity and thereafter entered judgments of guilt on each of the remaining two counts. Appellant was sentenced to serve not less than one nor more than three years on the failure to file count, and not less than four nor more than five years on the false book entry count.
Appellant filed his notice of appeal from the entry of judgment on April 24, 1978 (1 CA-CR 3376). On June 13, 1978, appellant filed a motion to vacate judgment pursuant to Rule 24.2, Arizona Rules of Criminal Procedure, 17 A.R.S. The motion was denied on September 28, 1978. Appellant thereafter filed an untimely notice of appeal from the order denying his motion to vacate. (1 CA-CR 3748). However, this Court suspended the filing requirements and the appeals were subsequently consolidated.
Since the appellant raises a substantial number of issues in his two appeals, we have set forth the necessary facts in the discussion of each individual question.
Appellant contends that the state grand jury was not impaneled according to law because prospective grand jurors were excused from service by the state grand jury commissioner (Commissioner). 1 Appellant asserts that the Commissioner had no authority to unilaterally excuse prospective state grand jurors, or, in the alternative, if she (Commissioner) was vested with some discretionary authority, such discretion was abused under the facts of the present case. He further asserts that the indictment should have been dismissed because the excusals materially altered the composition of the grand jury and eliminated its statewide character.
The impanelment of state grand juries is regulated by statute and the Arizona Rules of Criminal Procedure. A.R.S. § 21-421 et seq., Rule 12, Arizona Rules of Criminal Procedure, 17 A.R.S. The selection and preparation of state grand jurors is specifically governed by Rule 12.22, Arizona Rules of Criminal Procedure, 17 A.R.S., which divides the process into three distinct steps.
The first step is governed by Rule 12.22(B) which is designed to establish the initial pool of prospective state grand jurors:
Assistance.... Upon direction of the Assignment Judge, the jury commissioners of the respective counties shall submit to the Assignment Judge, within such time as he may direct, a specified number of prospective State grand jurors selected at random from their qualified jury boxes, wheels or rosters (otherwise known as current jury lists)....
The next step is governed by Rule 12.22(C) which provides that:
The Assignment Judge shall cause a questionnaire to be sent to each prospective State grand juror. Following return of such questionnaires, the jury commissioner of the county in which the Assignment Judge is serving shall select at random from those responding prospective State grand jurors, who are qualified and not excused, a number of prospective State grand jurors sufficient for final selection of State grand jurors; and this number shall be summoned to appear before the assignment judge for such final selection. (emphasis supplied.)
Appellant argues that the Commissioner's only function pursuant to Rule 12.22(C) is to make a random selection from those prospective grand jurors who respond to the questionnaire, since the county jury commissioners have already completed the qualification and excusal process by the time the names are submitted to the "Assignment Judge." We do not agree.
Rule 12.22(B) does not authorize the county jury commissioners to screen prospective candidates for the state grand jury. Their sole function is to forward a specified number of randomly selected names from their "current jury lists." 2
On the other hand, we believe that Rule 12.22(C) contemplates that the initial qualification and excusal of prospective state grand jurors is to be undertaken by the Commissioner. 3 Consequently, we hold that the Commissioner possessed the necessary authority to excuse those prospective grand jurors who in her opinion were incapable of serving without "undue hardship." 4
The office of "jury commissioner" was established to assist the courts with the jury selection process and to insulate judges from having to consider every request for excusal. A.R.S. § 21-131, See United States v. Flynn, 216 F.2d 354 (2nd Cir. 1954). To achieve these objectives, the jury commissioners were given a broad measure of unilateral discretion in determining whether a prospective juror should be excused from service. A.R.S. § 21-315, See United States v. Gurney, 393 F.Supp. 688 (1974); United States v. Coppola, 296 F.Supp. 903 (1969). 5 While it is true, in the instant case, that the Commissioner was not provided with judicial guidelines regarding the grounds for excusal from state grand jury service, she was guided by the statutory standard of "undue hardship", and the local superior court guidelines concerning the various grounds upon which a person could be excused from county jury service.
While the record reflects that the Commissioner deviated from the county guidelines in particular instances, we find no abuse of discretion.
However, even if we determined that certain jurors were erroneously excused, appellant would be confronted by the rule that a conviction will not be reversed for error in the selection of the grand jury unless the defendant is able to show actual prejudice. 6 State v. Webb, 101 Ariz. 307, 419 P.2d 91 (1966). Appellant's only argument along these lines is that the Commissioner's action resulted in a geographically imbalanced panel comprised of 15 Maricopa County residents and one resident from Graham County. See A.R.S. § 21-423(A). This fact alone fails to even make out a prima facie showing of "actual prejudice" since a defendant is not entitled to be tried or investigated by any particular juror or jurors from separate geographical areas. See State v. Webb. "If the jurors who actually serve are impartial and fair, the fact that the other impartial jurors are erroneously excused is not reversible error." 7 State v. Webb, 101 Ariz. at 309, 419 P.2d at 93.
Appellant next contends that his conviction for failure to file a 1974 state corporate income tax return on behalf of American Thrift Association (American Thrift) was improper and therefore must be reversed.
Appellant was convicted of violating A.R.S. § 43-179(f) (now A.R.S. § 43-842) which provides that:
Any person who, within the time required by or under the provisions of this title, willfully fails to file any return or to supply any information with intent to evade any tax imposed by this title, is punishable by imprisonment in the county jail not to exceed one year, or in the state prison not to exceed five years, or by fine of not more than five thousand dollars, or by both such fine and imprisonment, at the discretion of the court. 8
Appellant initially claims that the indictment was defective because it failed to specify his corporate relationship with American Thrift and to set forth his duty to perform the act in respect of which the violation occurred. 9 The state responds by arguing that the issue was not raised in a timely manner and therefore is waived for purposes of appeal. Rules 13.5(c), 16.1(c), Arizona Rules of Criminal Procedure, 17 A.R.S. We agree. After reviewing the record, we find that the appellant failed to specifically raise the issue in accordance with the requirements of Rule 16.1(b), 10 which now precludes him from asserting the issue on appeal. Rules 13.5(c) and 16.1(c); State v. Puryear, 121 Ariz. 359, 590 P.2d 475 (App.1979).
He next urges that the tax conviction must fall because American Thrift was not obligated to file a return for the taxable period ending December 31, 1974. The resolution of this issue revolves around the construction of certain language found in A.R.S. § 43-141(b)(1) (now A.R.S. § 43-307) which provides that:
Every corporation subject to the tax imposed by this article shall make a return to the tax commission.... (emphasis supplied.)
Appellant asserts that the underscored language should be interpreted as meaning that a corporation's duty to file is dependent upon whether state taxes are actually due and owing. We do not agree.
While our appellate courts have never been called upon to interpret the language in question, the Department of Revenue, which is charged with the responsibility of prescribing...
To continue reading
Request your trial
-
Fendler v. Goldsmith
...The Arizona Court of Appeals rejected both of these contentions and affirmed the false book entry conviction. State v. Fendler, 127 Ariz. 464, 622 P.2d 23, 40-42 (Ariz.App.1980). Fendler's request for review by the Arizona Supreme Court was denied on December 23, Fendler subsequently filed ......
-
State v. Atwood
...with the jury selection process and to insulate judges from having to consider every request for excusal." State v. Fendler, 127 Ariz. 464, 470, 622 P.2d 23, 29 (App.1980). According to defendant, court personnel excused prospective jurors because they were not citizens, they no longer live......
-
State v. FAR WEST WATER & SEWER INC.
...Generally, a co-defendant's guilty plea is not admissible as substantive evidence of another defendant's guilt. State v. Fendler, 127 Ariz. 464, 484, 622 P.2d 23, 43 (App.1980). However, a co-defendant's guilty plea is admissible to impeach the credibility of a witness and prevent a defenda......
-
State v. Morris
...who actually served were not fair and impartial. State v. Webb, 101 Ariz. 307, 309, 419 P.2d 91, 93 (1966); State v. Fendler, 127 Ariz. 464, 470-71, 622 P.2d 23, 29-30 (App. 1980) (extending "actual prejudice" doctrine to excusals by jury commissioner). Because Morris is unable to demonstra......
-
Rule 103 Rulings on Evidence
...1981) (failure to object to evidence of anonymous threatening phone calls received by witness waived issue on appeal). State v. Fendler, 127 Ariz. 464, 622 P.2d 23 (Ct. App. 1980) (defendant must object to evidence of co-defendant's guilty plea or request limiting instruction to preserve is......
-
Rule 105 Limited Admissibility
...policies not relevant, but failure to request limiting instruction waived any error in admitting entire claims manual). State v. Fendler, 127 Ariz. 464, 622 P.2d 23 (Ct. App. 1980) (defendant must object to evidence of co-defendant's guilty plea or request a limiting instruction to preserve......
-
Rule 410 Offer To Plead Guilty; Nolo Contendere; Withdrawn Plea of Guilty
...guilt; court examined facts and circumstances to determine whether jurors' verdict was possibly influenced). State v. Fendler, 127 Ariz. 464, 622 P.2d 23 (Ct. App. 1980) (state entitled to purge any misimpression left by defendant that state was secreting information about co-defendant's cr......