State v. Heise
| Decision Date | 08 December 1977 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 573 P.2d 924,117 Ariz. 524 |
| Parties | STATE of Arizona, Appellee, v. Eugene Henry HEISE, Appellant. 2299. |
| Court | Arizona Court of Appeals |
Appellant appeals his conviction of the crime of voluntary manslaughter, raising these issues:
(1) Did the trial court abuse its discretion in granting the state's motion for a continuance, thus violating Rule 8, Arizona Rules of Criminal Procedure dealing with speedy trial?
(2) Was there insufficient evidence to convict appellant of voluntary manslaughter?
(3) Did the trial court improperly impose sanctions on appellant for the alleged failure to comply with discovery?
The defendant-appellant, Eugene Henry Heise, was originally charged with the murder of Bert Reed. Following a preliminary hearing, arraignment, plea of not guilty and a jury trial, the defendant was convicted of voluntary manslaughter and was sentenced to not less than nine nor more than ten years in the Arizona State Prison.
Because of our disposition in this matter, a detailed factual recitation of the acts leading up to the death of Mr. Reed is not necessary.
The defendant was originally arraigned on February 25, 1976. Under Rule 8.2(c), Rules of Criminal Procedure, 1 the defendant was required to be brought to trial within 120 days or May 26, 1976. However, on May 12, 1976, counsel for the state and the defendant, by written stipulation, extended the time for trial for 30 days. By minute entry order the trial was originally set for June 13, 1976, but on the court's own motion extended to June 23, 1976. On that date, the state moved for a continuance on the grounds that Dr. Karnitschinz, the Maricopa County medical examiner and apparently the only witness qualified to testify as to the cause of death of the victim, was on vacation and unavailable until July 6, 1976. The defendant objected to the motion to continue. The trial court granted the state's motion, reset trial for July 21, 1976, and ordered that the period from June 23, 1976 to July 21, 1976 be an excluded time period for the purposes of the speedy trial requirements of Rule 8, Rules of Criminal Procedure. On July 1, 1976, the defendant moved to dismiss the prosecution for violation of Rule 8. This motion was denied and the defendant brought a special action petition in this court questioning the denial of his motion to dismiss. This court denied the petition for special action on the grounds that the denial of defendant's motion to dismiss could properly be raised on appeal.
The facts surrounding the unavailability of Dr. Karnitschinz are that on May 6, 1976, he wrote a letter to the Maricopa County Attorney's office advising the prosecutor that he would be on vacation from June 18, 1976 until July 3, 1976. The prosecution did not bring this matter to the attention of the trial court, when the court apparently on its own motion moved the trial date from June 10, 1976 (when the doctor would be available) to June 23, 1976 (when he would be on vacation.) Rather, the prosecutor waited until the day of trial to urge the motion for continuance. Waiting until this time to urge the motion where the prosecutor had prior knowledge of the grounds for the motion, rendered the motion untimely under Rule 16, Rules of Criminal Procedure.
Rule 8.5(b), Rules of Criminal Procedure provides:
Continuances granted under this rule become excluded periods under Rule 8.4(d) for the purposes of determining whether the sanctions imposed by Rule 8.6 for denial of speedy trial should be levied. Rule 8.6 now provides:
"If the court determines after considering the exclusions of Rule 8.4 that a time limit . . . has been violated, it shall on motion of the defendant, or on its own initiative, dismiss the prosecution with or without prejudice."
These interrelated rules seem to have one major problem, if the stated purpose of the rule, that is, bringing the defendant quickly to trial, is to be observed. If the trial court improperly grants a continuance under Rule 8.5(b), the result may be that the defendant, in the final analysis, will not receive a speedy trial, but in fact if he prevails in urging his speedy trial rights, the exact opposite may occur. This can occur in the following manner. Assume that the trial court improperly grants a continuance under Rule 8.5(b), the result being that the period of the continuance cannot be an excluded period under Rule 8.4(d) and the defendant is thus brought to trial in violation of time limitations imposed by Rule 8.2. However, trial proceeds and the defendant is convicted and appeals, urging Rule 8 violations. If the appellate court agrees and finds the continuance was improperly granted, the only remedy is to remand for dismissal either with or without prejudice by the trial court under Rule 8.6. If the trial court dismisses without prejudice and the county attorney refiles, under the authority of State v. Avriett, 25 Ariz.App. 63, 540 P.2d 1282 (1975) the time limitations of Rule 8 begin anew upon the refiling. The result insofar as the defendant's rights to be speedily brought to trial is obvious.
This problem is compounded when we consider the scope of appellate review of the two trial court decisional points in this scheme the granting of the continuance initially and the determination of whether the prosecution should be dismissed with or without prejudice. As to the initial granting of the continuance, Rule 8.5(b) appears to have narrowed the broad discretionary powers vested in trial courts to grant continuances under old criminal Rule 241, allowing these continuances only where (1) "extraordinary circumstances exist," and (2) where the "delay is indispensable to the interests of justice." On the other hand, it appears the trial court is still vested with broad discretionary powers in determining whether the...
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