State v. Henderson

• Decision Date: 17 May 1977
• Docket Number: No. 1,CA-CR,1
• Citation: 569 P.2d 252,116 Ariz. 310
• Parties: The STATE of Arizona, Appellee, v. Adell HENDERSON, Appellant. 1720.
• Court: Arizona Court of Appeals

Page 252

569 P.2d 252

116 Ariz. 310

The STATE of Arizona, Appellee, v. Adell HENDERSON, Appellant.

No. 1 CA-CR 1720.

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

May 17, 1977.

Rehearing Denied July 11, 1977.

Review Denied Sept. 15, 1977.

Bruce E. Babbitt, Atty. Gen., William J. Schafer, Chief Counsel Crim. Div., R. Wayne Ford, Asst. Attys. Gen., Phoenix, for appellee

Ash & Reeb, R. Ray Addington, Mesa, for appellant.

OPINION

OGG, Judge.

The appellant Adell Henderson appeals from the convictions based upon jury verdicts finding him guilty of five offenses in two separate trials. In the first trial before Judge Morris Rozar appellant was found guilty of the first degree rape and kidnapping of Claudia Mayberry and attempted burglary of the apartment of Janice Morrison. In the second trial before Judge Howard V. Peterson, following one mistrial, appellant was found guilty of the first degree rape of Lynn Ellen Johnson and the concomitant burglary of her apartment. A statement of salient facts follows.

Lynn Ellen Johnson was raped in her apartment in the early morning hours of February 24, 1975. Her assailant gained entry to the apartment by breaking a window and entering her infant daughter's room. When Ms. Johnson went in her daughter's room to investigate, the assailant held a knife to her throat and threatened the life of her daughter if she did not submit. After one or two minutes of confrontation which included some conversation, Ms. Johnson recognized her assailant as the same man she had seen standing outside her daughter's room four days earlier and to whom she had addressed herself, inquiring what he was doing. The assailant completed the crime and left.

Claudia Mayberry was abducted from her apartment and raped in a nearby vacant apartment in the early morning hours of March 6, 1975. Several hours earlier, before she went to bed, one of her apartment windows had been broken. She had been concerned and called a friend. Later, while sleeping, she was awakened by noises and another window was broken. When she tried to use the telephone the line was dead and it was subsequently ascertained that the cable to her apartment had been severed. A male voice outside the second broken window said, "Come out; I know you're in there" and "If you come out, I won't hurt you; if you don't come out, I'm going to come in and kill you." Ms. Mayberry tried to arouse her neighbor by pounding on the apartment wall but when there was no apparent response she did as commanded. She was taken by her assailant to a nearby apartment in the complex, No. 2429, which had recently been vacated by Susan Daniels. Susan Daniels testified at the trial that during the preceding weekend while still occupied by her, the apartment had been broken into by the window and her purse stolen. The purse was later found and returned to her with all of its contents except the keys to her car and the apartment. Marie Amos, who with her husband owned the apartment complex, testified she cleaned and secured apartment No. 2429 on March 5. When Ms. Mayberry's abductor led her into this apartment, the door was not locked.

Appellant was arrested on the night of April 4, 1975, shortly after he was observed by Harry Brennan, breaking a window of an apartment located in the same complex and occupied by Janice Morrison. Ms. Morrison was not in the apartment at the time. Harry Brennan lived in the complex and testified that during the previous month he had seen appellant in the complex area on three different occasions, always alone and at night. Appellant did not live in or near the complex and denied ever being there except on the night of April 4. Shortly after appellant was arrested he participated in a line-up at the Phoenix Police Station. Detective Nolan who had been investigating the two rape cases called Lynn Johnson and Claudia Mayberry and requested them to view the line-up, indicating he had a suspect in custody. There were a total of six men in the line-up, all male, black and dressed alike. The two women viewed the line-up separately and each had the opportunity to select a statement for the participants to repeat. Each of the women identified appellant as her assailant. Lynn Johnson's identification was somewhat quicker and more positive than Claudia Mayberry's, but the latter made a strong voice identification. After the line-up was over Detective Nolan told the women they identified the man whom he regarded as the likely suspect.

All five offenses were charged in a single information. Appellant's counsel moved to sever all counts for trial. The two rape charges with their connected offenses (burglary in the case of Lynn Johnson, kidnapping in the case of Claudia Mayberry) were severed and the count charging attempted burglary of the Morrison apartment was tried with the offenses against Claudia Mayberry.

Five questions have been presented on appeal:

1. Was appellant twice placed in jeopardy by reason of the declaration of a mistrial after the first trial of the charges relating to Lynn Johnson, when the jury indicated it would be unable to reach a verdict?

2. Was the preindictment line-up unduly suggestive and if it was, did it render the line-up identifications inadmissible?

3. Was it prejudicial error to allow the prosecution to use for impeachment appellant's 1958 convictions in Illinois for armed robbery and assault with intent to murder?

4. Did the trial court abuse its discretion in denying appellant's motion to sever the attempted burglary charge relating to the Morrison apartment from the charges relating to Claudia Mayberry?

5. Was it error to admit evidence of the burglary of Susan Daniels' apartment and of other incidents of unlawfulness in the apartment complex?

We will consider these issues in order and the last two issues together.

DOUBLE JEOPARDY

The record before us shows that following selection of the jury the first trial of the Johnson offenses commenced October 14, 1975. The jury began deliberating at 3:52 p. m. on the following day. At 4:14 the jury requested a "read back" of a portion of the testimony, which was denied. Court was reconvened at 4:30 and the jury dismissed until 9:30 a. m. the following morning. At 11:25 a. m. the next day the trial judge was advised by note that the jury was deadlocked and would apparently be unable to reach a verdict. The jury was called to the courtroom and the foreman confirmed his belief that a verdict would not be possible. The court then declared a mistrial and immediately set the date of the new trial.

The record discloses that immediately after this proceeding, the court and both counsel directed questions to one of the jurors, Loren Sullivan. Sullivan was not listed on the panel of jurors selected to try the case and the record indicates that when his presence became known at the end of the trial a stipulation was entered into allowing him to participate in the deliberations.

Appellant's counsel on appeal did not represent him in the trial court. His trial counsel, however, represented him throughout all three trials. No claim of former jeopardy was ever made in the trial court before, during or after the second trial of the Johnson offenses. The issue is raised for the first time on appeal.

Premature declaration of a mistrial after the jury has commenced deliberating can be the basis of a claim of double jeopardy. United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824); Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949); United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); State v. Moore, 108 Ariz. 532, 502 P.2d 1351 (1972). Were the question properly before us, we would have to determine whether the trial court abused its discretion in declaring a mistrial at the time and under all of the circumstances disclosed by the record before us. State v. Moore, supra. Those circumstances would include not only the actual time devoted to deliberating, here approximately two and one-half hours, but also the fact that the jury had "slept" on the case after a relatively short trial and the fact that both court and counsel appeared to be very much concerned with the presence of the unaccounted for juror Sullivan. We would consider, also Justice Holohan's observations in State v. Moore, supra:

A trial judge is often presented with a dilemma in situations involving long deliberation by juries. If he insists on prolonging the deliberation after the jurors have expressed the feeling that they cannot reach a verdict, the trial judge may then be accused of trying to coerce a verdict. Id. at 536, 502 P.2d at 1355.

We do not reach the issue. While it has been held that double jeopardy may not be raised for the first time on appeal, State v. Veres, 7 Ariz.App. 117, 436 P.2d 629 (1968), we do not confine ourselves to that proposition. Consent, in the absence of intentional prosecutorial misconduct or other extraordinary circumstances, removes the bar of double jeopardy, State v. Marquez, 113 Ariz. 540, 558 P.2d 692 (1976); State v. Shaw, 6 Ariz.App. 33, 429 P.2d 667 (1967). We believe that consent is fairly apparent from the record which has been put before us. See State v. Ballinger, 19 Ariz.App. 32, 504 P.2d 955 (1973).

Division Two of this court has held that consent will not be inferred from mere silence or failure to object. State v. Fenton, 19 Ariz.App. 274, 506 P.2d 665 (1973). We do not disagree with the proposition that consent need not be inferred from silence alone, but we believe that silence taken together with and in the context of other circumstances can indicate consent. See, generally, Annot., 63 A.L.R.2d 782 (1959). There is considerably more than mere silence here. Appellant's attorney actively participated in interrogating the mysterious juror Sullivan. This was reported as were the in-court proceedings in the declaration of mistrial. There was every opportunity to register the spirit if not the letter of...