State v. Hocker, 3374--PR

• Decision Date: 28 October 1976
• Docket Number: No. 3374--PR,3374--PR
• Parties: STATE of Arizona, Appellee, v. Rhonda HOCKER, Appellant.
• Court: Arizona Supreme Court

Page 784

556 P.2d 784

113 Ariz. 450

STATE of Arizona, Appellee, v. Rhonda HOCKER, Appellant.

No. 3374--PR.

Supreme Court of Arizona, In Banc.

Oct. 28, 1976.

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

R. Kelly Hocker, Glynn W. Gilcrease, Jr., Tempe, for appellant.

GORDON, Justice.

Appellant, Rhonda Hocker, was convicted of possession of marijuana in violation of A.R.S. § 36--1002.05, a misdemeanor. She was placed on six months probation and fined $250.00. The Court of Appeals, Division One, 25 Ariz.App. 93, 541 P.2d 419 (1975), affirmed. This Court granted review. The opinion of the Court of Appeals is vacated. The judgment of the trial court is reversed.

The facts necessary to this review are as follows: On March 8, 1974, Chief Walter Maule and Sergeant Robert Tubbs of the Winslow Police Department (along with other law enforcement officers) were patrolling the area around Winslow in an unmarked car following vague citizen complaints of marijuana parties. Similar patrols had taken place for the last three weekends, all without success. These actions were not prompted by any specific report of crime or by information from an informer. The officers testified that although they had not found a party, they had been stopping cars for investigation in the general area of the alleged party.

Around midnight, Maule and Tubbs were driving down the highway toward Winslow when they saw a car about 100--200 yards off the highway on a narrow, single lane, dirt road. They backed up and turned down the road to meet the car which was coming toward them. As the two vehicles approached, the driver of the other car, Donald Dowd, drove almost entirely off the road and stopped with one wheel in a small drainage ditch. Maule and Tubbs continued to approach until they reached a point where the left front fender of their car was opposite the left front fender of Dowd's car. At this point, they noticed the cab of the car was filled with smoke.

Maule and Tubbs stopped their car, got out, and walked toward the driver's side of the Dowd car. They had not yet revealed their official status. As they approached, Dowd rolled the window down and both officers recognized the smell of marijuana smoke. Dowd opened the door and stepped from the car to speak with Tubbs. Maule walked around the car to the passenger side where the appellant in this case, Rhonda Hocker, was seated. As he opened the door, she was sliding across the seat toward the driver's side. Maule grabbed her wrist and appellant pushed a bag down inside her jeans. Maule then led appellant out of the car and asked her what she had put down her pants. Receiving no answer, he handcuffed her behind her back. A few moments later appellant said, 'Oh, hell, it's marijuana; get it.' Maule said he would take her to town and the matron would retrieve it. Then appellant reached down and pulled the bag out of her pants and handed it to Maule.

At that point the appellant was advised she was under arrest for possession of marijuana and placed in the front seat of Maule's car. Tubbs advised her of her Miranda rights and then she and Dowd were taken to the Winslow Police Department and booked.

A Navajo County Grand Jury returned an indictment on March 11, 1974 charging appellant with the crime of possession of marijuana. Appellant was tried before a jury, convicted of possession of marijuana, a misdemeanor, and sentenced.

Appellant raises five assignments of error: first, the indictment was invalid because (1) the trial judge erroneously instructed the Grand Jury that nine negative votes were needed for a 'No Bill,' (2) he gave an instruction implying that there was more evidence thus encouraging the return of an indictment, and (3) the prosecuting attorney improperly commented on the evidence; second, the evidence should have been suppressed because (1) the burden of proof was improperly allocated at the motion to suppress hearing, (2) the detention, arrest and seizure were illegal and (3) Miranda warnings were not given to appellant prior to the custodial interrogation which led directly to the officers obtaining evidence; third, the failure of the duly appointed court reporter to timely provide a transcript of the initial motion to suppress prejudiced appellant's right to a fair trial; fourth, the court should have presumed prejudice where defense counsel's notes, documents and transcripts remained on the table at which the jury deliberated although the bailiff had informed the court that the items had been removed; and fifth, the cumulative effect of these errors deprived defendant of a fair trial, warranting reversal.

The Grand Jury Indictment

Appellant argues that the trial court should have granted her motion to quash the grand jury indictment. The first ground urged by appellant is the incorrect instruction concerning the requirements for a 'No Bill.' The trial court said:

'Now when you get the evidence completed, some of you might think there is probable cause and others think there isn't probable cause. But when you vote there has got to be at least nine to come up with a True Bill and I understand also at least nine to come up with a No Bill, and if you don't have at least nine, one way or the other, you haven't arrived at a decision with regard to the indictment. If you decide you are deadlocked and can't break that deadlock with discussion among yourselves--In other words, break it to the extent of having nine either vote affirmative for True Bill or nine vote negative for No Bill--then you would be deadlocked, in which event the County Attorney's Office should be notified.'

'So long as you have less than nine one way or the other, then you probably should ask for more evidence, ask it be put off, after you state you are hopelessly deadlocked, and I would probably be called in in that event.' (Emphasis added.)

This instruction is, of course, clearly erroneous since there is in Arizona no provision for return of a 'No Bill' of indictment by a grand jury. The statute requires only that nine jurors concur in order to return a true bill of indictment. See A.R.S. § 21--414 and Rule 12.7, Rules of Criminal Procedure, 17 A.R.S.

The State concedes this error but argues that it was harmless. We agree. The record shows that the vote to indict was unanimous. The absence of even a single negative vote persuades us that the error in this case is harmless.

The second ground urged by appellant is the court's instruction to the grand jury that if they could not agree they 'probably should ask for more evidence.' Appellant argues that this statement constitutes an indirect comment on the evidence because it assumes there is more evidence. While the remark was improper, we fail to see how any prejudice resulted. The jury did not ask for more evidence and the reasonable inference is that they concluded that the evidence before them was sufficient.

The third ground urged by appellant involves remarks by the county attorney in his presentation of the case to the grand jury. As the Court of Appeals has stated, exhortations and factual interpretations by the prosecutor are improper. State v. Good, 10 Ariz.App. 556, 460 P.2d 662 (1969). The prosecutor must not attempt to influence the grand jury or invade its province. The prosecutor who appears before a grand jury has a particularly weighty duty not to influence the jury because the defendant has no representative to watch out for his interests. Cf. State v. Superior Court In and For County of Pima, 102 Ariz. 388, 430 P.2d 408 (1967).

The prosecutor began his closing remarks with 'I think the evidence is clear.' Also, in explaining why appellant was charged as a principal as opposed to an accessory, the prosecutor made a conclusory statement as to the evidence. While we find these remarks injudicious, they do not rise to the level of impropriety which would require us to reverse the trial court's denial of the motion to quash the indictment and to order new grand jury proceedings. We find no attempt to influence the deliberations of the grand jury or usurp its functions. Cf. State v. Good, supra.

Appellant argues that any sort of error in the grand jury proceedings invalidates the indictment even without a showing of prejudice to the defendant. We disagree. Denial of a motion to quash the indictment is within the sound discretion of the trial court. State v. Good, supra. Absent a showing of prejudice, the errors alleged in this grand jury proceeding do not constitute reversible error. Since we find no prejudice here, the trial court's denial of the motion to quash was proper.

The Motion to Suppress

Appellant argues that the trial court should have granted her motion to suppress evidence. The first ground urged by appellant is that the trial court improperly shifted the burden of proof to appellant during the hearing on the motion. The governing rule is Rule 16.2(b) of the Rules of Criminal Procedure, A.R.S. 17:

'b. Burden of Proof on Pretrial Motions to Suppress Evidence. The prosecutor shall have the burden of proving, by a preponderance of the evidence, the lawfulness in all respects of the acquisition of all evidence which he will use at trial. However, whenever the defense is entitled under Rule 15 to discover the circumstances surrounding the taking of any evidence by confession, or search and seizure, or defense counsel was present at the taking, or the evidence was obtained pursuant to a valid search warrant, the prosecutor's burden of proof shall arise only after the defendant has come forward with evidence of specific circumstances which establish a prima facie case that the evidence taken should be suppressed.'

The record gives no clear indication as to how the trial court allocated the burden of proof. The trial court never came to a decision on the facts; the court stated:

'The problem is, the Court does not, is not a...