State v. Klokic

• Decision Date: 29 April 2008
• Docket Number: No. 1 CA-CR 05-0917.,1 CA-CR 05-0917.
• Parties: STATE of Arizona, Appellee, v. Nermin KLOKIC, Appellant.
• Court: Arizona Court of Appeals

196 P.3d 844

219 Ariz. 241

STATE of Arizona, Appellee, v. Nermin KLOKIC, Appellant.

No. 1 CA-CR 05-0917.

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

April 29, 2008.

Review Denied October 28, 2008.

Terry Goddard, Attorney General by Randall M. Howe, Chief Counsel, Criminal Appeals Section and Karla Hotis Delord, Assistant Attorney General Attorneys, Phoenix, for Appellee.

James J. Haas, Maricopa County Public Defender by Joel M. Glynn, Deputy Public Defender Attorneys, Phoenix, for Appellant.

OPINION

SNOW, Judge.

¶ 1 Nermin Klokic appeals his conviction on one count of aggravated assault. Because we cannot determine that the jury unanimously concluded that Klokic committed a specific act that constituted the criminal count for which he was charged, we reverse Klokic's conviction and remand for a new trial.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 This appeal stems from a "road rage" incident between Klokic and the occupants of another vehicle.¹ According to the testimony at trial, Klokic cut off another vehicle containing two occupants, including Brian M., while Klokic was driving westbound on Cactus Road in Phoenix. After Klokic cut off the other vehicle, the two vehicles drove parallel to each other for some distance, during which time the vehicles' occupants interacted.

¶ 3 According to Klokic, Brian M. threw a bottle at Klokic's vehicle during this exchange. In response, Klokic drew a semiautomatic handgun from inside his vehicle and pointed it at Brian M. Sometime thereafter, Klokic pulled his car in front of Brian M.'s vehicle, forcing it to stop.

¶ 4 Brian M. acknowledged that he retrieved a wrench prior to getting out of his vehicle and was carrying it as he emerged. As he got out of the car, Klokic drew his handgun a second time and again pointed it at Brian M., this time because, according to Klokic, Brian M. was threatening one of Klokic's passengers with the wrench. Brian M. claimed that Klokic also pointed the handgun at Brian M.'s passenger.

¶ 5 Klokic was subsequently arrested and indicted on two counts of aggravated assault. The indictment's two counts were identical except that one count was for Klokic's alleged assault on Brian M. and the other count was for Klokic's alleged assault on Brian M.'s passenger. Count one, on which Klokic was subsequently convicted, alleged that "NERMIN KLOKIC, on or about the 19th day of March, 2004, using a handgun, a deadly weapon or dangerous instrument, intentionally placed [Brian M.] in reasonable apprehension of imminent physical injury."

¶ 6 To prove this count, the prosecution introduced testimony that Klokic pointed the handgun at Brian M. on two separate occasions — once from inside his car while the cars were in motion and again after the cars had stopped and the street confrontation had begun. The State summarizes its case-in-chief as to this count as follows: "[Brian M.] testified to the same two incidences of Appellant pointing the gun at him, as referred to by the prosecutor in his opening statement." (Emphasis added.) In its closing argument, the prosecution told the jury that "[i]f you want to believe [the alleged pointing of the handgun at Brian M.] happened on the street, which it did, in the car, which it did, either one will suffice." (Emphasis added.)

¶ 7 After the State's case-in-chief, the defense asked the court to require the prosecution either to elect which particular act it was charging as the assault or to instruct the jurors that they must unanimously agree that Klokic committed a particular act that constituted the crime of assault. The trial court denied Klokic's motion, ruling that he had waived his challenge to the indictment by failing to raise it before trial and that "the State can choose how to draft its indictments if it is one continuance [sic] offense; and apparently that is the theory of the State, that it's one continuance [sic] offense as to Count One and Count Two."

¶ 8 For his part, Klokic maintained that he never pointed the handgun on either occasion. He also argued in the alternative, however, that even if the jury found that he did point the handgun at Brian M., he was justified by the circumstances in doing so. He argued that he would have been acting both in self-defense and in defense of others when he drew his handgun after Brian M. threw the bottle at his vehicle while the vehicles were in motion. And, once the vehicles came to a stop, he would have been acting in defense of his passenger when he drew his handgun in response to Brian M. threatening his passenger with the wrench. The jury was instructed on both defenses.

¶ 9 The jury found Klokic guilty of aggravated assault on count one (against Brian M.), but found him not guilty on count two (against Brian M.'s passenger). Klokic timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003) and 13-4033 (2001).

ANALYSIS

¶ 10 On appeal, the State alleges that Klokic waived any duplicity² objection to the indictment by failing to timely object to it. However, the indictment here was not duplicitous. An indictment is subject to dismissal as duplicitous if it charges "two or more distinct and separate offenses in a single count." Schroeder, 167 Ariz. at 51, 804 P.2d at 780; see also State v. Whitney, 159 Ariz. 476, 480, 768 P.2d 638, 642 (1989) ("The law in Arizona requires that each offense must be charged in a separate count."); Ariz. R.Crim. P. 13.3(a) (requiring separate counts for each offense). The indictment here did not charge two separate assaults in a single count; rather, it merely alleged that Klokic "intentionally placed [Brian M.] in reasonable apprehension of imminent physical injury" by use of a handgun, leaving unspecified the precise act or acts that constituted the alleged assault.

¶ 11 Klokic's objection at trial, and the principal thrust of his argument on appeal, is that, while the indictment only charged a single count, the State, in its proof of this count at trial, presented evidence of two aggravated assaults against Brian M. Previous cases have highlighted the difference between a count of an indictment that is duplicitous on its face and a count that alleges a single criminal act, which the prosecutor attempts to prove with evidence of multiple criminal acts. See Schroeder, 167 Ariz. at 54, 804 P.2d at 783 (Kleinschmidt, J., concurring) (explaining the technical inaccuracy and practical peril of characterizing the latter category of indictment, which actually charges only one offense in each count, as "duplicitous"); see also State v. Anderson, 210 Ariz. 327, 336-37, ¶ 20, 111 P.3d 369, 378-79 (2005) (explaining that when an indictment charges a single crime, yet evidence of more than one alleged criminal act is presented at trial to prove that crime, there is potential error that is not caused by a duplicitous indictment).

¶ 12 When the text of an indictment refers only to one criminal act, but multiple alleged criminal acts are introduced to prove the charge, our supreme court has sometimes referred to this problem in shorthand as a duplicitous charge rather than a duplicitous indictment. It has further noted, however, that such a flaw potentially presents the same problems as a duplicitous indictment. Depending upon the context, it can deprive the defendant of "adequate notice of the charge to be defended," create the "hazard of a non-unanimous jury verdict," or make it impossible to precisely plead "prior jeopardy [ ] in the event of a later prosecution." State v. Davis, 206 Ariz. 377, 389, ¶ 54, 79 P.3d 64, 76 (2003) (quoting Whitney, 159 Ariz. at 480, 768 P.2d at 642).

¶ 13 Because the asserted error goes not to the indictment on its face, but to the evidence presented to prove a count of the indictment, Klokic had no basis to object before the evidence was presented. Once the basis for Klokic's objection arose, and before the end of trial, Klokic requested that the court either require the prosecution to elect which of the alleged assaults against Brian M. constituted the offense with which he was charged, or that it instruct the jurors that they must unanimously agree that Klokic committed at least one of the particular assaults alleged. By raising the objection, Klokic preserved the issue. Thus, Klokic's assertion of error was not waived by his failure to raise the issue before trial.

¶ 14 A prosecutor has the discretion to "charge crime in a variety of forms to avoid fatal variance of the evidence." United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 225, 73 S.Ct. 227, 97 L.Ed. 260 (1952). Thus, in drafting an indictment, the State may choose to charge as one count separate criminal acts that occurred during the course of a single criminal undertaking even if those acts might otherwise provide a basis for charging multiple criminal violations. In such cases, however, if the State introduces evidence of multiple criminal acts to prove a single charge, the trial court is normally obliged to take one of two remedial measures to insure that the defendant receives a unanimous jury verdict. It must either require "the state to elect the act which it alleges constitutes the crime, or instruct the jury that they must agree unanimously on a specific act that constitutes the crime before the defendant can be found guilty."³ Schroeder, 167 Ariz. at 54, 804 P.2d at 783 (Kleinschmidt, J., concurring); see also Davis, 206 Ariz. at 390, ¶ 61, 79 P.3d at 77 (holding that the State must make an election where failure to do so risks a non-unanimous verdict); Hash v. State, 48 Ariz. 43, 50, 59 P.2d 305, 308 (1936) (stating, in a statutory rape case, that where the evidence "tends to show . . . several acts of intercourse . . . it is incumbent upon the prosecution to elect which one of such acts it relies upon for a conviction"); State v. Solano, 187 Ariz. 512, 520, 930 P.2d 1315, 1323 (App.1996) ("Requiring such an election safeguards a defendant's...