State v. LaBarre

• Decision Date: 01 February 1977
• Docket Number: No. 1,CA-CR,1
• Citation: State v. LaBarre, 561 P.2d 764, 114 Ariz. 440 (Ariz. App. 1977)
• Parties: STATE of Arizona, Appellee, v. Paul David LaBARRE, Appellant. 1613.
• Court: Arizona Court of Appeals

Page 764

561 P.2d 764

114 Ariz. 440

STATE of Arizona, Appellee, v.Paul David LaBARRE, Appellant.

No. 1 CA-CR 1613.

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

Feb. 1, 1977.

Rehearing Denied March 8, 1977.

Review Denied March 22, 1977.

Bruce E. Babbitt, Atty. Gen. by William J. Schafer, III, Chief Counsel, Crim. Div., Shirley H. Frondorf, Asst. Atty. Gen., Phoenix, for appellee.

Sorenson, Esser & Moore by Fred R. Esser, Phoenix, for appellant.

OPINION

SCHROEDER, Presiding Judge.

Appellant appeals from his conviction and sentence to consecutive terms of not less than one nor more than 14 years on six counts of perjury arising from his testimony in a prior prosecution for robbery.¹This Court has carefully reviewed the voluminous record.We find that two of the perjury counts involved answers to essentially the same question, and therefore vacate the conviction on one of those counts.We find not other reversible error and affirm the remaining convictions and sentences.

The issues raised by the appellant can be summarized as follows:

1.Whether defendant can properly be convicted of multiple counts of perjury arising from testimony in one trial.If so, were two of the counts so redundant as to result in double punishment?

2. whether defendant was denied his rights to speedy trial.

3.Whether the State improperly amended the information shortly before trial to substitute the exact day of commission of the alleged crime for the approximation contained in the original information.

4.Whether the trial court should have made inquiry of the jury members concerning allegedly prejudicial remarks made in their presence.

5.Was there fundamental error in connection with the admission and instructions to the jury on certain statements made by the defendant after the defendant had withdrawn any objection to the admission of the statements?

6.Does the State's failure to make certain disclosures to the defendant require reversal?

7.Should certain identification testimony have been suppressed?

8.Was testimony concerning a prior shooting improperly admitted?

9.Was there improper restriction of the defendant's right to cross-examine certain witnesses?

10.Was the sentence excessive?

11.Was there error in the court's refusal to give requested accomplice and credibility instructions?

12.Should a mistrial have been declared on the basis of certain remarks by the prosecutor?

13.Should the State have been collaterally estopped from charging the defendant with perjury?

MULTIPLE COUNTS OF PERJURY

The defendant was charged and convicted on six counts of perjury arising from statements he made under oath during testimony in a prior trial.Appellant asks that we follow early decisions of courts in Georgia and Maine holding that when one takes an oath as a witness, violation of that oath can give rise to only one perjury even though the defendant may be guilty of several different falsehoods during the testimony.Black v. State, 13 Ga.App. 541, 79 S.E. 173(1913);Clackum v. State, 55 Ga.App. 44, 189 S.E. 397(1936);State v. Shannon, 136 Me. 127, 3 A.2d 899(1939).

The Arizona perjury statute, A.R.S. § 13--561, makes the gravamen of the offense the making of a false 'material statement under oath. . . .'The offense is not merely the violation of the oath.Our statute is the model act on perjury § 1, 9B Uniform Laws Annotated(1966), which is patterned after the federal statute, 18 U.S.C. § 1621.The leading federal case discussing the very question raised by appellant here is Seymour v. United States, 77 F.2d 577(8th Cir.1935), which squarely held that 'the commission of perjury as to one matter does not absolve the witness or afford him immunity as to all other matters covered by his testimony at the same hearing.'See alsoUnited States v. Tyrone, 451 F.2d 16(9th Cir.1971), cert. denied, 405 U.S. 1075, 92 S.Ct. 1494, 31 L.Ed.2d 808.

Although the 'one oath, one perjury' theory has never expressly been confronted in Arizona, our courts have upheld multiple counts of perjury stemming from a single oath.SeeState v. Cousins, 4 Ariz.App. 318, 420 P.2d 185(1966);State v. Nobel, 2 Ariz.App. 532, 410 P.2d 489(1966).Accordingly, we reject appellant's contention that the violation of an oath by separate and distinct material false statements can give rise to only one charge of perjury.The State recognizes, however, that in order to give rise to multiple counts of perjury, there must in fact be 'distinct, separate, and material offenses.'United States v. Cason, 39 F.Supp. 731(D.La.1941).See alsoMasinia v. United States, 296 F.2d 871(8th Cir.1961).The state acknowledges that the offense of perjury cannot be compounded by the repetition of the same question.

We then must determine whether the six counts of perjury in this case were in fact based upon separate and distinct statements.We find that four of the counts, Counts Three through Six, do constitute statements in response to four separate and distinct questions.Count Three was a denial of knowledge concerning a money belt.Appellant protests that the denial was ambiguous, but in full context, we find no ambiguity.²Court Four was a denial of having been given a description of the residence.Count Five related to a denial of any discussion about the residence, and Count Six was a denial of a phone call to anyone admitting participation in the robbery and possession of certain photos taken from the house.

However, Counts One and Two are not so distinguishable.The question in each is virtually the same, I.e., whether the appellant was one of the robbers.The answer to each, although in slightly different form was a denial.³In Masinia, supra, the court considered it improper to charge two counts of perjury based on two denials that the defendant had been in the robbed jewelry store.We conclude that Counts One and Two in this case are similarly duplicitous.Therefore, the conviction and sentence under one of these counts must be vacated.

SPEEDY TRIAL

Appellant was brought to trial 185 days after his initial appearance.Rule 8.2,Arizona Rules of Criminal Procedure, requires that a defendant who is not in custody must be tried within 120 days from the date of initial appearance or 90 days from the date of arraignment, whichever is the lesser.Appellant had been ordered released from custody on this charge, although he remained imprisoned on a prior conviction.The 120-day period from the date of the first appearance applies.

In computing the time limitations, certain periods are permitted to be excluded under the provisions of Rule 8.4.The question here then becomes whether, taking into account time limitation periods properly excludable, the defendant was tried within the 120-day limitation.

There were numerous continuances in the case, and some, including one to accommodate the vacation schedules of certain court personnel who were to appear as witnesses, are highly questionable as excluded periods.However, our review shows that at least 75 days of delay were properly excludable; the defendant was, therefore, tried within the 120-day period, and his right to speedy trial under this rule and the Constitution were not violated.

The excludable time is summarized as follows:

(a) Nineteen days, from April 17 through May 6, 1975, representing a continuance of the preliminary hearing in order to permit a defense special action to remove the county attorney's office from the case because of an alleged conflict arising out of the prior robbery conviction.While it is not clear from this record whether the appellant participated in the special action itself, or whether it was prosecuted solely by a co-defendant, it is clear that the appellant did join in the motion before the trial court to remove the county attorney, and he also participated in the trial court hearing intended as a record for the special action.Appellant did not object to the continuance.We believe that this delay is one 'occasioned by or on behalf of the defendant' so as to come within the provisions of Rule 8.4(a).SeeState ex rel. Berger v. Superior Court, 111 Ariz. 335, 529 P.2d 686(1974), holding the time attributable to defendant's request for a change of judge excludable.

(b) A delay of three days, from July 22 to July 25, 1975 occasioned by the absence of both defendant and his counsel at the time set for trial.The trial court found extraordinary circumstances to be present within the meaning of Rule 8.5,Arizona Rule of Criminal Procedure, and appellant does not specifically challenge the exclusion of this period.

(c) A delay of 25 days, from August 14 to September 8, 1975 on defense counsel's motion for a continuance because of a conflicting trial.Appellant correctly points out that the court did not make an express finding of extraordinary circumstances, but we believe that the delay was one occasioned by or on behalf of the defendant so as to be excludable within the provisions of Rule 8.4(a), particularly since counsel informed the judge that the requested continuance would not violate any rule.SeeState v. Armenta, 25 Ariz.App. 62, 540 P.2d 1281(1975).

Appellant contends that this continuance was granted over the appellant's own wishes, and also faults defense counsel for failing diligently to pursue withdrawal from the case because of conflict.Although the record reflects that at an earlier time, the defendant had voiced a desire to go to trial promptly when a different continuance was under consideration, the record here does not reflect the appellant's wishes differed from that of his counsel at the time this continuance was granted.Moreover, we cannot fault defense counsel's pursuit of the conflict problem, for a motion to withdraw had previously been made and denied, and the motion shortly thereafter was renewed and granted by a different trial judge.

(d) Continuances totaling 28 days granted by the presiding judge upon express...