State v. Lee

• Decision Date: 06 December 1976
• Docket Number: No. 3094,3094
• Citation: 114 Ariz. 101,559 P.2d 657
• Parties: STATE of Arizona, Appellee, v. Charles LEE, Jr., Appellant.
• Court: Arizona Supreme Court

Page 657

559 P.2d 657

114 Ariz. 101

STATE of Arizona, Appellee, v. Charles LEE, Jr., Appellant.

No. 3094.

Supreme Court of Arizona, In Banc.

Dec. 6, 1976.

Bruce E. Babbitt, Atty. Gen. by William J. Schafer III and Stanley L. Patchell, Asst. Attys. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender by Rudy J. Gerber, Deputy Public Defender, Phoenix, for appellant.

HOLOHAN, Justice.

The appellant, Charles Lee, Jr., was charged with the crime of first-degree murder for the shooting of George Naum Bendo. At approximately 1:15 a.m., on May 17, 1974, the appellant attempted to rob a gas station on the east side of Phoenix. Armed with a pistol, he approached the station on foot and waited until the station's lone customer had pulled away from the pumps before confronting the attendant. The latter, a sixty-five-year-old man, attempted to grapple with the appellant, but the ensuing struggle was terminated when the appellant shot his victim in the back. The appellant and a companion were apprehended a few minutes later. The victim died within the hour.

Appellant's first trial terminated in a hung jury, but a second jury trial resulted in a finding of guilty as charged. At the separate sentencing hearing, conducted in accordance with A.R.S. § 13--454, the court found two of the aggravating circumstances enumerated in the statute to be present. No mitigating circumstances were found and appellant was sentenced to death.

This appeal raised four questions for our consideration:

A. whether there was an unconstitutional underrepresentation of blacks and other minorities on the jury B. whether the trial court erred by allowing testimony and arguments which infringed on appellant's Fifth Amendment rights,

C. whether the death penalty, per se, or Arizona's death penalty statute is unconstitutional, and

D. at the sentencing hearing, whether the trial court erred by considering evidence inadmissible under A.R.S. § 13--454.

A.

Appellant first claims that, as a result of the jury panel selection procedures of Maricopa County, blacks and other minorities were unconstitutionally underrepresented on the petit jury which convicted him. No objection to the jury's composition was made in the trial court below, and appellant first asserted the argument on this appeal. Appellants who fail to object in the trial court waive their rights to raise the objection on appeal. State v. Magallanes, 110 Ariz. 235, 517 P.2d 505 (1973).

The Fourteenth and Sixth Amendments to the United States Constitution forbid a state's deliberate and systematic exclusion of an identifiable and distinct group from the jury lists because an accused is entitled to a jury drawn from a fair and representative cross section of the community. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954). Appellant, however, has not alleged the existence of a systematic exclusion. Instead, he merely alleges instances in which blacks and other minorities were 'underrepresented' on jury panels. Mere observation that a particular group is underrepresented on a particular panel does not support a constitutional challenge. U.S. v. Grose, 525 F.2d 1115 (7th Cir. 1975), Cert. denied, 424 U.S. 973, 96 S.Ct. 1477, 47 L.Ed.2d 743 (1976). One is not entitled to a jury composed of the exact proportion of one's race which exists in the general population. The Constitution requires only that the jury be selected by a process which does not systematically exclude the members of one's race. State v. Watson, Ariz., 559 P.2d 121 (1976); State v. Taylor,109 Ariz. 267, 508 P.2d 731 (1973).

Jurors in Arizona are selected at random from voter registration lists pursuant to A.R.S. § 21--301(A). The use of voter registration lists as the sole source of the names of potential jurors is not constitutionally invalid, absent a showing of discrimination in the compiling of such voter registration lists. United States v. James, 453 F.2d 27 (9th Cir. 1971); United States v. Parker, 428 F.2d 488 (9th Cir. 1970), Cert. denied, 400 U.S. 910, 91 S.Ct. 155, 27 L.Ed.2d 150. Those who do not choose to register to vote cannot be considered a 'cognizable group.' Their nonregistration is a result of their own inaction; not a result of affirmative conduct by others to bar their registration. United States v. Freeman, 514 F.2d 171 (8th Cir. 1975); United States v. Lewis, 472 F.2d 252 (3rd Cir. 1973); Camp v. United States, 413 F.2d 419 (5th Cir. 1969), Cert. denied, 396 U.S. 968, 90 S.Ct. 451, 24 L.Ed.2d 434 (1969); Grimes v. United States, 391 F.2d 709 (5th Cir. 1968). We conclude that there was no denial of constitutional rights in the selection of the jury which tried appellant.

B.

Appellant's second ground on appeal is that the trial court admitted into evidence two statements which violated his Fifth Amendment rights. The first of the two statements was the testimony of a Phoenix police officer who said that appellant had 'refused to answer any more questions' during an interrogation. Appellant objected to this evidence and moved for a mistrial. The motion for mistrial was denied.

Appellant contends that the police officer's testimony directs attention to the accused's assertion of his Fifth Amendment right against self-incrimination which makes the testimony improper. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); State v. Shing, 109 Ariz. 361, 509 P.2d 698 (1973).

Appellant's silence was not offered as evidence against him. This becomes obvious when appellant's 'silence' is put into its proper context. After he was taken to the police station, appellant voluntarily talked with the police. He denied being in the area of the gas station during the night in question, but admitted being familiar with its location and having been there two days before. The testimony at issue was:

'Q. BY MR. SHAW: Officer, anything else said by the defendant Lee?

'A. He--His statements? When he asked him if he knew James Johnson, he said he did. We brought both Johnson and Lee together, and at that time he denied knowing Johnson, and he refused to answer any more questions. He said, 'I'll answer the rest of the questions--'

Appellant had been talking with the officer. When his accomplice was brought into the room, he refused to answer any more questions. The testifying officer simply explained what happened and related the course of the conversation until its termination. A similar situation was before the court in U.S. v. Haro-Portillo, 531 F.2d 962 (9th Cir. 1976), and that court stated:

'When the contraband was discovered appellant was arrested and informed of his rights both in English and in Spanish. Thereafter, Agent Hatch of the Drug Enforcement Administration had a conversation with appellant about the case. When questioned by the prosecuting attorney about this conversation, the agent came to a point at which he said the appellant would not answer further questions; the defense then moved for a mistrial which was denied. We think this was properly so. Appellant's reliance upon Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) is not persuasive. There the comment was upon the defendant's failure to testify which comment was held to violate the defendant's Fifth Amendment rights. Here the appellant voluntarily talked to the agent for a time after which he refused to answer any more questions. The agent simply explained what happened and related the conversation until it was terminated. No violation of appellant's rights occurred in this testimony and the denial of the motion for a mistrial was correct.' U.S. v. Haro-Portillo, 531 F.2d at 963.

The denial of the motion for a mistrial in this case was correct.

Appellant alleges his Fifth Amendment rights were violated a second time during the prosecutor's argument to the jury.

'One other thing that I should point out along that line. The only evidence that has been presented to you is the evidence that has been presented by the state. Has there been evidence presented by the defendant? Anything about fingerprints? About Mr. Garcia being wrong? Has there been any evidence presented by ballistics? Mr. Haag when he testified? Has there been any evidence at all presented by Mr. Haag that was wrong? The only evidence presented on the fingerprints are insinuations, conjecture, again holding a red herring here to try to distract your attention from the evidence that is before you.' (Emphasis added.)

The prosecutor may not comment on the failure of the defendant to testify. State v. Rhodes, 110 Ariz. 237, 517 P.2d 507 (1973); Griffin v. California, supra.

In State v. Acosta, 101 Ariz. 127, 416 P.2d 560 (1966) this court adopted the following test to resolve the issue of which comments by the prosecution are objectionable:

"* * * It is only objectionable to comment on the failure of defendant personally to testify; a comment that certain facts brought out by the prosecution are uncontradicted is not objectionable. The true test is, was the reference calculated or intended to direct the attention of the jury to the defendant's neglect to avail himself of his right? * * *" 101 Ariz. at 129, 416 P.2d at 562, Quoting 1 Underhill, Criminal Evidence 323 (5th ed. 1956)

Although the quoted statement referred directly to the defendant, we are satisfied that it was made within permissible bounds. Because it focused on the state of evidence before the jury it was not an improper reference to appellant's failure to testify. Similar comments by the prosecutor have been held proper. State v. Adair, 106 Ariz. 58, 470 P.2d 671 (1970); State v. Pierson, 102 Ariz. 90, 425 P.2d 115 (1967).

C.

In his third claim, appellant challenges the constitutionality of the death penalty and Arizona's death penalty statute, A.R.S. § 13--454. The federal Supreme Court has declared that the imposition of the death penalty for the crime of...