State v. LeMaster
| Decision Date | 12 April 1983 |
| Docket Number | No. 1,CA-CR,1 |
| Parties | STATE of Arizona, Appellee, v. Roland Dale LeMASTER, Appellant. 5881. |
| Court | Arizona Court of Appeals |
Following a trial by jury, appellant was found guilty of two counts of aggravated assault while armed with a dangerous instrument and one count of theft with a prior conviction. The trial court sentenced appellant to serve concurrent aggravated terms of 15 years each for the assault convictions, and 8 years for the theft conviction. Appellant timely filed a notice of appeal raising the following issues for our consideration:
(1) whether the trial court's refusal to grant appellant's motion for a continuance and ordering the trial to proceed in appellant's absence constituted error;
(2) whether the trial court erred by instructing the jury that the individual jurors would be allowed to ask questions of each witness;
(3) whether the trial court erred by refusing to grant appellant's motion for a judgment of acquittal pursuant to Rule 20, Rules of Criminal Procedure, 17 A.R.S., on a charge of kidnapping with intent to inflict sexual assault;
(4) whether the trial court abused its discretion by finding certain aggravating factors to be true and in using them to aggravate appellant's sentence pursuant to A.R.S. § 13-702;
(5) whether the trial court erred in admitting certain documentary evidence to establish the allegation of a prior conviction; and
(6) whether the trial court erred by finding that appellant's prior conviction in Oklahoma was the equivalent of a felony in Arizona.
The evidence introduced at trial revealed that the two female victims, who were from New Zealand, were traveling through this country. They met appellant in a cafe in Gallup, New Mexico, when appellant introduced himself to them and offered them a ride to Flagstaff, Arizona. The incidents which led to the filing of the charges against appellant occurred in Flagstaff. Appellant took the victims to an isolated area and at knifepoint demanded that they remove their clothes and perform cunnilingus upon each other. After partially undressing, the victims were able to escape. Appellant fled in his vehicle, taking all of the victims' personal belongings, including an expensive camera. He was subsequently apprehended on that same day and most of the victims' property was recovered.
Based on these incidents, appellant was charged with two counts of aggravated assault while armed with a dangerous instrument, one count of kidnapping with intent to inflict a sexual assault, and one count of theft. The state also filed an allegation of a prior conviction. When appellant failed to appear at trial, defense counsel requested a continuance on the grounds that appellant had indicated that he wanted to be present at trial and that defense counsel had not been able to prepare for trial because of appellant's absence. The trial court denied the motion for continuance and proceeded to trial.
The jury found appellant guilty of both counts of aggravated assault, a dangerous nature felony, and theft of property valued between $100 and $1,000. Appellant was found not guilty of kidnapping with intent to inflict a sexual offense. Following trial on the allegation of the prior conviction, the jury found the allegation to be true. Additional procedural and factual detail will be set forth in our discussion of the issues raised by appellant in this appeal.
Appellant urges that he was denied his right to be present at trial, to cross-examine the witnesses against him, and to present evidence in his own behalf by the trial court's denial of his motion to continue the proceedings. 1 He urges that the trial court abused its discretion by inferring pursuant to Rule 9.1, Rules of Criminal Procedure, 17 A.R.S., that his absence from trial was voluntary.
In denying the motion for continuance, the trial court noted that when appellant was released on his own recognizance he was advised of the terms and conditions of release and informed that he would be tried in absentia if he were not present for trial. The record also reveals that appellant's counsel advised him of the trial date. We find that the trial court did not err in inferring pursuant to Rule 9.1 that appellant's absence was voluntary. See State v. Tacon, 107 Ariz. 353, 488 P.2d 973 (1971), cert. dismissed, 410 U.S. 351, 93 S.Ct. 998 35 L.Ed.2d 346 (1973); State v. Pena, 25 Ariz.App. 80, 541 P.2d 406 (1975). Since it is clear that appellant had not informed his attorney of his whereabouts, and his attorney had no reason to believe that appellant would appear for a later trial, there was no abuse of discretion by the trial court in denying appellant's motion for continuance.
Before the presentation of any evidence, the trial judge instructed the jury as follows:
The trial proceeded in accordance with this preliminary instruction, and a recess was taken after the completion of counsel's examination of each witness. The jurors submitted questions to the court for all witnesses except three. The court determined the acceptability of each question after discussion with counsel in chambers, and those questions found acceptable were directed to the witness by the court.
On appeal, appellant does not claim that any specific question resulted in prejudice to him, but rather contends that the entire procedure was improper and constituted reversible error. He urges that by instructing and inviting the jurors to ask questions, the court interjected the jury into the adversary system and jeopardized its position as a fair and impartial arbiter of evidence brought before it by the appropriate officers of the court. Appellant further urges that the provisions of Rule 614(b), Rules of Evidence, 17A A.R.S., expressly authorizing the interrogation of witnesses by the trial judge, implicitly negate the trial judge's authority to elicit questions from the jurors. He argues that a juror allowed to be an interrogator "will develop a line [of] questioning which predisposes that juror towards a particular finding of guilt or innocence and once committed to that role as an 'advocate' could well find it impossible to retreat once again to the position of a neutral arbiter."
Neither appellant nor the state cites authority addressing the issue of the propriety of jurors asking questions during the course of trial. However, we note that this court addressed the issue in State v. Taylor, 25 Ariz.App. 497, 544 P.2d 714 (1976). In that case, the trial court preliminarily instructed the jury to refrain from asking questions of the witnesses. On appeal, the defendant argued that the instruction in effect denied him his constitutional right to a trial by a fair and impartial jury as provided by Arizona Constitution, art. 2, § 24. This court cited the general rule that the questioning of witnesses by jurors is left to the discretion of the trial court and appellate courts will not reverse unless there is a clear abuse of that discretion. We pointed out, however, the inherent dangers of allowing unrestrained questioning of witnesses by jurors, including disruption of trial, mistrials and reversals on appeal as a result of prejudicial questions. On the other hand, we noted that a well-informed juror serves the cause of justice. We concluded that the trial court should control direct questions to the witnesses by the jury but that jurors should be given the opportunity to raise questions or problems they may have to the court. We recommended that the court instruct the jurors that if they had questions or matters they wanted brought to the court's attention they should advise the bailiff or the judge. The trial court, on receipt of such a question should notify counsel and discuss the question outside the presence of the jury to determine the proper method for dealing with specific questions or problems raised by the juror.
Although the propriety of allowing juror questioning of witnesses has been addressed in many jurisdictions, 2 we have not found any cases in which the trial court so affirmatively elicited juror participation to the...
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