State v. Lockett
| Decision Date | 08 December 1971 |
| Docket Number | No. 2233,2233 |
| Citation | 491 P.2d 452,107 Ariz. 598 |
| Parties | STATE of Arizona, Appellee, v. Willie T. LOCKETT, Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen., Phoenix, by Jerry C. Schmidt, Asst. Atty. Gen., Tucson, and Paul Prato, Asst. Atty. Gen., Phoenix, for appellee. Howard A. Kashman, Pima County Public Defender, by Gilbert Veliz, Jr., and Eleanor Schorr, Deputy Public Defenders, Tucson, for appellant.
The defendant, Willie T. Lockett, was convicted of the crime of armed robbery and sentenced to a term of seven to nine years. Having reviewed the issues raised by the defendant, we find them without merit and affirm the conviction.
On the night of October 22, 1969, a Seven-Eleven store in Tucson was robbed by a man subsequently identified as the defendant. The identification was made by two employees of the store and a young woman who was one of three women who saw the robber in the store a short time before the robbery occurred. In addition, there was finger-print evidence linking defendant with the offense.
Defendant's first contention is that the trial court abused its discretion by denying his motion for a continuance made on the day of the trial. Defendant had originally moved for a continuance a week before the scheduled trial date on the grounds that although diligent effort had been expended, he had been unable to obtain the addresses of two important witnesses. These witnesses were two of the women mentioned above. The State's opposition to this motion included an affirmative declaration that both witnesses would be at the trial. The trial court denied defendant's motion.
After learning on the night before the trial that the State was only going to be able to produce one of the witnesses, the defense renewed its motion for a continuance on the day of the trial, citing the failure of the State to produce both witnesses. The defense stated that while the defendant would prove he did not have 'processed' hair on the day of the robbery, the absent witness would testify that the person who robbed the store did have 'processed' hair. There would be further testimony that 'processed' hair cannot be altered until after the passage of time. The court again denied the motion.
The question of granting a continuance is largely within the discretion of the trial court, and this court will not reverse on this ground unless it is clearly shown that there is an abuse of discretion. State v. Reyes, 99 Ariz. 257, 408 P.2d 400 (1965). Although the State had attempted to produce the witness and failed, defendant made no showing that the witness would be available to testify at a later date. See State v. Maxwell, 103 Ariz. 478, 445 P.2d 837 (1968). The transcript of record indicates that although arrangements were made by the State to secure the presence of the out-of-state witness, she turned up AWOL from the Job Corps Training Center. The defendant does not contend that there was bad faith on the part of the State nor that the State was not diligent in attempting to secure the presence of the witness. The defense motion for continuance was oral and came at a stage when the voir dire of the jury panel had been completed. The court, after a hearing outside the presence of the jury, elected to deny the motion for continuance. We find no abuse of discretion here.
Defendant contends that he did not make a knowledgeable and informed waiver of his right to a trial by a full slate of twelve jurors. During the course of the trial, one of the original twelve jurors became ill and was unable to sit on the case. This was on a Friday. The juror indicated to the court that he would be able to return Monday to continue the trial.
When asked if he would stipulate to a trial by eleven jurors, defense counsel stated he would have to discuss the matter with the defendant. The defendant told his attorney that he, in fact, agreed to proceed with eleven jurors.
The court, wanting to be certain that the defendant personally assented to this action, asked the defendant in open court if he agreed to this. The court stated that the matter could be continued until Monday if the defendant did not agree. The defendant responded that he did agree. Defense counsel stated at that time that the defendant's decision was based on the fact that one of the witnesses for the defense, who had come in from California for the trial, would not be able to be present on Monday. The court indicated that the witnesses in this trial could be made to remain in Tucson over the week end.
The basis for the defendant's argument that his waiver was not knowledgeable and informed is Rule 266, Rules of Criminal Procedure, 17 A.R.S. This rule states that if the juror becomes ill so that he is unable to perform his duty,
'. . . a new juror may be sworn and the trial commenced anew or the jury may be discharged and a new jury drawn and impaneled in the discretion of the court.'
It is the failure of the court to explain to the defendant the possible alternatives under Rule 266 which the defendant alleges to have constituted a situation wherein his waiver was unknowledgeable and...
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Haven v. Taylor
...to apply to Taylor, Haven failed to ask for such a jury instruction and has waived the argument on appeal. See State v. Lockett, 107 Ariz. 598, 600, 491 P.2d 452, 454 (1971) (noting that the failure to request an instruction "constitutes a waiver of any right to have [it] given"); see also ......
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State v. Thomas, 5170
...criminal proceeding a guilty verdict must be unanimous, which served to protect, not deny, the defendant's rights. See State v. Lockett, 107 Ariz. 598, 491 P.2d 452 (1971). The judge need not, by instruction, invite a "hung jury." We find no PAROLE TIME CREDIT At the sentencing hearing, the......
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State v. Conn
...agree whether the verdict is "guilty" or "not guilty." " Recommended Arizona Jury Instructions, Criminal Standard 10; State v. Lockett, 107 Ariz. 598, 491 P.2d 452 (1971). The third and last error claimed in the refusal of instructions concerns the appellant's requested instruction to the e......
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State v. Binford
...was a waiver, which would require knowledge on the part of appellant of the right intentionally relinquished, See State v. Lockett, 107 Ariz. 598, 491 P.2d 452 (1971), and we find none. The question which appellant asks us to determine is whether the language of the minute order alone effec......