State v. Marquez
| Decision Date | 11 September 1980 |
| Docket Number | No. 4968,4968 |
| Citation | 618 P.2d 592,127 Ariz. 98 |
| Parties | The STATE of Arizona, Appellee, v. Mario David MARQUEZ, Appellant. |
| Court | Arizona Supreme Court |
Robert K. Corbin, Atty. Gen. by William J. Schafer, III and Jessica L. Gifford, Asst. Attys. Gen., Phoenix, for appellee.
David F. Alexander, Mesa, for appellant.
On 2 August 1979, defendant Mario David Marquez was convicted of a violation of A.R.S. § 13-1206, Dangerous or Deadly Assault By a Prisoner. On 29 August 1979, he was sentenced, in accordance with the mandatory sentencing provision of A.R.S. § 13-1206, to life in prison. Marquez now appeals both conviction and sentence. We have jurisdiction under A.R.S. § 13-4031.
The defendant raises these issues in his appeal:
1. Did the indictment sufficiently advise the defendant of the charges against him?
2. Is A.R.S. § 13-1206 unconstitutional?
3. Was the defendant denied the effective assistance of counsel?
4. Did the trial court err in evidentiary rulings or abuse its discretion in denying the defendant's motion for new trial?
The following facts are necessary to a resolution of these issues. On 7 October 1978, the defendant and another convict by the name of Lozano attacked and seriously injured a fellow inmate at the state prison in Florence. According to the testimony of two prison guards, Marquez, Lozano, and their victim, Billy Plew, were in the prison mess hall with about seventy other inmates when the assault occurred. A guard noticed that Lozano, who was assigned to a job either in the kitchen area or in the serving line, was not doing this work. Instead, Lozano was near the open mess area in which the inmates were eating. Plew stood up with his tray and headed for the area designated for the return of used eating utensils. When Plew reached the table where Marquez sat, Marquez got up and began fighting with him. As he swung at Plew, Marquez held a clear plastic object in his fist. Plew held his stainless steel tray up as a shield. As Marquez accosted Plew, Lozano circled around behind the victim. While Plew defended himself from Marquez' frontal attack, Lozano stabbed Plew in the back with a 15 knife. After guards subdued the combatants, they found a bloodstained sharp plastic rod on the floor near the scene of the assault. Plew's wounds included a deep cut which pierced his left lung from the rear, a puncture wound on his left shoulder, and a puncture wound under his left eye. The prison doctor testified at trial that the punctures were made with a small round instrument like the piece of plastic found at the scene.
On 24 October 1978, Marquez and Lozano were indicted by a grand jury for assault with a deadly weapon, a knife, while in the custody of the Department of Corrections, in violation of A.R.S. § 13-1206. Attorney Joseph Howard was appointed to represent Marquez. At this time both the State and the defense were unaware that a guard had seen a transparent object in Marquez' hand and that a sharp piece of blood-stained plastic had been found near the location of the assault. The theory on which both sides initially prepared for trial featured Marquez as an accomplice who had decoyed Plew into a position where Lozano could stab him.
A week before the original trial date in March, both prosecution and defense learned of the existence of the small plastic weapon that seemed to correspond with the puncture wounds suffered by Plew. A few days later, Marquez' attorney learned, while interviewing one of the guards who observed the assault, that the guard's notes of his observations were more detailed than his official report on the incident. Upon defense complaint to the State, the prosecutor contacted prison officials. As a result, five reports which had been in the prison's records, but which had not previously been known to the State, were disclosed to both defense and prosecution. These reports made it clear that one guard had seen Marquez use a clear plastic weapon or "shank," during the assault. Thus, some four months prior to the beginning of jury trial in this case, the accomplice-decoy theory of guilt was supplemented by the theory that Marquez might also be found guilty as a principal, due to the evidence suggesting he had himself stabbed Plew with a plastic shank.
Prior to trial, co-defendant Lozano made a plea bargain with the State, based on his agreeing to disclose to corrections officials the whereabouts of weapons hidden in the prison. Prior to trial, the trial court held the first of three hearings on the defendant's motion for appointment of new counsel. The defendant claimed that Howard had not sufficiently informed him of the progress of his case, had not given him grand jury transcripts, had unduly delayed trial, had advised him to "cop out" and seek a plea bargain, and had failed properly to interview witnesses who would exculpate him. Howard had spent about one-hundred hours on the Marquez case. He detailed his efforts to interview witnesses and to keep the defendant informed; he noted that a grand jury transcript had been supplied to Marquez. The court found that Howard's failure to handle Marquez' case precisely as the defendant ordered was not grounds for new counsel and that Howard had dealt capably and properly with the matter. The motion was denied, but the court later granted the defendant a new lawyer, Robert Hughes, noting that this action was not based on a finding that Howard had been ineffective.
On 2 August 1979, Marquez went to trial and was found guilty. At sentencing, he claimed that his second lawyer had represented him inadequately because Hughes had failed to interview witnesses Marquez considered important. Hughes stated that the several witnesses he had interviewed proved useless because their stories were inconsistent, that he did not interview witnesses the defendant believed would impeach Lozano because Lozano was not slated to testify for the State, and that he had attempted to interview the victim, who refused to speak with him. The trial court sentenced Marquez to a life term, as required by A.R.S. § 13-1206, and agreed to permit attorney Hughes to withdraw and substitute counsel. This appeal, with a third lawyer representing Marquez, followed.
Defendant alleges on appeal that the indictment insufficiently apprised him of the charge against him. In support of this allegation, he reiterates a claim made below that the State shifted its theory of culpability from an accomplice-decoy theory to a theory that Marquez himself wounded Plew with the plastic shank. The indictment read as follows:
"On or about the 7th day of October, 1978, in the Main Yard Kitchen at the Arizona State Prison, Pinal County, Michael Eugene Logano (sic) and Mario David Marquez, while in custody of the Department of Corrections, assaulted William Allen Plew using a deadly weapon or instrument, to-wit: a knife, in violation of A.R.S. 13-1206 and 13-801."
The record shows that the State did not shift its theory of culpability. Rather, both State and defense widened their efforts in response to the additional facts which came to light during discovery. At trial there was evidence which could support both a finding of guilt as accomplice-decoy and a finding of guilt as principal. If either or both theories were accepted by the jury, the defendant would be found guilty of one count of A.R.S. § 13-1206, the crime charged in the indictment.
We have said that a charging document is
State v. Suarez, 106 Ariz. 62, 64, 470 P.2d 675, 677 (1970).
The indictment specifically apprised Marquez of the exact crime he was alleged, and eventually proved, to have committed. He had notice of the State's two theories of culpability. The fact that one of the theories was based on additional incriminating evidence discovered after an indictment was filed against him does not invalidate that indictment. Also Marquez' conviction on the charge of violating A.R.S. § 13-1206 would be a bar to further prosecution based upon the facts given in court. See State v. Carrico, 116 Ariz. 547, 570 P.2d 489 (1977); State v. Juarez, 111 Ariz. 119, 524 P.2d 155 (1974). We find no error.
The defendant makes several arguments in support of the proposition that A.R.S. § 13-1206, which proscribes dangerous or deadly assaults by prisoners, is unconstitutional. The challenged statute reads as follows:
Marquez alleges that the consecutive life sentence mandated by this statute is cruel and unusual punishment, violative of both the Eighth Amendment of the United States Constitution and Article 2, Section 15 of the Arizona Constitution. We have this day fully discussed and determined an identical claim in State v. Mulalley, 126 Ariz. ---, 618 P.2d 586.
Since the comparisons with foreign...
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