State v. Marquez

• Decision Date: 20 December 1976
• Docket Number: No. 3190,3190
• Citation: 113 Ariz. 540,558 P.2d 692
• Parties: STATE of Arizona, Appellee, v. Mario David MARQUEZ and Robert Cano Rascon, Appellants.
• Court: Arizona Supreme Court

Page 692

558 P.2d 692

113 Ariz. 540

STATE of Arizona, Appellee, v. Mario David MARQUEZ and Robert Cano Rascon, Appellants.

No. 3190.

Supreme Court of Arizona, In Banc.

Dec. 20, 1976.

Rehearing Denied Jan. 18, 1977.

Bruce E. Babbitt, Atty. Gen., by William J. Schafer III, Chief Counsel, Frank T. Galati, Thomas G. Bakker, Asst. Attys. Gen., Phoenix, for appellee.

Patrick E. Eldridge, Phoenix, for appellant Marquez.

George M. Sterling, Jr., Phoenix, for appellant Rascon.

STRUCKMEYER, Vice Chief Justice.

This is a consolidated appeal from convictions for armed robbery. Judgments affirmed.

On June 14, 1974, Julio Leon was assaulted and robbed by three men in an incident lasting over an hour. Appellants Marquez and Rascon were apprehended and identified as the perpetrators. The first question is whether the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution was violated by the retrial of appellants after their original consolidated trial ended in a mistrial granted at their request.

Appellants' first trial began on March 5, 1975. After the jury was impaneled and witnesses sworn, they moved for a mistrial due to a conversation held between the prosecuting attorney and the sentencing judge for the third perpetrator, Lorenzo Martinez. The gist of what transpired is that the prosecuting attorney went into the sentencing judge's chambers on the morning of March 6, 1975 in order to see the pre-sentence report on Martinez. The judge's staff, however, would not disclose the report unless the judge consented, so the assistant prosecuting attorney then spoke with the judge. In answer to the prosecuting attorney's statement that Martinez would take the entire blame for the assault, the judge said, in effect, that if someone took the blame for a crime committed by three people, then that person would get three times the punishment. The prosecuting attorney informed the trial court of this meeting, being of the view that the public defender should advise Martinez of the possible consequence of his testifying for appellants. Defense counsel then moved for a mistrial on the grounds of the possible coercion of a prospective witness. A mistrial was granted.

At the second trial, appellants moved to dismiss the complaint on the grounds that jeopardy had attached in the first trial and a retrial would violate the Double Jeopardy Clause of the United States Constitution. The motion was denied, and the subsequent trial resulted in a conviction from which appellants appeal.

The Double Jeopardy Clause of defendant against 'multiple punishments or defendant against 'munitiple punishments or repeated prosecutions for the same offense.' United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267, 273 (1976), and cases cited. A mistrial negates the defendant's "valued right to have his trial completed by a particular tribunal'.' Id. 424 U.S. at 606, 96 S.Ct. at 1079, 47 L.Ed.2d at 273.

A distinction has arisen regarding the applicability of the Double Jeopardy Clause in circumstances where the trial court declares a mistrial Sua sponte, as opposed to a mistrial declared at the instance of a defendant or with his consent. In the former, since United States v. Perez (9 Wheat), 22 U.S. 579, 6 L.Ed. 165 (1824), it has been held that whether the Double Jeopardy Clause permits a new trial after a mistrial without a defendant requesting or consenting to it depends on whether there is a manifest necessity for the mistrial or whether the ends of public justice would otherwise be defeated. In contrast, a motion for mistrial made by a defendant ordinarily will remove any bar to reprosecution, except in circumstances 'attributable to prosecutorial or judicial overreaching.' United States v. Dinitz, supra; United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543, 556 (1971) (plurality opinion.) ¹ See State v. Dowthard, 92 Ariz. 44, 46, 373 P.2d 357, 358 (1962).

The Supreme Court recognized in Jorn that a defendant, even in the face of prejudicial judicial or prosecutorial error, may wish to continue the trial. 400 U.S. at 484, 91 S.Ct. at 557, 27 L.Ed.2d at 556. However, in Dinitz the Court said:

'But it is evidence that when judicial or prosecutorial error seriously prejudices a defendant, he may have little interest in completing the trial and obtaining a verdict from the first jury. The defendant may reasonably conclude that a continuation of the tainted proceeding would result in a conviction followed by a lengthy appeal and, if a reversal is secured, by a second prosecution. In such circumstances, a defendant's mistrial request has objectives not unlike the interests served by the Double Jeopardy Clause--the avoidance of the anxiety, expense, and delay occasioned by multiple prosecutions.' 424 U.S. at 608, 96 S.Ct. at 1080, 47 L.Ed.2d at 274.

The Double Jeopardy Clause therefore offers a defendant protection 'against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions.' United States v. Dinitz, supra, 424 U.S. at 611, 96 S.Ct. at 1081, 47 L.Ed.2d at 276.

Arizona case law is to the same effect as the federal cases in holding that intentional judicial or prosecutorial overreaching designed to cause a mistrial will result in a bar to any further prosecution. State v. Wright, 112 Ariz. 446, 449--450, 543 P.2d 434, 437--438 (1975); City of Tucson v. Valencia, 21 Ariz.App. 148, 150--152, 517 P.2d 106, 108 (1973). See also, State v. Ballinger, 19 Ariz.App. 32, 36--37, 504 P.2d 955, 959 (1973).

Appellants argue that the federal cases 'clearly hold that the prosecutorial error need not be improper or even unexcusably negligent to bar retrial.' We find no merit in this contention. All of the cases cited by appellants as authority for the foregoing statement involved situations where a mistrial was declared over a defendant's objection or without his consent. Therefore, these cases deal with the 'manifest necessity' test of Perez, supra. In the instant case, a mistrial was declared on defendant's own motion, made necessary by the prosecutor's discussion with the judge who was about to sentence a defense witness for involvement in the same crime for which appellants were on trial. When the prosecution provokes a defendant into moving for a mistrial, the test to apply in determining whether to hold that double jeopardy bars a reprosecution is one of judicial or prosecutorial overreaching Intentionally calculated to force a mistrial. United States v. Dinitz, supra; State v. Wright, supra, 112 Ariz., at 449--450, 543 P.2d at 438; City of Tucson, supra, 21 Ariz.App. at 152, 517 P.2d at 109.

The actions of the prosecuting attorney do not warrant application of this rule to the case here. Neither the actions of the prosecutor nor the sentencing judge rise to the level of 'intentional and deliberate prosecutorial misconduct designed to avoid an acquittal.' City of Tucson v. Valencia, supra, at 151, 517 P.2d at 109. This type of conduct does not call for a bar to further prosecution. To hold that simple judicial or prosecutorial error is sufficient for barring retrial after the defendant, himself, has requested and been granted a mistrial, would undermine the public's interest in prosecuting and punishing the guilty. See Muller v. State, 478 P.2d 822, 827 (Alas.1971).

Appellants next attack the in-court identification, asserting that it was tainted by an unduly suggestive pre-trial confrontation at the preliminary hearing and also by the appellants' names being told to the victim prior to the first identification. Error is asserted in the trial court's determination reached after a hearing held pursuant to State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969), that even though the circumstances of the pre-trial identification may have been unduly suggestive, the in-court identification was not tainted by the prior identification. We do not agree.

If the record shows that a pre-trial identification was unduly suggestive, then the in-court identification must be shown to have had an independent source other than the improper pre-trial identification. State v. Lang, 107 Ariz. 400, 489 P.2d 37 (1971); State v.Dessureault, supra. Although subsequent confrontations with a person reinforces a witness' original identification, it does not necessarily follow that the subsequent in-court identification is automatically tainted. State v. Dessureault, supra, 104 Ariz. at 384, 453 P.2d 951.

In the instant case, the victim was assaulted for a period of time extending over an hour. He testified that throughout this time, under well-lighted conditions, he had a good look at the three men. He unequivocally identified appellants as two of those men and his in-court identification was based on this incident:

'Q. What was the next thing that you remember happened?

A. * * * I was still trying to place the faces. So, I didn't even talk, or nothing, just kept an eye on what was going on.

Q. Excuse me, Mr. Leon, did you say 'place the faces?' 'I was still trying to place the faces'?

A. I was trying to keep,...