State v. Miguel
| Decision Date | 08 May 1980 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 125 Ariz. 538,611 P.2d 125 |
| Parties | STATE of Arizona, Appellee, v. Darrell MIGUEL, Appellant. 4332. |
| Court | Arizona Court of Appeals |
In March, 1979, the Yuma County Grand Jury returned a six-count indictment against appellant, Darrell Miguel, and three others. The charges against Miguel were: Count I, robbery of Gustavo Freeman while armed with a deadly weapon, to wit: a gun and a knife, a class 2 felony, in violation of A.R.S. §§ 13-1901, 13-1902, 13-1904, 13-604, 13-701, 13-801; * Count II, robbery of Michael McKinnon while armed with a deadly weapon, to wit: a gun and a knife, a class 2 felony, in violation of A.R.S. §§ 13-1901, 13-1902, 13-1904, 13-604, 13-701, 13-801; Count III, burglary of the residence of Gustavo Freeman while armed with a deadly weapon, a class 2 felony, in violation of A.R.S. §§ 13-1501, 13-1508, 13-701, 13-801; and Count IV, aggravated assault upon Joseph Demoura with a deadly weapon, to wit: a gun, a class 3 felony, in violation of A.R.S. §§ 13-1203, 13-1204(A)(2), 13-604, 13-701, 13-801. Miguel pled not guilty but was convicted by a jury on all counts. Following a presentence hearing and entry of judgment of guilt, appellant was sentenced to concurrent terms of seven years' imprisonment on each of the four counts. We have jurisdiction of his appeal from the judgments of conviction and the sentences. A.R.S. §§ 13-4031, 13-4033.
The facts are restated briefly in a light most favorable to sustaining the convictions. State v. Acree, 121 Ariz. 94, 588 P.2d 836 (1978). On the night of March 20, 1979, appellant, Miguel, wearing sunglasses and armed with a small caliber pistol, and Glen Baxter, wearing a gas mask and armed with a hunting knife, entered the trailer home of Gustavo Freeman and Joseph Demoura in Yuma. Present in the trailer were Demoura, Freeman, and Michael McKinnon. Freeman was intoxicated and was asleep on the couch. Appellant and Baxter announced their intention of robbing the persons present in the trailer. While appellant kept his pistol trained on McKinnon and Demoura, Baxter held the knife to the throat of McKinnon, cutting him slightly, and took approximately $4.00 in cash from McKinnon. Baxter then went to the sleeping Freeman and began shoving and pushing him around. Freeman did not fully waken, and Baxter took Freeman's wallet from his pocket. Baxter removed approximately $432.00 in cash from the wallet. Despite the actions of Baxter, Freeman was not fully awake until the two robbers had left the trailer.
Prior to the trial, counsel for appellant requested the court to impanel a jury of twelve on the basis that Miguel's total potential sentences exceeded thirty years and he was thus entitled to a jury of twelve by law. The state joined in his request, but the trial court denied the motion stating that an eight member jury was sufficient because no potential sentence on any one count exceeded thirty years. Appellant renews this point on appeal. We agree with appellant's position and reverse the conviction on all counts.
The Arizona Constitution, article 2, section 23, provides:
The right of trial by jury shall remain inviolate. Juries in criminal cases in which a sentence of death or imprisonment for thirty years or more is authorized by law shall consist of twelve persons. In all criminal cases the unanimous consent of the jurors shall be necessary to render a verdict. In all other cases, the number of jurors, not less than six, and the number required to render a verdict, shall be specified by law.
Additionally, A.R.S. § 21-102(A) requires:
A jury for trial of a criminal case in which a sentence of death or imprisonment for thirty years or more is authorized by law shall consist of twelve persons, and the concurrence of all shall be necessary to render a verdict.
In the instant case, the maximum possible sentence for Counts I and II, robbery while armed with a deadly weapon, was 21 years' imprisonment on each count. A.R.S. §§ 13-1904, 13-701(B), 13-702, 13-604(G). The maximum possible sentence for Count III, burglary while armed with a deadly weapon, was 21 years. A.R.S. §§ 13-1508(B), 13-701(B), 13-702, 13-604(G). The maximum possible sentence for Count IV, aggravated assault with a deadly weapon, was 15 years' imprisonment. A.R.S. §§ 13-1204(B), 13-701(B), 13-702, 13-604(G). While each of the counts involved did not individually present a maximum potential sentence greater than 30 years, the total possible sentence in this "case," if the sentences were made to run consecutively, was 78 years. A recent supreme court case holds that the term "case" denotes the aggregation of counts or charges within the whole indictment or information. State v. Buffum, 125 Ariz. 488, 610 P.2d 1049 (1980). See also State v. Cook, 122 Ariz. 539, 596 P.2d 374 (1979). There is dicta to the same effect in State v. Parker, 22 Ariz.App. 111, 115, 524 P.2d 506, 510 (1974), and State v. Madison, 114 Ariz. 221, 224, 560 P.2d 405 408 (1977). Under these circumstances, our relevant constitutional and statutory provisions mandate that appellant be granted a twelve member jury.
If as a result of the new trial appellant is convicted of the charges, the sentences imposed must comply with the requirements set forth by the United States Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). See rule 26.14, Arizona Rules of Criminal Procedure. Notwithstanding the fact that the trial court may determine not to impose sentences which in the aggregate would not exceed thirty years or more, we hold that art. 2, § 23 of the Arizona Constitution applies if the total statutorily authorized sentences are thirty years or more.
While this case must be reversed for failure to impanel a twelve member jury, we address ourselves to appellant's second issue because of the probability of reoccurrence upon retrial. Appellant contends, as to Count I only, that the evidence was insufficient to convict because, as a matter of law, there can be no taking of property against the will of a voluntarily unconscious victim, and there can be no force or threat of force against such a victim.
A.R.S. § 13-1902(A) defines robbery as follows:
A person commits robbery if in the course of taking any property of another from his person or immediate presence and against his will, such person threatens or uses force against any person with intent either to coerce surrender of property or to prevent resistance to such person taking or retaining property.
Initially, we agree with appellant's assertion that the force used to merely remove the property from a victim is not the same force required by statute to support a robbery charge. Ramirez v. Territory, 9 Ariz. 177, 80 P. 391 (1905); Lear v. State, 39 Ariz. 313, 6 P.2d 426 (1931). Thus, in the instant case, the mere removal of the wallet from the victim's pocket does not constitute the element of force or threat required to support a robbery conviction.
However, there was also evidence that upon removal of his wallet Freeman was thrown from the couch and was thrown down again when he tried to get up. The evidence also showed that both threats and force were used against the other victims, McKinnon and Demoura. A.R.S. § 13-1902(A) makes clear that the threats or force may be directed against "any person," not necessarily only against the person dispossessed of the property, if the threats or force are with the intent to coerce surrender of the property or to prevent resistance. As stated in ...
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