State v. Millanes

Decision Date31 March 1994
Docket NumberNo. 1,CA-CR,1
Citation885 P.2d 106,180 Ariz. 418
PartiesSTATE of Arizona, Appellee, v. Robert Jesse MILLANES, Appellant. 92-0949.
CourtArizona Court of Appeals

GRANT, Judge.

In this opinion we hold that a defendant does not waive a double jeopardy claim by merely failing to raise it in the trial court. We further hold that the trial court's action in submitting a charge to the jury after initially granting an acquittal on the basis of insufficient evidence violates the prohibition against double jeopardy. Therefore, we reverse the conviction on the charge that was the subject of the acquittal. The remaining convictions and sentences are affirmed.


Robert Jesse Millanes (defendant) was indicted on charges of third degree burglary, a class 4 felony; theft, a class 3 felony; and criminal damage, a class 6 felony. The state also alleged that defendant had two prior felony convictions.

The charges stem from a burglary at the Rio Vista Baptist Church in Phoenix. During the early morning hours of July 2, 1991, a live-in caretaker at the church awoke to find a door to the church offices open and a light on. He then saw a truck owned by the church being driven off the premises. The caretaker called the police and gave them a description of the truck. A short time later, the police located and stopped the truck. The driver was identified as defendant. When the police searched defendant they found a phone credit card belonging to the church in his pocket. A number of other items that appeared to belong to the church were also found in the back of the truck. An examination of the church offices found several doors kicked in and a hole punched in one of the walls.

The case was tried to a jury. At the close of the state's case, defendant moved for directed verdicts of acquittal on the theft and criminal damage counts on the grounds of insufficient evidence of the value of the stolen property. The court took the motions under advisement. At the close of all the evidence, the court granted a partial directed verdict on the criminal damage count, reducing it to a misdemeanor because of lack of proof on the amount of the damage. The court further granted an acquittal on the theft charge after striking the only testimony pertaining to the value of the stolen truck. The state twice sought to have the trial court reconsider the acquittal. On the state's second request, the court reversed the acquittal upon determining that Ariz.Rev.Stat. Ann. ("A.R.S.") section 13-1802(C) does not require proof of value for theft of a motor vehicle.

Defendant was convicted of all three charges submitted to the jury. The jury also found the allegation of the prior felony convictions to be true. Following a mitigation hearing, defendant was sentenced to concurrent presumptive prison terms of 10 years for the burglary and 3.75 years for the theft, together with four months in the county jail on the criminal damage conviction. Defendant filed a timely notice of appeal. The sole issue raised on appeal is whether defendant's conviction on the theft charge violated the prohibition against double jeopardy.


The prohibition against double jeopardy is found in the Fifth Amendment 1 to the United States Constitution and is applied to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The Arizona Constitution, Article II, Section 10 provides a similar right. The Double Jeopardy Clause provides three related protections:

It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.

North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989).

Defendant's argument on appeal is that once the trial court acquitted him on the theft charge, the Double Jeopardy Clause prohibited the state from making further attempts to convict him on that same charge. The state's response is twofold. First, the state claims that defendant waived the double jeopardy issue by failing to raise it in the trial court. Second, the state contends that there was no acquittal because the trial court never entered a final judgment of acquittal. Both of the state's arguments are without merit.


Defendant's counsel objected to the trial court's reversal of its ruling acquitting defendant on the theft charge, but not on double jeopardy grounds. The general rule is that failure to raise an issue in the trial court waives the right to raise it on appeal. State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991). An exception is recognized, however, for fundamental error. Id. Fundamental error is defined as error that goes to the foundation of the case or takes from a defendant a right essential to his defense, thereby depriving him of a fair trial. Id. at 155, 812 P.2d at 628. "It usually, if not always, involves the loss of federal constitutional rights." Id. (quoting State v. Smith, 114 Ariz. 415, 420, 561 P.2d 739, 744 (1977)).

No reference is made by either party to Quinton v. Superior Court, 168 Ariz. 545, 815 P.2d 914 (App.1991), cert. denied, 503 U.S. 920, 112 S.Ct. 1295, 117 L.Ed.2d 518 (1992). In Quinton, we held that waiver of the prohibition against double jeopardy must be express rather than implied. Id. at 549, 815 P.2d at 918. The basis for our holding was Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975).

In Menna, the United States Supreme Court held that a defendant does not waive a double jeopardy claim by entering into a plea agreement. 423 U.S. at 62-63, 96 S.Ct. at 242. The Court noted that while certain constitutional violations are waived by a plea agreement, a double jeopardy violation is quite different in nature from "those constitutional violations not inconsistent with the valid establishment of factual guilt." Id. at 62 n. 2, 96 S.Ct. at 242 n. 2. A double jeopardy claim asserts that "the State may not convict [a defendant] no matter how validly his factual guilt is established." Id.

The Supreme Court further noted in Menna that a double jeopardy claim may be waived under certain circumstances. Id. The waiver, however, must be knowing, intelligent, and voluntary. Quinton, 168 Ariz. at 549, 815 P.2d at 918; Launius v. United States, 575 F.2d 770, 772 (9th Cir.1978). No such waiver by defendant exists in the present case. The record indicates that defendant was not even present during the hearings in which the acquittal order and its reversal occurred. We agree with the New York Court of Appeals that "[s]ince the failure to raise a particular defense is a much more equivocal indication of intent than is a decision to plead guilty, it would appear to follow that the failure to timely raise a double jeopardy claim cannot serve as a waiver of that claim." People v. Michael, 48 N.Y.2d 1, 420 N.Y.S.2d 371, 372 n. 1, 394 N.E.2d 1134, 1135 n. 1 (1979).

We perceive no judicial or public policy reason for finding a waiver when a double jeopardy claim is raised for the first time on appeal. The rationale for the general rule of waiver due to the failure to raise an issue in the trial court derives from the fact that the remedy for most error is merely a new trial. In those cases the error simply taints the fact-finding process; it does not preclude an ultimate conviction. Therefore, requiring a defendant to make all arguments and raise all claims of error related to the fact-finding process in one proceeding at the risk of waiving them is appropriate. Such a requirement gives the trial court an opportunity to take remedial action with respect to any error raised. See State v. Deschamps, 105 Ariz. 530, 533, 468 P.2d 383, 386 (1970). Without this rule, a defendant would have an incentive to allow unobjected error in the proceedings in order to obtain a new trial in the event of a conviction.

A double jeopardy claim is inherently different than the usual claim of error in that double jeopardy is independent of the issue of guilt. The principal thrust of the Double Jeopardy Clause "is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial." Robinson v. Neil, 409 U.S. 505, 509, 93 S.Ct. 876, 878, 35 L.Ed.2d 29 (1973). When a defendant is successful in obtaining relief by asserting the prohibition against double jeopardy, no further proceedings are required on the issue of factual guilt. Further proceedings are exactly what is prohibited. Thus, the purpose for the general rule of waiver arising from the failure to raise the issue in the trial court has no application to a claim of double jeopardy.

The state cites State v. Morales, 90 Ariz. 11, 363 P.2d 606 (1961); State v. Adamson, 140 Ariz. 198, 680 P.2d 1259 (App.1984); and State v. Veres, 7 Ariz.App. 117, 436 P.2d 629 (1968), cert. denied, 393 U.S. 1014, 89 S.Ct. 613, 21 L.Ed.2d 559 (1969), to support a waiver claim. Both Morales and Veres were decided before Benton v. Maryland. Adamson, while more recent, cites Morales and State v. Owens, 127 Ariz. 252, 619 P.2d 761 (App.1980), without any in-depth constitutional analysis for its holding that double jeopardy must be raised in the trial court to avoid waiver. Owens held, with no constitutional analysis of any kind and citing only Morales, that a plea agreement waived all...

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