State v. Miranda

• Decision Date: 07 July 1966
• Docket Number: CA-CR,No. 2,2
• Citation: 416 P.2d 444,3 Ariz.App. 550
• Parties: The STATE of Arizona, Appellee, v. Ignacio MIRANDA, Appellant. * 60.
• Court: Arizona Court of Appeals

Page 444

416 P.2d 444

3 Ariz.App. 550

The STATE of Arizona, Appellee, v. Ignacio MIRANDA, Appellant. ^*

No. 2 CA-CR 60.

Court of Appeals of Arizona.

July 7, 1966.

Rehearing Denied Aug. 8, 1966.

Review Denied Sept. 27, 1966.

Robert W. Pickrell, former Atty. Gen., Darrell F. Smith, Atty. Gen., by Walter O. Holm, Asst. Atty. Gen., for appellee.

George W. Oglesby, Phoenix, for appellant.

MOLLOY, Judge.

This is an appeal from a conviction of three counts of manslaughter in the driving of a motor vehicle while in the commission of an unlawful act not amounting to a felony with gross negligence. The criminal charges were the result of a one-car accident occurring on December 2, 1962, in Santa Cruz County, in the early hours of the morning as a result of which three passengers in the motor vehicle were killed. Consecutive sentences of not less than one nor more than three years were imposed upon each count.

There were six occupants of the car in question. The car impacted head-on into a steel lamp post in the outskirts of the City of Nogales, Arizona, and was telescoped together by the crash. A surviving occupant estimated the speed of the car prior to the accident to be seventy-five miles per hour. A blood test indicated that the defendant was presumptively (A.R.S. § 28--692) under the influence of intoxicating liquor. Evidence that the defendant was the driver of the vehicle consisted of testimony that (1) immediately after the accident the defendants was pinned behind the steering wheel, with his right foot jammed between the brake and the accelerator, (2) certain statements were made by the defendant immediately after the accident indicating that he was the driver of the car, (3) the only other person who might have been driving the car was found dead, the front part of his body protruding from the right (passenger's) side of the car with his legs pinned down in the front compartment of the car, (4) there was the body of another deceased passenger in the center of the front seat with legs pinned by the dishboard and (5) the car in question was owned by the defendant's mother.

The first point raised on appeal pertains to the disqualification of the presiding judge in Santa Cruz County by an affidavit of bias and prejudice filed in pursuance of 17 A.R.S. Rules of Criminal Procedure, Rules 196--200. At the time the defendant came before the court for arraignment on the morning of February 25, 1963, an affidavit of bias and prejudice was filed against Judge Gordon Farley, presiding judge of the superior court in Santa Cruz County. Judge Farley continued the arraignment until that afternoon, at which time it was heard by Judge Alice Truman, a visiting judge from Pima County. At the same time, Judge Farley asked counsel for their preferences as to which judge the case should be assigned. One of three judges indicated as a preference by the defendant was Judge Raul H. Castro. No objection was voiced at that time to Judge Truman handling the arraignment, but that afternoon, when the defendant came before Judge Truman for arraignment, the defendant objected to the jurisdiction of this judge to preside at the arraignment. It was the position of the defendant that unless the entire case were assigned to Judge Truman, there would be no jurisdiction in the court to proceed in the matter of arraignment. The defendant's objection was overruled and the court proceeded to arraign the defendant. The defendant refused to enter a plea and stood mute. Judge Truman, in pursuance of Rule 167, Rules of Criminal Procedure, entered a plea of not guilty as to all counts. Judge Truman thereafter set the case for trial on March 26, 1963. The minute entries for the court reflect that at the time of the filing of the affidavit of bias and prejudice, Judge Farley assigned the case to Judge Truman for arraignment and, two days later, after the arraignment conducted by Judge Truman, assigned the case for all purposes to Judge Raul H. Castro. Judge Castro subsequently changed the trial date from March 26, 1963 to April 2, 1963, at which time the trial commenced which resulted in the defendant's conviction. Other than the objection voiced at the time of the arraignment before Judge Truman, there were no further objections to the jurisdiction of the court or to the procedure followed in the arraignment of the defendant.

It is the defendant's contention on appeal that he has never been properly arraigned and that the trial therefore was a nullity. Reliance is placed upon the case of Territory of Arizona v. Brash, 3 Ariz. 141, 32 P. 260 (1890), which decision involved a case in which the defendant was never arraigned before any judge. The decision holds that the subsequent trial and conviction were nullities.

The defendant relies upon several pronouncements of our Supreme Court pertaining to the mandatory duty of a presiding judge to assign the case to another judge upon the filing of an affidavit of bias and prejudice. In particular, a statement in Mosher v. Wayland, 62 Ariz. 498, 501, 158 P.2d 654 (1945), is relied upon:

'We have repeatedly held that when an affidavit of bias and prejudice is timely filed under the provisions of sec. 21--107, A.C.A.1939, the Presiding judge can perform no other function in connection with the case than to make an order that the trial be had before another judge.' (Emphasis added.) 62 Ariz. at 501, 158 P.2d at 655.

A more recent decision reaffirming this general law is Hordyk v. Farley, 94 Ariz. 189, 382 P.2d 668 (1963). Many of the decisions in this area are civil cases. Statutes providing for the disqualification of a judge in a civil action (A.R.S. § 12--409 et seq.) are expressed in somewhat different language than comparable rules for criminal actions, but the rules have been equated as to fundamentals by our Supreme Court. Marsin v. Udall, 78 Ariz. 309, 313, 279 P.2d 721 (1955).

Rule 200, Rules of Criminal Procedure, reads as follows:

'When application is made to a judge for a change of judge, he shall proceed no further in the action except to call another Judge to preside therein.' (Emphasis added.)

The defendant contends that the singular form of the word 'judge' used in this rule forecloses the assignment of the case to more than one judge. While semantics favors the position taken by the defendant, we see no real substance in the objection raised. The trial of this action was conducted before Judge Raul H. Castro, as to whom the defendant stated he had a preference. There were no judicial rulings involving discretion made by any other judge. The arraignment before Judge Truman was in pursuance of Rules of Criminal Procedure, which under the circumstances of this particular case spelled out her duties explicitly and left no room for discretion. ¹ As indicated previously the defendant had no objection to Judge Truman except that he was insisting the entire case be handled, both as to the trial and all preliminary procedural matters, by the same judge. We do not believe that our law requires so much. Generally, the disqualification of a judge does not prevent him from performing ministerial acts not involving judicial discretion:

'As a general rule, disqualification of a judge relates only to judicial acts or to acts which call for the exercise of a judicial discretion, and does not prevent the judge from performing, or necessarily render invalid, mere formal preliminary or ministerial acts.' 48 C.J.S. Judges § 97 a, p. 1106.

The reasoning of Marsin v. Udall, 78 Ariz. 309, 279 P.2d 721 (1955), lends support to our belief that the matter of a disqualification of a judge should not be viewed from its most technical aspects, but rather from the standpoint of substance. In Marsin, our Supreme Court held that the fact that a judge had ruled upon preliminary matters not going to the ultimate issues would not foreclose a litigant from exercising the privilege of filing an affidavit of bias and prejudice. The reasoning of the court required the express disapproval of a prior pronouncement of the court. ³

The defendant suggests that he was actually prejudiced in this case because motions to quash the information must be filed before arraignment. The answer to this objection is that there was no motion to quash filed, and no showing that had there been a motion to quash filed the ruling thereon would not have been deferred to Judge Castro. This court will not reverse because of mere possibility of prejudice. Art. 6, § 27, Arizona Constitution, A.R.S.

The next assignment of error complains that a requested instruction on circumstantial evidence was refused which would have informed the jury that the case of the state rested on circumstantial evidence, that a conviction on such evidence is not warranted when the circumstances proven are '* * * capable of explanation upon any reasonable hypothesis consistent with the defendant's innocence, * * *' and that conviction on such evidence would not be proper unless the proof be '* * * very strong and cogent. * * *'

While the defendant's instruction was refused, the court did give an instruction defining the nature of circumstantial evidence, as to which the defendant has no quarrel, and instructed the jury, inter alia:

'You are instructed to warrant a conviction upon circumstantial evidence each fact necessary to the conclusion shown to be established, that is the guilt of the defendant, must be proven by competent evidence beyond a reasonable doubt and all facts and circumstances proven should not only be consistent with the guilt of the accused but consistent with each other and Not consistent with any other reasonable theory or conclusion than that of his guilt and for you to produce in your minds the reasonable conclusion the defendant committed the offense charged against him, you are instructed that circumstantial evidence is not as a matter of law inferior to direct evidence. The two kinds of evidence are in effect the same. If equally...