State v. Moore, 2270

• Decision Date: 22 November 1972
• Docket Number: No. 2270,2270
• Citation: 108 Ariz. 532,502 P.2d 1351
• Parties: The STATE of Arizona, Appellee, v. Robert Bruce MOORE, Jr., Appellant.
• Court: Arizona Supreme Court

Page 1351

502 P.2d 1351

108 Ariz. 532

The STATE of Arizona, Appellee, v. Robert Bruce MOORE, Jr., Appellant.

No. 2270.

Supreme Court of Arizona, In Division.

Nov. 22, 1972.

Rehearing Denied Jan. 2, 1973.

Gary K. Nelson, Atty. Gen., by Jerry C. Schmidt and William P. Dixon, Asst. Attys. Gen., Phoenix, for appellee.

Laber, Morrow, Lovallo & Colarich, by Joseph A. Lovallo, Tucson, for appellant.

HOLOHAN, Justice:

The appellant was tried by jury and convicted of the offenses of armed robbery and attempted murder. He was sentenced to confinement in the state prison, and he brings this appeal.

The first trial of appellant for the above offenses resulted in a mistrial, and it was at a second trial that the challenged conviction was obtained. The appellant does not urge that any reversible error was committed in the course of the second trial, and our review of the record satisfies us that there was no such error.

Appellant challenges his conviction on the basis that he should not have been tried a second time after the mistrial of his first trial. Essentially two questions are presented:

1. Does the absence of a court reporter at the time the events occur upon which a mistrial is based deny a defendant due process of law?

2. Does the record show any legally sufficient reasons for the declaration of a mistrial?

The initial prosecution of appellant began September 1, 1970 and lasted 12 days. The deliberation of the jury began at about 4:00 p.m. the afternoon of September 18, 1970, and it extended into the following day. At the beginning of the second day of deliberation the instructions were reread to the jury. Around 3:00 p.m. the second day the jury requested definitions of the terms 'insanity,' 'psychosis' and 'psychotic neurosis.' These definitions were not given. Instead, the court ordered them to rely on the evidence and the use of the terms in the case. At approximately 4:50 p.m. of the second day of deliberation the trial judge called the jury back to the courtroom. The trial judge asked the foreman if it would be possible to reach a verdict. The foreman expressed the opinion that the jury probably could not reach a verdict. The jury was reportedly deadlocked at eight to four. The trial judge inquired of the panel whether they thought a verdict could be reached, and only one juror expressed the belief that further beliberation would result in a verdict. The trial judge thereafter declared a mistrial.

The appellant argues that a retrial constitutes double jeopardy which is prohibited by the Fourteenth Amendment, citing Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Appellant recognizes that there are situations in which a jury can be dismissed without jeopardy attaching, and one of these occurs when the jury is unable to reach a verdict. The discretion to discharge the jury, appellant urges, may be exercised only in extraordinary and striking circumstances. Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963).

Appellant's threshold point is that there is no record from which this Court can review the question of whether the trial judge abused his discretion in the discharge of the jury. A court reporter was present throughout the trial, and a transcript has been prepared and filed, but the reporter was not present at any session after the jury began its deliberation. There is no stenographic transcript of the proceedings of September 19, 1970, the second day of deliberation and the day upon which the mistrial was declared. From this fact the appellant argues that there is no record, and he must be discharged. We do not agree.

The appellant was entitled to the presence of a court reporter at all sessions of the court. Rule 252, Rules of Criminal Procedure, 17 A.R.S. A court reporter was not present at any session after the jury had been instructed, but the appellant did not request the presence of a reporter at any such session, and appellant took part in such sessions without once requesting a court reporter.

In State v. Crowder, 103 Ariz. 264, 440 P.2d 29 (1968), we held that where no objection was made by the defendant to proceeding to trial without a reporter, he waives his right to thereafter complain that the proceedings were not reported. The holding in Crowder was reaffirmed in State v. Burrell, 106 Ariz. 100, 471 P.2d 712 (1970), and we held that the right to have the proceedings taken down and transcribed may be waived.

Dur process does not require a stenographic transcript in every case. Alternative methods of reporting trial proceedings are permissible if they place before an appellate court an equivalent report of the events at trial from which the appellant's contentions arise. The material before the state court must constitute a record of sufficient completeness for adequate consideration of the errors assigned. Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963).

Putting aside the fact of waiver of a court reporter, we find that there is a sufficient record before us which meets the test of Draper, supra. The record sent forward to us includes, among other documents and exhibits, the minutes taken by the clerk at all sessions of the court including those after the jury had begun its liberation and including the session at which the trial judge ordered the mistrial. In addition, there is a reporter's transcript of the argument and representations made by counsel for appellant at the Motion to Quash the information in this case. For the purposes of reviewing this matter we will accept the statements of counsel for appellant made in the motion as true.

For many years it has been recognized that a defendant may be retried after a trial judge had, without the defendant's consent, discharged a jury unable to agree on a verdict. United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824). This position has been reaffirmed in Wade v Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949), and United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971).

Disagreement by the jury is not the only cause for mistrial as pointed out in Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961), the Court said:

'Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant's consent and even over his objection, and he may be retried consistently with the Fifth Amendment.' (Citing cases) 367 U.S. at 368, 81 S.Ct. at 1526, 6 L.Ed.2d at 904.

The issue resolves itself into whether under all the circumstances the trial judge acted in the exercise of sound discretion by...