State v. Mulalley

Decision Date11 September 1980
Docket NumberNo. 4750,4750
Citation618 P.2d 586,127 Ariz. 92
PartiesThe STATE of Arizona, Appellee, v. Michael James MULALLEY, Appellant.
CourtArizona Supreme Court
Robert K. Corbin, Atty. Gen. by William J. Schafer, III, and Gerald R. Grant, Asst. Attys. Gen., Phoenix, for appellee

J. Douglas McVay, Phoenix, for appellant.

CAMERON, Justice.

On 23 July 1979, defendant Michael James Mulalley was convicted by a jury of two violations of A.R.S. § 13-1206, dangerous or deadly assault by a prisoner. Immediately after the guilty verdicts, the trial court followed the mandatory sentencing provision of A.R.S. § 13-1206 and sentenced Mulalley to two life terms. As required by the statute, these sentences were made to run consecutively to each other and to all other sentences the defendant was then serving. Mulalley now appeals both conviction and sentence. We have jurisdiction pursuant to A.R.S. § 13-4031.

The defendant raises three issues on appeal:

1. Did the trial court err in refusing to grant defendant's motion for mistrial on the basis of the inadmissibility of evidence of the charge for which the defendant was being tried at the trial in which the assault occurred?

2. Was the sentence imposed upon the defendant cruel and unusual, in violation of the Eighth Amendment of the United States Constitution and Article 2, Section 15 of the Arizona Constitution?

3. Does A.R.S. § 13-1206 violate the equal protection clause of the Fourteenth Amendment to the Constitution of the United States?

The following facts are necessary to a resolution of these issues. On 23 January 1979, some six months prior to trial in the instant case, Mulalley was on trial in Maricopa County Superior Court for an unrelated felony. Shortly after a guilty verdict was pronounced, the defendant, who had been seated with his lawyer at a table in front of the judge's bench, jumped up from this table and ran toward an exit door behind the bench. Deputy Sheriff Nibouar, who had been seated behind the defendant and his lawyer, immediately pursued Mulalley. The defendant grabbed Court Clerk Cari Faust by the hair and pulled her out of her chair and onto the floor. With his other hand, Mulalley groped among the papers on Faust's desk, where he found a pair of heavy, pointed desk scissors. He brandished the scissors at Nibouar. Nibouar backstepped to avoid being hit, tripped, and fell. When he recovered his footing, Nibouar faced Mulalley, who threatened to harm Faust if Nibouar came nearer. Nibouar jumped Mulalley, disarmed him and flattened him over Faust's desk. She moved away, and, with the assistance of two jurors and a county attorney, Deputy Nibouar restrained Mulalley in leg irons and handcuffs. In the scuffle, Nibouar suffered a small wound in the web of his hand which did not require medical attention. Clerk At Mulalley's trial on the charge of dangerous assault by a prisoner, the State called as witnesses Deputy Nibouar, Clerk Faust, jurors James Sears and J. M. Bennett, and Deputy County Attorney Michael Donovan. All of these witnesses had personally observed or had been involved in the events which formed the basis for the charge. In addition, the State introduced photographic evidence of Nibouar's and Faust's injuries and the scissors Mulalley seized from Faust's desk. From jury verdicts and judgments of guilt and sentencing thereon, Mulalley appeals.

Faust's wounds consisted of scratches on her face, small cuts on her left forearm, and bruises on her back.


Through the testimony of Nibouar, Faust, Sears, and Donovan, the State established that the alleged assault had taken place while Mulalley was in court for trial on some unspecified criminal charge. During direct examination of the last prosecution witness, J. M. Bennett, the jury heard the following testimony:

"Q Directing your attention to January 23 of this year, at that time were you serving as a juror in Maricopa County Superior Court?

"A Yes, I was.

"Q Do you recall where you were on that date in your juror duties, where you were located in the court building?

"A Yes, I was in the fifth seat from the back row.

"Q Do you recall where that courtroom was?

"A Yes. It was on this wing on the far side.

"Q At that time in your juror duties, could you tell us what type of proceedings you were involved in?

"A There was a rape case, assault and battery.

"Q Do you recall the name of the person who was involved in that trial?

"A Yes, I do.

"Q Could you tell us what that name was, please?

"A Michael James Mulalley."

Following this testimony, the defense made a motion for mistrial, out of the jury's hearing. Both the defense and the court clearly accepted the prosecutor's avowal that he had not intended for Bennett to refer to the crimes for which Mulalley was on trial in January. After a recess to consider the defense motion, the trial court ruled that Bennett's testimony concerning the nature of the January charges was inadmissible. The court ordered the testimony stricken from the record and instructed the jury to disregard Bennett's comments "with regard to what the charges were or the crimes were that were involved in the previous trial." The court denied the defense motion for a mistrial.

The defendant argues that reference to the nature of the crimes for which he was being tried in January was so prejudicial that it necessitated a mistrial. The State argues that the reference was admissible and therefore could not serve as grounds for mistrial.

We agree with the trial court that testimony concerning the charge for which the defendant was previously tried was error. State v. Tuell, 112 Ariz. 340, 541 P.2d 1142 (1975); State v. Moore, 108 Ariz. 215, 495 P.2d 445 (1972). It was proper to inform the jury that the assault was committed while the defendant was in court for another offense. A recognized exception to the general rule that evidence of other crimes is not admissible in the trial of a separate and distinct crime is the "complete story exception." State v. Myers, 117 Ariz. 79, 570 P.2d 1252 (1977). The jury does not need to know, however, the nature of the offense. In the instant case, the jury could have decided that he was a rapist and have convicted him for the crime charged on lesser evidence than they might normally require. The trial court was correct in striking the comment and instructing the jury to disregard it. State v. Greer, 118 Ariz. 349, 576 P.2d 1004 (App.1978).

We believe, however, that even if we were to hold that the error was not cured by the trial court's striking of the evidence and instructing the jury to disregard the statement, we need not reverse. Given the overwhelming and uncontroverted evidence against the defendant, we find that the error was not prejudicial and that the jury, beyond a reasonable doubt, would still have found the defendant guilty even if the prejudicial testimony had not been heard. Although we find error, we do not need to reverse. State v. Sustaita, 119 Ariz. 583, 583 P.2d 239 (1978).


The defendant challenges the constitutionality of A.R.S. § 13-1206 on the grounds that the statute mandates a cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States and Article 2, Section 15 of the Arizona Constitution.

Our statute reads:

"Dangerous or deadly assault by prisoner

"A person, while in the custody of the department of corrections, a law enforcement agency or county or city jail, who commits an assault using or exhibiting a deadly weapon or dangerous instrument or who intentionally or knowingly inflicts serious physical injury upon another person is guilty of a felony and upon conviction shall be sentenced to life imprisonment and shall not be eligible for suspension or commutation of sentence, probation, parole or release on any other basis until such person has served not less than twenty-five years. A sentence imposed pursuant to this section shall be consecutive to any other sentence presently being served or imposed upon the defendant." A.R.S. § 13-1206.

Courts first look to the statute in determining whether a sentence is excessive. It has been stated, as to sentencing, the

"function of the legislature is primary, its exercise fortified by presumptions of right and legality, and is not to be interfered with lightly, nor by any judicial conception of * * * wisdom or propriety." Weems v. United States, 217 U.S. 349, 379, 30 S.Ct. 544, 554, 54 L.Ed. 793, 803 (1910).

This principle of judicial restraint means that, in the vast majority of cases, we will not disturb a sentence which is within the statutory limits. See, e. g., State v. Pacheco, 121 Ariz. 88, 588 P.2d 830 (1978); McKellar v. Arizona State Department of Corrections, 115 Ariz. 591, 566 P.2d 1337 (1977); State v. Stadie, 112 Ariz. 196, 540 P.2d 668 (1975), cert. den. 425 U.S. 974, 96 S.Ct. 2174, 48 L.Ed.2d 798 (1977). See also Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980).

The fact that a sentence is prescribed by statute, however, "does not conclusively establish the punishment's constitutionality, for the Eighth Amendment is a limitation on both legislative and judicial action." Ralph v. Warden, 438 F.2d 786, 788-89 (4th Cir. 1970), cert. den. 408 U.S. 942, 92 S.Ct. 2846, 33 L.Ed.2d 766 (1972). We have said that this court might

"find a particular penalty so severe as to shock the conscience of society and require a holding that it violates the constitutional mandate. Such holdings will have to be made on a case-by-case approach which will conform to the general mores of society at the time of the decisions." State v. Davis, 108 Ariz. 335, 337, 498 P.2d 202, 204 (1972). See also, Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958).

As Davis, supra, suggests, in order to find a statutorily mandated sentence cruel and unusual, we must determine, not whether it offends our own perceptions...

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