State v. Mulligan

• Decision Date: 30 June 1980
• Docket Number: No. 4893,4893
• Citation: 126 Ariz. 210,613 P.2d 1266
• Parties: The STATE of Arizona, Appellee, v. Edward Francis MULLIGAN, Appellant.
• Court: Arizona Supreme Court

Page 1266

613 P.2d 1266

126 Ariz. 210

The STATE of Arizona, Appellee, v. Edward Francis MULLIGAN, Appellant.

No. 4893.

Supreme Court of Arizona, In Banc.

June 30, 1980.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III and David R. Cole, Asst. Attys. Gen., Phoenix, for appellee.

Thomas Alton, P. C., Sedona, for appellant.

CAMERON, Justice.

This is an appeal by defendant E. Francis Mulligan, from a jury verdict and judgment of guilt to the crimes of submitting a false insurance claim, A.R.S. § 44-1220; grand theft through false pretenses, A.R.S. § 13-661; and arson with intent to defraud, A.R.S. § 13-235, and sentences of three years on each count, to run concurrently. We have jurisdiction pursuant to Rule 47(e)(5), Rules of the Supreme Court, 17A A.R.S.

We are asked to answer five questions on appeal:

1. Did the trial court err in denying defendant's motion to dismiss the grand jury indictments?

2. Did the trial court err in denying defendant's motion for change of venue?

3. Was evidence of a prior bad act inadmissible?

4. Did the court commit reversible error in failing to hold a Rule 11 hearing?

5. Did the court err in sentencing defendant for six counts of criminal contempt?

The facts necessary for a disposition of these questions on appeal are as follows. Defendant Edward Francis Mulligan was employed for seven years by the Arizona Daily Sun, in Flagstaff, Arizona. In 1975, he left that position to open a weekly newspaper, The Flagstaff News, of which he became the owner and publisher. A fellow employee of the Daily Sun, Joe Blount, left the Sun at that time to become an editor of the News.

On 21 December 1976, there was a fire at the Flagstaff News, which led to the conviction of defendant for arson and fraudulent insurance claims. Joe Blount, who was granted immunity by the State, testified at trial that he and defendant had planned the fire, and that he had set the fire while defendant left town so as to have an alibi. He testified how the defendant had prepared and filed claims to the insurance company for items the News had never owned and which were never damages by the fire. Mr. Blount also testified to an earlier fire, in April of 1976, which he and defendant planned and which he and another editor set. No prosecution was ever brought in this earlier fire.

The proceedings were fraught with continuances due mainly to defendant's inability to retain counsel or to his health. The three-week trial began on 30 January 1979 with defendant representing himself. The court appointed a legal advisor who was present throughout the trial and argued motions on behalf of the defendant.

The jury returned a verdict of guilty to all three counts, and defendant was sentenced to three years in prison on each count, to run concurrently.

GRAND JURY INDICTMENTS

Defendant contends that the trial court erred in denying his challenge to the grand jury indictments because the grand jury was not composed of a sufficient number of qualified jurors, and that the grand jury considered inadmissible evidence in returning the indictments. The grand jury transcripts were filed on 8 March and 10 April 1978. Defendant did not challenge the grand jury returns until 11 August 1978.

We have stated:

" * * * We do not reach the merits of this issue, as we agree with the trial court that the defendant's motion was untimely. Pursuant to 17 A.R.S., Rules of Criminal Procedure, rule 12.9a, a grand jury proceeding may be challenged only by a motion for a new finding of probable cause. Subsection b. of the same rule states that such a motion may be filed no later than twenty-five days after the transcript and minutes of the grand jury proceeding have been filed. A defendant waives his objections to the grand jury proceeding by failing to comply with the timeliness requirement. (citation omitted)" State v. Smith, 123 Ariz. 243, 247-48, 599 P.2d 199, 203-04 (1979).

In the instant case, the defendant also failed to timely challenge the grand jury indictments. Therefore, we find no error in the denial of the challenge to the returns of the grand jury. State v. Smith, supra; State v. Lopez, 27 Ariz.App. 408, 555 P.2d 667 (1976).

CHANGE OF VENUE

Before trial and at various times throughout trial, defendant moved for a change of venue, claiming that the pretrial publicity was so prejudicial that it would be impossible to obtain a fair trial in Coconino County. The fire at The Flagstaff News and the proceedings against defendant were, in fact, the subjects of extensive news coverage in Flagstaff and throughout the state. Much of the publicity came from defendant's own newspaper, which carried numerous articles and editorials regarding the alleged arson.

After oral argument of defendant's initial motion, ¹ the court made a specific finding that the publicity in this case was not outrageously prejudicial or inflammatory. As the defendant presented no examples of the prejudicial coverage of the case, the judge relied on his personal observation of television and news articles. The court noted the coverage of this case was of an informative nature and was not the sort of crusading editorial calling for defendant's conviction proscribed by the court in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966).

The judge also carefully voir dired the potential jurors on the subject of publicity, concluding by asking:

"If any of you feel that you would not be able to approach this case with the degree of impartiality that I have been talking about, would any of you who have been called forward ask to be excused because you don't think that you could be impartial or open minded?"

Of the 34 jurors examined, four admitted they could not be impartial as to Mr. Mulligan's guilt and were excused. Several others excused themselves due to familiarity with witnesses. None of the ten jurors finally chosen asked to be excused for partiality or familiarity.

The judge also admonished the jury after its selection not to be swayed by publicity about the case, and these admonitions were repeated at the end of nearly every session of court.

Rule 10.3 of the Arizona Rules of Criminal Procedure, 17 A.R.S., provides for change of venue. Rule 10.3(b) states:

"b. Prejudicial Pretrial Publicity. Whenever the grounds for change of place of trial are based on pretrial publicity, the moving party shall be required to prove that the dissemination of the prejudicial material will probably result in the party being deprived of a fair trial."

A defendant seeking a change of venue, then, has the burden of proof to show "the publicity has been so extensive and so prejudicial as to create the probability that he will be denied a fair trial." State v. Smith, 116 Ariz. 387, 569 P.2d 817 (1977). See also, Phoenix Newspapers, Inc. v. Jennings, 107 Ariz. 557, 490 P.2d 563 (1971); State v. McGee, 91 Ariz. 101, 370 P.2d 261, cert. denied 371 U.S. 844, 83 S.Ct. 75, 9 L.Ed.2d 79 (1962).

This burden may be met in several ways. In some unusual cases, the publicity may be so outrageous that prejudice to the defendant may be presumed. State v. Smith, 123 Ariz. 231, 236, 599 P.2d 187, 192 (1979). Thus, where publicity so pervades the proceedings so as to create a "carnival atmosphere," Sheppard v. Maxwell, supra, defendant is entitled to a change of venue without a showing of identifiable prejudice. Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). See also Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963).

In most cases, however, the defendant must show identifiable prejudice resulting from the publicity. Estes v. Texas, supra. Defendant must make it affirmatively appear that there is such a feeling of prejudice in the community as will be reasonably certain to prevent a fair and impartial trial. State v. Hunt, 2 Ariz.App. 6, 21, 406 P.2d 208, 223 (1965).

It is not required that jurors be totally ignorant of the facts of the case. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Rather, the test is whether the juror can lay aside that knowledge and render the verdict based solely upon evidence presented at trial:

"Furthermore, a change of venue is not required unless the defendant can demonstrate that the publicity has reached the jury panel and that jurors both have formed and are unable to lay aside preconceived notions regarding the defendant's guilt. State v. Endreson, 109 Ariz. 117, 506 P.2d 248 (1973)." State v. Smith, supra, 116 Ariz. at 390, 569 P.2d at 820. See also State v. Gretzler, 126 Ariz. ---, 612 P.2d 1023 (No. 3750, filed 21 April 1980); State v. Lacquey, 117 Ariz. 231, 571 P.2d 1027 (1977); Northern California Pharmaceutical Association v. United States, 306 F.2d 379 (9th Cir.), cert. denied 371 U.S. 862, 83 S.Ct. 119, 9 L.Ed.2d 99 (1962).

Whether to grant or deny a motion for change of venue based on pretrial publicity is within the sound discretion of the trial court. State v. Reid, 114 Ariz. 16, 559 P.2d 136 (1976), cert. denied 431 U.S. 921, 97 S.Ct. 2191, 53 L.Ed.2d 234 (1977); State v. Schmid, 107 Ariz. 191, 484 P.2d 187 (1971). The trial court's ruling will not be overturned on appeal absent a clear abuse of discretion and evidence that the ruling has prejudiced the defendant. State v. Smith, supra, 116 Ariz. at 390, 569 P.2d at 820. We find no error.

PRIOR BAD ACT AND TESTIMONY OF AN ACCOMPLICE

Defendant was indicted and tried based upon a fire that occurred on 21 December 1977. The State introduced, over defendant's objection, evidence regarding a similar fire at defendant's newspaper office in April of 1976. At trial, the State presented evidence of the first fire through the testimony of Joe Blount, who had admitted to setting both fires. He testified that he and another newspaper employee set the first fire and that he and defendant had made and collected on fraudulent claims to the...