State v. De Nistor, 6089

• Court: Arizona Supreme Court
• Writing for the Court: CAMERON; HOLOHAN
• Citation: State v. De Nistor, 143 Ariz. 407, 694 P.2d 237 (Ariz. 1985)
• Decision Date: 15 January 1985
• Docket Number: No. 6089,6089
• Parties: STATE of Arizona, Appellee, v. Norma Raquel Samper DE NISTOR, Appellant.

Page 237

694 P.2d 237

143 Ariz. 407

STATE of Arizona, Appellee, v. Norma Raquel Samper DE NISTOR, Appellant.

No. 6089.

Supreme Court of Arizona In Banc.

Jan. 15, 1985.

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

Thomas E. Higgins, Jr., Tucson, for appellant.

CAMERON, Justice.

Defendant, Norma Raquel Samper De Nistor, appeals from her conviction and judgment of guilt for first degree murder, A.R.S. § 13-1105. She was sentenced to life imprisonment without possibility of parole for twenty-five years, A.R.S. § 13-703. We have jurisdiction pursuant to Ariz. Const. Art. 6, § 5(3) and A.R.S. §§ 13-4031 and 13-4035.

We must decide the following issues:

1. Did the trial judge act improperly in

a. refusing to abide by the terms of the plea agreement,

b. allowing defendant to withdraw her plea of nolo contendere to second degree murder, and

c. allowing defendant to be tried contrary to the double jeopardy clause after the plea had been withdrawn?

2. Was defendant denied her constitutional right of self-representation?

3. Was the admission of certain hearsay statements improper?

4. Was the picture of the victim so gruesome as to be inflammatory and prejudicial?

5. Did the trial court err in refusing to use defendant's requested instruction on temporary insanity?

6. Was the defendant denied effective assistance of counsel?

The facts follow. Defendant, Norma De Nistor, and Tiberiu De Nistor, the victim, were married in 1975. At that time they were living in New York City, and the victim was driving a cab and studying engineering. In 1980, the couple moved to Tucson, Arizona, where Tiberiu began working as an engineer. In November of 1981, defendant returned to New York in order to have cosmetic surgery. She was there on 6 January 1982, when she received a phone call from her husband informing her that he no longer loved her. She returned to Tucson on 7 January. The victim told her that he wanted a divorce and moved his belongings out of the apartment. At 7 P.M. that evening, defendant purchased a .38 caliber handgun. The victim returned to the apartment that night to talk with defendant in order "to get this divorce thing out of the way." On 8 January, at approximately 2 A.M., defendant telephoned a friend in New York and stated "I kill Puilo." At 3:30 A.M., the police arrived at defendant's apartment. She opened the door and, in response to their request to talk to her husband, told them that he was fine. She invited the officers in and, after they saw the victim's body on the floor, she stated that she had killed him. An autopsy revealed that the victim had been shot six times in the head and chest.

On 15 January 1982 defendant was indicted and charged with first degree murder. The defense of insanity was interposed. From her conviction and sentence, defendant appeals.

THE PLEA WITHDRAWAL

Defendant initially entered a plea of nolo contendere to second degree murder, Rule 17.1(c), Arizona Rules of Criminal Procedure, 17 A.R.S., pursuant to a plea agreement in which she was to receive a sentence of seven years. Prior to the imposition of sentence the trial judge determined that it would not be in the interests of justice to accept a plea of nolo contendere and that the court could not abide by the agreement to limit the sentence to seven years. After a discussion with counsel, defendant withdrew her plea and the case proceeded to trial. Defendant now raises several objections to these events.

a. Terms of the Plea Agreement

First, defendant argues that allowing participation of decedent's family prejudiced her ability to maintain the plea. Members of the victim's family had requested that they be allowed to present evidence at the sentencing hearing pursuant to A.R.S. § 13-702(F), which allows the "family of the victim" to appear at aggravation and mitigation hearings "to present evidence and express opinions concerning the crime, [and] the defendant * * *." Because the plea was withdrawn prior to sentencing, however, members of the victim's family never had the opportunity to take part in the hearing, although the judge knew of their request. The judge, after considering information in the presentence report, decided to continue with the plea agreement without a ruling concerning whether members of the victim's family would be allowed to present evidence at a sentencing hearing. The court then reviewed doctors' reports, defense counsel's letters, victims' support letters, defendant support letters and a letter written by defendant. The court decided that it could not agree with the sentence. What part the possibility of the participation of the victim's family played, we can only surmise. In any event, the court, pursuant to Rule 17.4, has wide discretion in considering whether to accept or reject a plea agreement and may do so with or without the recommendation of the victim's family. We find no error.

b. Withdrawal of Plea

Defendant next argues that the plea was improperly withdrawn. Defendant cites Rule 17.5, Arizona Rules of Criminal Procedure, 17 A.R.S., which states, in pertinent part, that "[t]he court, in its discretion, may allow withdrawal of a plea of guilty or no contest when necessary to correct a manifest injustice." Defendant argues that because she did not demonstrate the requisite "injustice," the court should not have allowed her to withdraw her plea. Defendant, however, has mistakenly relied upon Rule 17.5. The applicable provision in this case is Rule 17.4, which states that:

d. The court shall not be bound by any provision in the plea agreement regarding the sentence or the term and conditions of probation to be imposed, if, after accepting the agreement and reviewing a presentence report, it rejects the provisions as inappropriate.

e. If any agreement or any provision thereof is rejected by the court, it shall give the defendant an opportunity to withdraw his plea, advising him that if he permits his plea to stand, the disposition of the case may be less favorable to him than that contemplated by the agreement.

We have interpreted this language to mean that a court, after accepting a plea, is not bound by the negotiated sentence. If the judge rejects the sentence, he is required to give the defendant the opportunity to withdraw the plea. Smith v. Superior Court, 130 Ariz. 210, 212, 635 P.2d 498, 500 (1981). In the instant case the judge acted properly in giving defendant the option to withdraw the plea. We find no error.

Defendant also maintains that the trial court should have determined that the plea was intelligently and voluntarily withdrawn. Defendant asserts that because the court must make this finding before accepting the plea, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), it should also do so before allowing a withdrawal. We do not agree. A judge may accept a plea of guilty only under certain conditions and may refuse to accept such plea if it is not knowingly, understandingly, and voluntarily made, or if there is no factual basis for the plea. Rules 17.1, 2, and 3, Arizona Rules of Criminal Procedure, 17 A.R.S. A court may not, however, refuse to accept a plea of not guilty. As to the withdrawal of a plea of guilty, the court is given wide discretion in allowing the defendant to change his mind. In most instances, when the ends of justice indicate that this should be done, as in the case of the refusal of the court to accept the terms of a plea agreement pursuant to Rule 17.4(e), the court must allow the defendant to withdraw his plea.

Neither is the procedure urged by defendant constitutionally mandated. Under the Due Process Clause, U.S. Const.Amend. XIV, a plea of guilty may not be accepted unless it is voluntarily and knowingly made. In foregoing a right to trial, a defendant waives several constitutional rights: the privilege against self-incrimination, the right to a jury trial, and the right to confront one's accusers. Boykin, supra, at 243, 89 S.Ct. at 1712, 23 L.Ed.2d at 279. These rights are so important that care must be taken to assure that defendant is aware of exactly what he has given up. "Consequently, if a defendant's guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void." McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418, 425 (1969). In withdrawing his plea, however, defendant does not forego any of these constitutional rights. Indeed, the rights that he forfeited when he pled guilty are returned. Thus, the due process concerns are not implicated in the same manner as when the plea is initially entered, and there is no need for the trial judge to make the same finding of voluntariness. We find no error.

c. Double Jeopardy

Defendant next contends that double jeopardy acts as a bar to trial after the plea withdrawal. We do not agree. Once a court accepts a plea of guilty, the accused is put in jeopardy. Smith, supra, 130 Ariz. at 212, 635 P.2d at 500. A court may not, therefore, sua sponte, enter an order vacating the acceptance of the plea of guilty and set the case for trial. Lombrano v. Superior Court, 124 Ariz. 525, 526, 606 P.2d 15, 16 (1980). This action would violate the constitutional proscription against a person "twice [being] put in jeopardy [for the same offense]." U.S. Const. amend. V; Ariz. Const. art. 2, § 10. However, "[i]f a defendant, after acceptance of a guilty plea by the court, moves to withdraw his guilty plea, he of course waives the jeopardy defense if his motion to withdraw is granted." Lombrano, supra. The court was not bound by the terms of the plea agreement and, in this case, the sentence agreed to by the parties and it so informed defendant. She, then, had the choice of going ahead with the sentencing, receiving whatever sentence the court might impose, knowing that it should be more than the seven years agreed to, or...