State v. Parker

• Decision Date: 14 July 1977
• Docket Number: No. 3903,3903
• Citation: State v. Parker, 567 P.2d 319, 116 Ariz. 3 (Ariz. 1977)
• Parties: STATE of Arizona, Appellee, v. Earl PARKER, Jr., Appellant.
• Court: Arizona Supreme Court

Page 319

567 P.2d 319

116 Ariz. 3

STATE of Arizona, Appellee, v. Earl PARKER, Jr., Appellant.

No. 3903.

Supreme Court of Arizona, In Banc.

July 14, 1977.

Bruce E. Babbitt, Atty. Gen., by William J. Schafer, III and Lynn Hamilton, Asst. Attys. Gen., Phoenix, for appellee.

Lawrence William Katz, Phoenix, for appellant.

HAYS, Justice.

Earl Parker, Jr., hereinafter appellant, was convicted of assault with a deadly weapon, to wit, a gun, by a jury in May, 1976. A previous trial on the same charge had ended in a mistrial as the result of a defense motion. Shortly thereafter, appellant was convicted of a violation of A.R.S. § 13-919, "Possession of (a) pistol by (a) criminal," by a judge of the Superior Court of Maricopa County. On the former offense he was sentenced to not less than ten years, nor more than twelve. For the latter, he received not less than four years, nine months, nor more than five years.

The appeals in both matters were consolidated and this court has jurisdiction pursuant to 17A, A.R.S. Supreme Court Rules, rule 47(e)(5).

The questions appellant raises regarding the assault charge are as follows:

1. Did the second trial violate appellant's right to be free from double jeopardy?

2. Did the state's failure to comply with the rules of discovery at the second trial so prejudice appellant that the trial court erred in failing to dismiss the charge?

3. Did the state fail to preserve vital evidence to appellant's prejudice, thereby requiring dismissal of the charges?

4. Did the jury violate the trial court's admonition not to consider the possible penalties in their deliberations?

Regarding the possession of a pistol by a criminal charge, the appellant raises these issues:

5. Was there a violation of the time limits within which appellant should have been brought to trial?

6. Did the trial violate appellant's Fifth, Sixth and Fourteenth Amendment rights?

7. Should evidence regarding the pistol have been suppressed due to an illegal search for and seizure of that weapon?

The facts of the case are that on September 13, 1975, appellant, a Negro, learned that a Caucasian neighbor, Ken Reed, had called his stepchildren "niggers." With a small derringer pistol in his back pocket, appellant went to Reed's house looking for him. Reed was across the street at the house of another neighbor, Del Lank. When he saw appellant at his door, he crossed the street and approached him. In one hand, Reed was carrying a jack handle which he'd been using on Lank's car. Lank and Reed's wife, Mary witnessed the confrontation between the two men which quickly degenerated into a physical struggle.

Appellant eventually got the better of Reed, had him down on the ground in a kneeling position, with the derringer pointed at his head. At this point, Mary Reed emerged from her home, to which she had retreated to call the police. In her hand was a .45 caliber revolver, which appellant no doubt observed. There is a discrepancy in the testimony as to whether one or two shots were fired, but as the result of at least one shot, Reed received wounds which were not fatal.

Basically, appellant's defense to the charge was that he acted in self-defense, that it was not he, but Mary Reed, who shot the victim, and that his gun merely went off accidentally when, after being hit by the bullet from her gun, the victim lurched into appellant.

The police arrived shortly after the shooting. Two officers, directed by neighbors went to appellant's home and found him there in the doorway. They asked where the man with the gun was and appellant replied he was the one. He was promptly handcuffed. Without reading him the Miranda warnings, appellant was asked by the police where the gun was. Appellant led the police to the closet where he'd placed the gun, and they seized it.

The police never retrieved the bullet that passed through and out of the victim's body. They did not confiscate the victim's clothing or the .45 caliber revolver until some weeks later, after the clothing had been washed several times and the gun might have been repaired. The gun was, in fact, later tested by the police to see if it worked. It did, but this test was not revealed to appellant's counsel until several days into the second trial. The clothing was not given to defense counsel until after the first trial had begun.

DOUBLE JEOPARDY

Because the first trial was erroneously declared a mistrial, and the error was prompted by a defense motion, the second trial did not violate appellant's right to be free from double jeopardy.

Appellant successfully convinced the trial judge at the first trial that the failure of the prosecutor to present the victim's clothing to defense counsel until after trial had begun violated the mandates of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and 17 A.R.S. Rules of Criminal Procedure, rule 15.1. He argues, on appeal, that the victim's shirt was important to the defense because if it did not have powder burns on it, that would indicate there was no close-range shooting. This evidence would exculpate him, appellant alleges, and its suppression amounted to prosecutorial misconduct. As a result of that misconduct, the trial judge declared a mistrial, and a mistrial based on such misconduct bars retrial.

It is true that prosecutorial overreaching or misconduct which causes a defendant to move for a mistrial may bar retrial, based on the Fifth Amendment right to be free from double jeopardy. United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); State v. Madrid, 113 Ariz. 290, 552 P.2d 451 (1976). Otherwise, a defense motion for a mistrial removes any barrier to reprosecution. State v. Madrid, supra.

Rule 15.1(a)(7) was promulgated to meet Brady's mandates. It requires that

"(a)ll material or information which tends to mitigate or negate the defendant's guilt as to the offense charged, or which would tend to reduce his punishment therefor . . ." (emphasis added).

must be revealed within certain time limits to the defendant. It was not violated in this case, since the charge against appellant was assault with a deadly weapon, not aggravated battery. The mere pointing of the gun by appellant at the victim constituted the assault. State v. Gary, 112 Ariz. 470, 543 P.2d 782 (1975), cert. denied, 425 U.S. 916, 96 S.Ct. 1517, 47 L.Ed.2d 767 (1976). It is an elementary legal concept that assault and battery are different acts. The assault is an offer to use force to injure another; a battery is the actual use of it on the other. State v. Murphy, 128 Vt. 288, 262 A.2d 456 (1970). To constitute an assault, it is not necessary that any actual injury be inflicted. State v. Williams, 13 Ariz.App. 201, 475 P.2d 293 (1970).

The assault herein was completed when the appellant pointed the gun at Reed's head. Who actually shot Reed was not an issue in the case, nor should it have been. Therefore, the "suppression" of the clothing violated neither rule 15.1 nor Brady v. Maryland, supra. It follows that the trial court should not have granted the motion for mistrial, but since it did, at appellant's request, the double jeopardy prohibitions do not apply to retrial. State v. Madrid, supra.

FAILURE TO COMPLY WITH DISCOVERY RULES AT SECOND TRIAL

After the second trial began, it became apparent to defense counsel through answers elicited from state witnesses that the .45 caliber revolver owned by the victim and seen in Mary Reed's hand during the assault incident had been seized and tested by police. The test-firing and results had not been made known to defense counsel prior to trial.

This was, indeed, a violation of rule 15.1(a)(3), which requires the state to reveal

"(t)he names and addresses of experts who have personally examined . . . any evidence in the particular case, together with the results . . . of scientific tests, experiments or comparisons . . . ."

Again, appellant argues this information was relevant to whether appellant or Mary Reed shot the victim. While we do not condone the prosecutor's failure to reveal the test-firing, our response must be the same as it was in the first issue above. The issue was not who shot Reed. Therefore, whether the .45 caliber was in working order on September 13, 1975 was not directly relevant to the guilt, innocence or punishment of appellant for the assault.

FAILURE TO PRESERVE VITAL EVIDENCE

Appellant asserts he was denied due process of law because of the failure of the police to seize and preserve in their physical state on the day of the shooting the .45 caliber gun, the victim's clothing and the casings of the bullets alleged to have been fired, and that this failure was a violation of rule 15.1(d), as well.

For the reasons given in the previous two sections of this opinion, we find that the items were neither vital nor material to the defense, and therefore appellant was not denied due process of law. It is equally apparent rule 15.1(d) was not violated.

JURY VIOLATION OF COURT'S ADMONITION

In their instructions, the jury was properly admonished not to consider the possible penalties the defendant would face if convicted. During deliberations, the jury sent a note to the judge, which was, unfortunately, lost. We therefore have only the recollection of the judge as to its content to rely on, as she was the only one to actually see the note. It was her recollection that the note read:

"May we make a recommendation on the verdict?"

Both the prosecutor and defense counsel were notified, by phone, of the communication and that the judge's answer would be a simple, "No." Neither attorney objected. Despite the failure to object, appellant now asserts that the trial court erred in failing to grant him a new trial because the jury violated the court's admonition not to consider the penalty and because the court commented on the evidence by the answer it gave.

These arguments are specious. There is no presumption that jurors will betray their trust and...