State v. Pieck

• Decision Date: 17 December 1974
• Docket Number: No. 2873,2873
• Citation: 529 P.2d 217,111 Ariz. 318
• Parties: STATE of Arizona, Appellee, v. Nicholas Michael PIECK, II, Appellant.
• Court: Arizona Supreme Court

Page 217

529 P.2d 217

111 Ariz. 318

STATE of Arizona, Appellee, v.Nicholas Michael PIECK, II, Appellant.

No. 2873.

Supreme Court of Arizona, In Banc.

Dec. 17, 1974.

Rehearing Denied Jan. 14, 1975.

N. Warner Lee, Atty. Gen., Gary K. Nelson, Former Atty. Gen. by Michael C. Anderson, Asst. Atty. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender by H. Allen Gerhardt, Jr., Deputy Public Defender, Phoenix, for appellant.

STRUCKMEYER, Justice.

Appellant, Nicholas, Michael Pieck II, was indicted for and convicted of the murders in the first degree of Manuel and Mary Salado and the theft of their automobile.From the judgments and sentences thereon, he appeals.

Before trial, appellant was examined pursuant to A.R.S. § 13--1621 as to his competency to stand trial.That statute provides for appointment of two impartial medical experts to make the examination and that their reports shall be available to the court and to counsel.However, any information obtained from a defendant cannot be used against him at any trial in which guilt or innocence is to be determined unless he consents thereto.

Appellant complains that contrary to the statute on two occasions on cross-examination of appellant, the prosecuting attorney asked questions concerning certain factual matters which appeared only in the medical reports of the two doctors.Appellant did not, however, object when the questions were asked.Failure to object to improper questions constitutes a waiver and is not grounds for reversal on appeal.State v. Endreson, 109 Ariz. 117, 506 P.2d 248(1973).We therefore hold that provisions of the statute were waived.

Appellant urges that the phychiatric reports should not have been made available to the prosecution at all, because this violated his Fifth Amendment rights.Since appellant failed to interpose an objection at the trial level on this ground and the testimony complained of is not in any event fundamentally prejudicial, we think it unnecessary to pass on the question raised.

The appellant next complains of a lack of due process of law.The circumstances upon which he bases this complaint are that after submitting the case to the jury, arguments were made on certain motions solely for the trial record and in the absence of the trial judge.We do not, however, consider that the failure of the trial judge to hear appellant's arguments requires a reversal, although we condemn the practice.While it is true that due process requires the opportunity to be heard, appellant had the opportunity to present the same arguments on his motion for new trial, and, therefore, the opportunity to fully apprise the trial judge of the grounds upon which his motions were based.Moreover, appellant has not raised on appeal any of the matters assertedly argued out of the presence of the judge.The failure to assign these matters as error in this Court is indicative of the frivolous nature of the complaint in this Court and an obvious abandonment of the claim of error.

Appellant complains of the failure of the court on its own motion to order a competency examination before sentencing.As stated, defendant was examined before trial as to his mental competency.Both examining doctors concluded that the appellant was not suffering from any mental illness or defect.Both felt that appellant was not suffering from a sociopathic or psychopathic personality disorder, and the court found that appellant was legally sane, able to understand the nature of the charges against him and to assist counsel in his own defense.

Appellant's complaint of error is predicated on the fact that after the trial a psychological evaluation of appellant was made by Frank Chelese, a Ph.D.He expressed the opinion that he'suspected'appellant had a sociopathic personality.We do not consider that the opinion of Frank Chelese, Ph.D., required the trial judge on his own motion to order another psychiatric examination before sentencing.No assertion is made that a sociopathic personality is a mental...