State v. Ramirez
| Decision Date | 31 March 1975 |
| Docket Number | No. 2937,2937 |
| Citation | 533 P.2d 665,111 Ariz. 498 |
| Parties | The STATE of Arizona, Appellee, v. Manuel Robert RAMIREZ, Appellant. |
| Court | Arizona Supreme Court |
N. Warner Lee, Former Atty. Gen., Bruce E. Babbitt, Atty. Gen. by Frank T. Galati, Asst. Atty. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender by Anne Kappes, Deputy Public Defender, Phoenix, for appellant.
This is an appeal from a jury verdict and judgment of guilt to the charge of assault We are asked to answer the following questions on appeal:
with a deadly weapon, A.R.S. § 13--249 as amended, and a sentence thereon of not less than ten nor more than twenty years in the Arizona State Prison.
1. May the provision of A.R.S. § 13--1621(E) which provides for a hearing before trial following the appointment of medical experts to determine whether defendant is capable of standing trial be waived on the part of the defendant or his counsel by failure to protest proceeding to trial?
2. Was the defendant entitled to a directed verdict of acquittal by reason of insanity when the State did not present any evidence to rebut defendant's evidence of insanity?
3. Was the defendant deprived of a fair trial by the misconduct of the prosecutor in closing argument in which he referred to matters not in evidence and argued that the defendant did not call certain named witnesses?
4. Was it reversible error for the trial court to replay instructions to the jury without notice to the defendant or counsel and in the absence of the defendant and counsel?
5. Was it denial of defendant's right to speedy trial under the Sixth Amendment when there was an eight month delay between the jury verdict and the imposition of sentence?
6. Was the sentence of ten to twenty years excessive or an abuse of the trial court's discretion?
The facts necessary for a determination of this matter on appeal are as follows. On the afternoon of 25 November 1972, Pauline Vigil, the sister of the defendant, and Anna Ramirez, defendant's wife, and the children of Pauline and Anna, numbering nine in all, spent the afternoon at defendant's house. About 5:00 in the evening they went to the home of defendant's mother. After Pauline, Anna and the children returned to defendant's house, defendant returned home. Someone came to the door to talk to him. This person and defendant then left. After dinner Pauline Vigil, Anna Ramirez and the children, went for a ride and visited another sister of defendant. As they returned to defendant's house, the defendant was standing outside. He walked over to the car and told Anna Ramirez 'don't get down.' Pauline asked 'What's the matter?' and the defendant wouldn't speak to her. Anna opened the door but did not get out of the car. Anna said 'Let's go, there's something wrong.' The defendant stood there for awhile and according to the testimony his appearance was 'funny.' He went inside the house as Pauline was backing out of the driveway. Defendant came back out of the house with a rifle and two shots were fired, one hitting the ground under or near the car and one breaking the glass in the car and hitting 10 year old Jayne Vigil. She died in the hospital a few hours later.
Defendant was arrested and charged with the murder of Jayne Vigil and assault with intent to commit murder upon Anna Ramirez, his wife.
After a trial to the jury, the jury returned a verdict of guilt as to the charge of assault with a deadly weapon, but were unable to agree upon a verdict as to the charge of murder. The court upon its own motion declared a mistrial as to the murder charge, but entered judgment on the verdict of guilty of assault with a deadly weapon and imposed a sentence of not less than ten nor more than twenty years in the Arizona State Prison.
On 17 January 1973, the court appointed two psychiatrists to examine the defendant. The doctors were directed to file written reports with the court. The defendant was ordered committed to the Arizona State Hospital for observation and examination. On 26 February 1973, the court made a
minute entry order releasing the defendant from the hospital and reinstating his bond. The doctors' reports were not filed as part of the record. On 8 March 1973 the court entered another minute entry order as follows:
The defendant having stipulated to this procedure did not protest the failure to hold a hearing, did not ask for one, and proceeded to trial without further complaint. He raised this issue for the first time on appeal.
A.R.S. § 13--1621, subsection E, provided at that time:
We have held that a hearing (meaning a judicial determination) is mandatory under A.R.S. § 13--1621; State v. Sanders, 110 Ariz. 503, 520 P.2d 1127 (1974). But we have also held that an oral hearing can be waived. State v. Meredith, 106 Ariz. 1, 469 P.2d 820 (1970). We believe the following is dispositive of this question:
'We think appellant's claim of error is technical and without merit.' State v. Cobb, 110 Ariz. 578, 521 P.2d 1124, 1125 (1974).
We find no error.
The defendant next contends that there was evidence of defendant's insanity and that since the State did nothing to rebut this evidence, the defendant was entitled to a directed verdict of acquittal. This court, in a case wherein the defendant presented the testimony of two doctors which created a substantial and reasonable doubt as to the defendant's sanity and in which there was no competent evidence to support the trial court's rejection of the insanity defense, reversed the matter stating:
'The law in this jurisdiction as to the test of sanity is well settled. Since there is a presumption of sanity, the defendant must introduce evidence which generates a doubt thereof. The burden then shifts to the State to prove sanity beyond a reasonable doubt. (citations omitted) * * *
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'The testimony of Dr. Winn and Dr. Almer created a substantial and reasonable doubt as to defendant's sanity on the In the instant case, even though the defendant entered a plea of not guilty by reason of insanity, the only testimony presented at trial concerning the possible insanity of the defendant was that of Pauline Vigil, the defendant's sister, who claimed that he was insane at the time he shot and killed her daughter. Pauline testified:
date the crime was committed. The positive testimony of these two doctors was not rebutted by Dr. Cleary, who refused to draw any conclusion as to defendant's sanity on August 3, 1969.' State v. Begay, 110 Ariz. 200, 200--01, 516 P.2d 573, 573--4 (1973).
'Q Did he appear to look normal to you?
'A No.
'Q Did he appear to know you or Anna at that time?
'A No. I said that before, he didn't--I don't think he recognized--like he was seeing something else or something.
'Q Did he appear to you to be legally insane?
'A Probably, because I told the policeman that, 'I think my brother went crazy'.'
Even if we assume that Pauline Vigil's testimony raised a substantial and reasonable doubt as to the defendant's sanity, and we do not believe it did, there was sufficient testimony by other witnesses to rebut Pauline Vigil's testimony that defendant was insane. The testimony viewed as a whole was sufficient from which the jury could find that the defendant was not insane at the time of the shooting. We find no error.
Defendant moved for a mistrial on the grounds that the prosecutor was guilty of misconduct in his alleged reference to matters not in evidence and to his comments that the defendant did not produce witnesses which he said he would produce. The defendant did not take the stand and testify himself.
Defendant's counsel, in his opening statement, stated:
'MR. POLLOCK: Ladies and gentlemen: It's difficult for the defendant to present material in this case because, of course, as you may have deduced earlier, the defendant does not know what occurred on that occasion, and we will present considerable testimony to that effect.
You will find, most interestingly, the people that believed the defendant did not know what occurred on that occasion; including not only his...
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State v. Tramble
...his presence so long as we can find no indication on the record that defendant was dissatisfied with his counsel. See State v. Ramirez, 111 Ariz. 498, 533 P.2d 665 (1975); State v. Cobb, 110 Ariz. 578, 521 P.2d 1124 While defendant has not here, or in the court below, specifically alleged h......
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State v. Ramirez
...in the Arizona State Prison. Defendant raises several questions on appeal which have been answered by the companion case of State v. Ramirez, Ariz., 533 P.2d 665 filed this day. We consider in this case only the following 1. Was a mistrial properly declared in the previous trial as to the c......
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