State v. Ramirez
| Decision Date | 31 March 1975 |
| Docket Number | No. 2960,2960 |
| Citation | 111 Ariz. 504,533 P.2d 671 |
| 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 judgment of guilt to the crime of murder in the second degree, A.R.S. §§ 13--451, 13--452 and 13--453, and a sentence thereon of not less than ten nor more than twenty years 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 questions:
1. Was a mistrial properly declared in the previous trial as to the charge of murder?
2. Does the doctrine of collateral estoppel or double jeopardy apply?
3. Does the double punishment statute apply?
The facts leading to the arrest and trial of the defendant have been set forth in the companion case. After the court declared a mistrial as to the murder charge, the defendant was released on bond. Later the defendant agreed to submit the matter to the court on the basis of the evidence adduced at the first trial. After informing the defendant of some of the rights he was giving up the following transpired:
I have to read the transcript and decide whether or not you are, and you are not admitting you are guilty.
Did you want to submit it on the transcript and the other evidence which was admitted at the first trial?
'MR. RAMIREZ: Yes.'
On the basis of the reporter's transcript of the previous trial, the court found the defendant guilty of second degree murder and sentenced him to serve ten to twenty years in the Arizona State Prison, said sentence to run concurrently with the sentence previously imposed for assault with a deadly weapon.
The defendant contends that under the facts in this case the trial court did not exercise proper discretion in declaring a mistrial. We disagree. After the jury retired to deliberate at 3:30 p.m., at 11:40 p.m. the following transpired:
'THE COURT: Let the record show the presence of the jury, waiver of roll call, presence of the defendant and counsel.
Mr. McCormick, I take it you are still the foreman?
'MR. McCORMICK: Yes, sir.
'THE COURT: The way I calculate it, the jury's had about six and a half hours to deliberate, excluding dinner hour. We have not reported that you have arrived at a verdict in either case, and so would I be correct in assuming, sir, that you have not arrived at a verdict?
'MR. McCORMICK: We have arrived at a verdict in one case, sir; and the other case, no.
'THE COURT: Well, the case of number 74108 is the indictment under which the defendant is accused of assault with intent to commit murder, a felony, upon his wife, Anna. Have you arrived at a verdict in that case?
'MR. McCORMICK: Yes, sir.
'THE COURT: Now, in the case in which you have not arrived at a verdict, the charge being murder, would you tell me, sir, not how the jury stands for or against, guilty or not guilty, but just what the numbers are, if you know what that number is? By that I mean, is it six to six, five to seven or--
'MR. McCORMICK: Nine to three, sir.
'MR. McCORMICK: No, sir.
'THE COURT: That's your opinion?
'MR. McCORMICK: Yes, sir.
'THE COURT: Does anybocy on the jury disagree with the foreman? Does anybody believe, in other words, that it would serve a useful purpose for the jury to further deliberate on that case?
I take it, then, you are all in accord in at least one thing, and that is that you agree to disagree; is that the collective judgment of you people?'
Nevertheless, the court made another attempt and sent the jurors back for further deliberation. At 12:20 a.m. the jury returned:
'THE COURT: Let the record show the presence of the jury, waiver of roll call, presence of the defendant and counsel.
Mr. Foreman, in cause number 74699, the State against Manuel Robert Ramirez, has the jury arrived at a verdict?
'MR. McCORMICK: CR--74699?
'THE COURT: Yes.
'MR. McCORMICK: Yes, sir, we have.
'THE COURT: Please hand it to the bailiff.
The clerk will read and enter the verdict.
'THE CLERK: 'In the Superior Court of Maricopa County, State of Arizona.
'State of Arizona versus Manuel Robert Ramirez, defendant.
'We, the jury, duly empaneled and sworn in the above-entitled action, upon our oaths, do find the defendant, Manuel Robert Ramirez, guilty of assault with a deadly weapon, a felony.
'Paul D. McCormick, foreman.'
Is this your verdict, so say you one and all?
The clerk will enter the verdict in the record.
Now, in cause number 74108, I take it you have not arrived at a verdict?
'MR. McCORMICK: No, sir.
'THE COURT: Is that correct?
'MR. McCORMICK: Yes, sir.'
The judge further questioned the jury and two jurors indicated they would like to continue deliberation, but it appeared that the jury was still deadlocked at 9--3 and the court on its own motion but without objection by either party declared a mistrial, the court stating:
We have reviewed the transcript and taking into account all the circumstances it appears that there would have been little hope that the jury could have agreed on a verdict. We find no abuse of the trial court's discretion in the finding that the jury was unable to agree in declaring a mistrial. As the 5th Circuit Court has stated:
United States v. Moon, 491 F.2d 1047, 1049 (5th Cir. 1974).
We find no error.
The law is clear that if the mistrial is properly ordered there is no double jeopardy when the defendant is retried. United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971).
State v. Moore, 108 Ariz. 532, 535, 502 P.2d 1351, 1354 (1972).
In the instant case we...
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State v. Ware
...by a defendant removes any barrier to re-prosecution. See State v. Madrid, 113 Ariz. 290, 552 P.2d 451 (1976); State v. Ramirez,111 Ariz. 504, 533 P.2d 671 (1975); State v. Wright, 112 Ariz. 446, 543 P.2d 434 (1975). We find no intentional misconduct which was motivated by a desire to haras......
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State v. Reeves
...its discretion in declaring a mistrial. See State v. Gallardo, 225 Ariz. 560, 564 ¶ 6, 242 P.3d 159, 163 (2010); State v. Ramirez, 111 Ariz. 504, 506, 533 P.2d 671, 673 (1975). Although the Double Jeopardy Clause of the United States Constitution protects a defendant's “valued right to have......
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State v. Ferguson
...158 (1972); State v. Howes, 109 Ariz. 255, 508 P.2d 331 (1973); State v. Cassius, 110 Ariz. 485, 520 P.2d 1109 (1974); State v. Ramirez, 111 Ariz. 504, 533 P.2d 671 (1975); State v. Helmick, 112 Ariz. 166, 540 P.2d 638 (1975). Under this test, the court must eliminate the evidence supportin......
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State v. Madrid
...The state argues that if a mistrial was properly ordered there is no double jeopardy when the defendant is retried. State v. Ramirez, 111 Ariz. 504, 533 P.2d 671 (1975); State v. Moore, 108 Ariz. 532, 502 P.2d 1351 (1972). The real point is that the appellants asked for the mistrial. They e......