State v. Rice

• Decision Date: 03 May 1977
• Docket Number: No. 2,CA-CR,2
• Citation: 568 P.2d 1080,116 Ariz. 182
• Parties: The STATE of Arizona, Appellee, v. James RICE, Appellant. 949.
• Court: Arizona Court of Appeals

Page 1080

568 P.2d 1080

116 Ariz. 182

The STATE of Arizona, Appellee, v. James RICE, Appellant.

No. 2 CA-CR 949.

Court of Appeals of Arizona, Division 2.

May 3, 1977.

Rehearing Denied June 29, 1977.

Review Denied Sept. 8, 1977.

Bruce E. Babbitt, Atty. Gen. by Russell Piccoli, Asst. Atty. Gen., Tucson, for appellee

Stanfield, McCarville, Coxon, Cole & Fitzgibbons by A. Thomas Cole, Casa Grande, for appellant.

OPINION

HOWARD, Chief Judge.

Appellant was tried in absentia before a jury and convicted of molesting Betty Doe, a child under the age of 15 years, in violation of A.R.S. § 13-653; molesting Jane Doe, also a child under the age of 15 years, in violation A.R.S. § 13-653; and raping Jane Doe in violation of A.R.S. § 13-611, as amended. He was sentenced in absentia to concurrent terms ranging from five to eighteen years in the Arizona State Prison.

At the preliminary hearing on the above charges, testimony revealed that appellant had raped Jane on eight previous occasions. This led to a grand jury indictment in Pinal County Cause No. 6910. These charges were dismissed without prejudice upon his conviction in the instant case.

Appellant originally pled not guilty but subsequently, pursuant to a plea agreement, changed his plea to guilty of molesting Jane Doe, with the understanding that the remaining counts were to be dismissed. At the time of sentencing, however, when it became apparent that he was not going to be given probation, appellant asserted that the county attorney had violated the plea agreement by recommending imprisonment and his motion to withdraw his guilty plea was granted.

Briefly, appellant was the manager of the Copper Bell Motel, in Winkelman, Arizona. Mrs. Doe moved into the area with her children Betty, 12 years of age and Jane, nine years of age, in the summer of 1975 and rented a mobile home at the Copper Bell Motel. It is during this period that the molestations and rapes occurred.

Appellant contends that it was error to try and sentence him in absentia. At his arraignment on December 1, 1975, the trial was set for March 9, 1976. At that time he was released on his own recognizance and the court clearly and emphatically pointed out to him that if he failed to appear for trial he could be tried and convicted in absentia. After appellant withdrew his plea of guilty on May 24, 1976, the court set his trial for June 16, 1976. Two days later, on May 26th, appellant's counsel appeared and advised the court that he had filed an affidavit of bias and prejudice against the judge to whom the case had been assigned for trial. The matter was then re-set for July 15, 1976. Appellant failed to appear for his trial, failed to appear for his sentencing and as far as this court knows, has never returned to this jurisdiction.

Before the trial started, the trial court inquired of defense counsel the reason for appellant's absence. Counsel stated he did not know where appellant was and that he had last spoken with appellant on June 16th, the trial date that was set when the plea was withdrawn. About a month before the trial, when it appeared that appellant and his wife had left the jurisdiction, appellant's attorney went to the court for the purpose of seeking a bench warrant but it was decided that it could not be issued because at that point appellant had not failed to appear for trial. On June 16, 1976, appellant's counsel talked with his client and his wife over the telephone. Appellant had contact with his attorney on occasions subsequent to May 24, 1976 and prior to June 16, 1976. However, when asked specifically by the trial court whether he remembered telling appellant of the new trial date, appellant's counsel was equivocal. At one point he stated that he "would suspect" that at one time or another he probably did tell him but then stated that he did not recall and could not avow to the court one way or another.

Rule 9.1, Rules of Criminal Procedure, provides:

"Except as otherwise provided in these rules, a defendant may waive his right to be present at any proceeding by voluntarily absenting himself from it. The court may infer that an absence is voluntary if the defendant had personal notice of the time of the proceeding, his right to be present at it, and a warning that the proceeding would go forward in his absence should he fail to appear."

The trial court, by proceeding with the trial, impliedly found that appellant's absence was voluntary. The foregoing rule places a burden upon the state to show that a defendant has waived his right to be present. The trial judge could well have believed that it was highly unlikely, if not incredible, that appellant's counsel did not inform him of the new trial date especially in view of the fact that he spoke with his client on June 16, 1976, the date set for trial at the May 24th hearing.

Since there was a prima facie showing of a voluntary waiver of the right to be present, the burden was on appellant to go forward with the evidence and show that his absence was, in fact, involuntary. He did not do so and the court did not err in trying and sentencing him in absentia. Furthermore, it was the appellant's duty under the conditions of his release to maintain contact with the court and/or his attorney as to the trial date and any changes in that date.

The next issue presented by appellant arises out of his efforts to secure probation after the guilty plea which was subsequently withdrawn. Appellant circulated a petition among his friends in which the signers asked the court to be lenient with him. Certain friends were also asked to write letters of recommendation which the probation officer had requested. Before asking persons to sign the petition or write the letters appellant told them that he had, in fact, molested Jane Doe. He was advised to do this in order to "see what their reaction would be". The state called as a witness Mrs. Jeanette Smith who was listed by appellant as a witness he intended to call at trial. The state elicited from her the fact that in securing the letter, the nature of which was not disclosed to the jury, and perhaps in having her sign his petition, appellant admitted that he had molested Jane Doe. She also testified that the petition asked the trial court to be lenient and, in an unresponsive answer to a question posed by the prosecutor, testified that the petition stated that he had pled guilty. Defense counsel objected to this testimony and moved for a mistrial. His objection was overruled and the motion for mistrial was denied.

In the case of State v. Wright, 103 Ariz. 52, 436 P.2d 601 (1968), the court held it to be fundamental error to allow the state to introduce into evidence the fact that the defendant had entered a guilty plea when the court had allowed the defendant to withdraw that plea. Of course, fundamental error can be harmless in some cases if the reviewing court is satisfied beyond a reasonable doubt that the error did not contribute to the defendant's conviction. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Mrs. Smith not only testified that the petition stated he had pled guilty but that the petition sought leniency. The prosecutor did not refer to the guilty plea in his argument to the jury. He did, however, tell the jury that the petition was important in their consideration of appellant's guilt and that they should keep it in mind during their deliberations. Such argument could only serve to draw the jurors' attention to the guilty plea. To compound the error, the jury was allowed in its deliberations to look at the petition even though it had not been admitted into evidence. Contrary to Mrs. Smith's testimony, the petition did not, in so many words, say that appellant had pled guilty, but the only deduction which could be drawn from its preamble was that it was to be used in connection with the guilty plea. The petition also indicated that appellant had sexual problems which involved child molestation and related events, but that a doctor was of the...