State v. Ritchey

• Decision Date: 11 November 1971
• Docket Number: No. 1964,1964
• Citation: 107 Ariz. 552,490 P.2d 558
• Parties: STATE of Arizona, Appellee, v. Irvin Paul RITCHEY, Appellant.
• Court: Arizona Supreme Court

Page 558

490 P.2d 558

107 Ariz. 552

STATE of Arizona, Appellee, v. Irvin Paul RITCHEY, Appellant.

No. 1964.

Supreme Court of Arizona, In Division.

Nov. 11, 1971.

Gary K. Nelson, Atty. Gen. by William P. Dixon and Jerry C. Schmidt, Asst. Attys. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender by Anne Kappes, Deputy Public Defender, Phoenix, for appellant.

HAYS, Vice Chief Justice.

The defendant, Irvin Paul Pitchey, was charged with two counts of child molesting and one count of lewd and lascivious act. The matter was tried to the court without a jury on stipulation of counsel. The court made a finding of not guilty on the count of lewd and lascivious act and guilty on the two counts of child molesting, and imposed a sentence of two to five years on each count to run concurrently.

The alleged victims were two girls, ages four and six. The defendant was a friend of the children's parents and he often came to their home on social visits. The testimony indicates that he was fond of the children.

After ruling that the elder of the children, then age seven, was competent to testify, the court heard testimony from her that the defendant took her and her sister to a place near the airport where they could watch the airplanes. She testified that while they were there, '(h)e done nasty to me.'

A short time later the defendant brought the children home. After he left the children's home, the children were asked where they had been by their mother and grandmother. The younger of the children stated, 'Ritchey done nasty to us, Mommy.' Both children stated that Ritchey had pulled down the pants of the younger child and had moved her up and down on his body. They stated that Ritchey had unzipped his pants and had taken his 'thing' out. The elder child also stated that the defendant had pulled her pants down and played with her private parts. This testimony was received from the mother and the grandmother of the children who were relating what the children had told them. The defendant raises several contentions of error in his appeal.

Defendant's initial argument raises the question of the validity of a waiver of trial by jury when made by counsel for defendant in chambers and out of the presence of the defendant. The record of the proceedings below shows that the waiver was accomplished by stipulation between counsel for the defense and counsel for the state. Nowhere in the record is there any indication that the defendant participated in the decision to waive his right to a jury trial, or that he, in fact, was aware that he had such a right.

The right of trial by jury is among the fundamental rights bestowed by the Sixth and Fourteenth Amendments of the United States Constitution. It is a right, however, which may be waived by a defendant if he so desires. Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930). In the Patton case, the Supreme Court designated guidelines by which to determine whether a waiver has been validly made. The Court stated:

'* * * before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, In addition to the express and intelligent consent of the defendant.' (emphasis added.)

This court has ruled that a knowing and intelligent waiver of trial by jury may be made through counsel in the presence of the accused and need not be made by the defendant personally. State v. Jelks, 105 Ariz. 175, 461 P.2d 473 (1969). It was there stated that if a defendant permits his attorney, In his presence and without objection on his part, to waive his right to trial by jury, '(he) must be held to have knowingly acquiesced in that decision.' State v. Jelks, Supra, at 178, 461 P.2d at 476. It was further stated that:

'(I)n view of the importance of the right of a trial by jury as a fundamental right, it is doubtful that a written waiver signed only by the attorney Or an oral waiver by counsel out of the defendant's presence would be sufficient waiver without something of record to show authorization or ratification by the defendant.' at p. 178, 461 P.2d at p. 476. (emphasis added.)

We adopt the views expressed in the above language as the law of this case and state that because the record fails to show whether, in fact, the defendant did authorize or ratify the action of his attorney in waiving his right to jury trial, this matter must be remanded for a hearing by the trial court to determine whether the waiver was, in fact, knowingly and intelligently made. ^* The trial court must make findings of fact and refer the matter back to this court.

We specifically recommend that the waiver of such fundamental constitutional rights as the right to jury trial be accomplished in the defendant's presence, and, if possible, with his express consent.

We reject the argument of the state that the defendant evidenced his consent to a trial without a jury by sitting through a bench trial without objecting to the absence of a jury. It cannot be presumed that the defendant was aware of his right to make such an objection. See People v. Turner, 80 Ill.App.2d 146, 225 N.E.2d 65 (1967). The burden of coming forth and asserting one's own basic constitutional rights cannot be placed upon persons who may be reluctant to take such affirmative action before the court. By this position we do not intend to inter that counsel cannot himself make the decisions of trial strategy which often require the waiver of rights or the abandoning of positions. This rule is meant to apply to basic Constitutional rights heretofore delineated by the United States Supreme Court.

We turn to defendant's additional contentions. He claims that he was denied his Sixth Amendment right of confrontation when the court examined the prosecuting witness as to her competency to testify in his absence. This examination took place in chambers with attorneys for defendant and for the state present. We do not find the same compelling need for a defendant to be present at such a proceeding as we find when a personal constitutional right, such as trial by jury, is at stake. Here, a defendant's attorney can adequately exercise the defendant's rights. The determination of the competency of a witness to testify is a matter of law to which legal counsel is specially qualified to address himself. The defendant cannot show that he was prejudiced by the procedure employed herein.

The defendant raised objection at the trial to the admissibility of the out-of-court statements of the elder child to her mother and grandmother concerning the alleged molesting of the children. The trial court admitted them as an exception to the hearsay rule as spontaneous or excited utterances.

The facts germane to deciding whether, in fact, the statements qualify under the exception are as follows: At about 7:00 P.M., the defendant and the children returned to the children's home. The defendant talked with the parents and grandmother of the children for about ten minutes and then left to buy some beer. He returned with the beer in about ten or fifteen minutes and left the house a few minutes later. It was at this time that the children's mother first asked them where they had been. The children then related the statements which are the subject of the defendant's objections.

The mother of the children testified that the children liked being with the defendant. He would visit the house at least two or three times a week to play with them and twice a month or so the children would spend the night with the defendant and his wife.

When asked to describe the demeanor and appearance of the girls at the time they returned with the defendant, the mother stated that the face of the elder child was streaker as though she might have been crying. She also stated that where the children were usually rowdy and playful when they arrived home, on this evening they were very quiet. The children would always place themselves near the defendant, sometimes sitting on his lap to talk to him, but on this night they stayed to themselves in another room of the house. The mother stated she had never seen the children act in this manner when the defendant was in the house. She also stated that the defendant himself, though still friendly, was somewhat withdrawn.

The children's grandmother likewise testified that the children did not seem as happy as usual and were not playing with the defendant or having anything to do with him. When asked to take their toys and play, they stated that they didn't want the toys because the defendant had given the toys to them.

This court, in reviewing fact situations involving the excited or spontaneous utterance exception has followed the test laid down by Wigmore. The three requisites that compose this test are these:

1. There must be a startling event.

2. The words spoken must be spoken soon after the event so as not to give the person speaking the words...