State v. Roberts
| Citation | 545 P.2d 83,25 Ariz.App. 572 |
| Decision Date | 20 January 1976 |
| Docket Number | CA-CR,No. 1,1 |
| Parties | STATE of Arizona, Appellee, v. Debra Lynn ROBERTS, Appellant. 1154. |
| Court | Court of Appeals of Arizona |
This is an appeal by defendant Debra Lynn Roberts from a judgment of conviction for the offense of possession of narcotic drugs, a felony. The sole issue is the sufficiency and legality of the verdict which was rendered by the jury. More specifically, the question is whether the trial court prejudicially erred in recalling a jury to have it reconsider its verdict of guilty returned on an erroneous form of verdict.
Appellant was charged with possession of a narcotic drug, to-wit: heroin, in violation of A.R.S. § 36--1002. The order holding defendant to answer, filed after her preliminary hearing, found probable cause to believe the appellant had possessed the narcotic drug as alleged, and the information which was thereafter filed charged appellant with said same crime of possession of a narcotic drug, to-wit: heroin.
Appellant was subsequently tried by a jury. Due to the absence of the defendant at the time the verdict was returned, and the late hour, the verdict was sealed and the jury was polled to determine that it was their true and correct verdict. The jury was then excused from further service in the case.
The next morning, January 23, 1975, the verdict was opened, read and recorded by the Clerk. Appellant had been found guilty and the verdict was on the form which had been submitted to the jury at the time the court instructed them. The court then set the time for sentencing, determined that appellant should remain free on her own recognizance, and requested to know whether there were any other matters to be placed of record. After being informed that there were no other matters to attend to, court was adjourned.
The following day, January 24th, the record shows that counsel were called into chambers by the trial judge to discuss an error which had been discovered in the form of verdict returned by the jury. The following colloquy in chambers sets out the problem:
'(The Court) Earlier this week, this matter went to trial, was submitted to the jury for rendition of verdicts. Everything in the trial, from the charge to the instructions, talked about possession of narcotic drug, to wit, heroin. What they did not--I instructed my Clerk to type forms of verdict and mistakenly those forms of verdict are guilty and not guilty forms, but each of them say 'possession of dangerous drugs, to-wit, heroin.'
Thereafter the jurors were recalled and told that a clerical error was discovered on the forms submitted. The error being that the word 'dangerous' was substituted for the word 'narcotic.' New corrected forms of verdict were submitted to them which they deliberated upon a short period of time and thereafter returned the new guilty verdict. At this point we might add that the trial court could well have corrected the error under Rule 24.4, Rules of Criminal Procedure, 17 A.R.S. but, no doubt, feeling that she was acting through an abundance of caution undertook to recall the jury and resubmit the matter to them. The appellant argues that a jury once discharged cannot be recalled as in this case days later, to reconsider the case and to correct an error in their verdict. With this we agree, however, under the circumstances of this case which we will hereafter discuss, we believe the error is harmless as contemplated by Art. 6, § 27 of the Arizona Constitution. See also State v. Mendiola, 23 Ariz.App. 251, 532 P.2d 193 (1975), adopted as opinion by the Supreme Court, 112 Ariz. 165, 540 P.2d 131. The thrust of appellant's contention appears to be that the first verdict is invalid because the appellant was found guilty of a crime not charged and that the second verdict is invalid because the jury could not be recalled. The obvious conclusion to be drawn, therefore, according to appellant, is that her conviction should be reversed. For the reasons which follow, we find the verdict sufficient and affirm the judgment and sentence.
To determine whether a verdict is sufficient we not only look to the information but also to the trial itself and the particular issues involved. Hampston v. State, 34 Ariz. 372, 271 P. 872 (1928); Holder v. State, 31 Ariz. 357, 369, 253 P. 629 (1927). In order to be sufficient, a verdict must respond substantially to all the material issues raised in the case. Hampston v. State, supra. As stated by the Court in United States v. Nooks, 5 Cir., 446 F.2d 1283, 1290, cert. den. Sub nom Hughes v. United States, 404 U.S. 945, 92 S.Ct. 299, 30 L.Ed.2d 261:
'The verdict of the jury should be construed with reference to the indictment, the court's charge, and the entire record to arrive at the intention of the jury, and all fair intendments should be made to sustain the verdict.'
With these principles in mind, we note that at every stage of the proceeding below appellant was on notice that she was to be tried for one offense; possession of narcotic drugs, to-wit: heroin. From the commencement of the trial, to the instructions given to the jury, the only issue involved was possession of heroin. At the end of the trial the jury was instructed that the State had charged the defendant with the crime of possession of a narcotic drug, to-wit, heroin. Immediately prior to excusing the jury for its deliberations the court concluded:
'You will be given two forms of verdict on which to indicate your decision. You will read them when you get to the jury room. One of the verdict says 'not guilty' and one form of verdict says 'guilty."
This is not a case in which the trial court either allowed amendment of the information at the end of the trial to charge a different crime or instructed on a crime which was not a lesser included offense. State v. Postell, 20 Ariz.App. 119, 510 P.2d 749 (1973); Peterson v. Jacobson, 2 Ariz.App. 593, 411 P.2d 31 (1966). Such actions may very well violate a defendant's fundamental constitutional right to know the nature and cause of the accusation. Peterson v. Jacobson, supra, at 595, 411 P.2d 31. This is a case which involved a single, well-defined set of facts; one count in the charging document; instructions which dealt only with the crime charged; facts which supported the conviction; and, finally, a clerical error and the failure of counsel to object to the erroneous form of the verdicts. In such a case, the verdict should be affirmed. Cf, State v. Stielow, 14 Ariz.App. 445, 484 P.2d 214 (1971); Arizona Rules of Criminal Procedure, Rule 21.3.
The verdict returned by the jury was on the only 'guilty' verdict form available to them. It did specify that the jury had found appellant guilty of the crime of possessing heroin. It is unreasonable to attribute to the jury in this case an intention to return a verdict finding appellant guilty of possessing 'dangerous' drugs. The verdict was sufficient as worded, because the only reasonable conclusion which could be drawn from it was that the appellant was guilty of possessing heroin. Cf, Holder v. State, supra, 31 Ariz. at 367, 253 P. 629. We think the following observation by the court in Holder is equally applicable to the facts of this case:
'We think it would be hypertechnical to say that, when a jury finds a defendant 'guilty' and adds words describing unmistakably the crime charged by the information, the verdict is void, even though the words of description are not as apt as a careful lawyer might use. In the case at bar, we cannot hold the jury did not find the appellant guilty of the precise offense of which he was accused, except by disregarding common sense, logic and the plain facts, and resorting to verbal quibbling and technical rules of construction worthy of that character in Hudibras 'who could a hair divide, between the south and southwest side." 31 Ariz. at 369, 253 P. at 633.
In this case, the facts all dealt with possession of heroin. There was no arguable issue presented...
To continue reading
Request your trial
-
Shaffer v. Allt
... ... John SHAFFER, Appellant, ... ARIZONA STATE LIQUOR BOARD, and the City of Yuma, a Municipal Corporation, Appellees ... Nos. 1 CA-CIV 2716, 1 CA-CIV 2777 ... Court of Appeals of Arizona, ... ...
-
State v. Gonzales
...Appellant's right to a fair trial nor affected the foundation of his case regarding the prior theft conviction"); State v. Roberts, 25 Ariz. App. 572, 574 (1976) (holding that verdict form's misidentification of heroin as "dangerous drug" instead of "narcotic drug" was clerical error that d......