State v. Sanders

Decision Date13 May 2003
Docket NumberNo. 1CA-CR 00-0326.,1CA-CR 00-0326.
Citation205 Ariz. 208,68 P.3d 434
PartiesSTATE of Arizona, Appellee, v. John R. SANDERS, Appellant.
CourtArizona Court of Appeals

Terry Goddard, Attorney General by Randall M. Howe, Chief Counsel, Criminal Appeals Section and Kerri L. Cox, Assistant Attorney General, Phoenix, Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender by Spencer D. Heffel, Deputy Public Defender, Phoenix, Attorneys for Appellant.


SULT, Judge.

¶ 1 In this opinion we address the interplay between the notice requirement of the Sixth Amendment to the United States Constitution and that portion of Rule 13.5(b) of the Arizona Rules of Criminal Procedure governing amendments to an indictment or information. We hold that an amendment proposed mid-trial that changes the nature of the original charge deprives an accused of the type of notice and opportunity to prepare a defense contemplated by the Sixth Amendment and is therefore not permitted by Rule 13.5(b). Because defendant John R. Sanders was convicted of aggravated assault in violation of this principle, we reverse the judgment of conviction for that offense.


¶ 2 On November 14, 1999, about 12:45 a.m., Officer Vincent Bingaman of the Phoenix Police Department observed defendant run a red light at 43rd Avenue and Interstate 10. The officer followed defendant's vehicle to the trailer park where defendant and his wife resided. As defendant pulled into the parking lot, Bingaman shone a bright spotlight into defendant's car, then followed the car into the parking lot. Defendant stopped abruptly, got out of his car, and walked quickly toward Bingaman's patrol vehicle, waving his arms and shouting such comments as, "Is there a problem?" and "What did I do?"

¶ 3 Bingaman got out of his vehicle and asked defendant several times for his driver's license. Defendant refused to produce his license and persisted in demanding to know what he had done wrong. Because defendant would not cooperate, Bingaman informed him that he was under arrest and thereupon attempted to grab defendant's arm. Defendant spun quickly toward the officer, breaking his grip by hitting the officer's forearm with his own arm. A physical struggle ensued, with Bingaman attempting to arrest defendant and defendant resisting. Bingaman summoned his canine partner, "King," who jumped out of the police car and subdued defendant by mauling his leg. Backup officers arrived and defendant was successfully taken into custody.

¶ 4 At the preliminary hearing, Bingaman was the only witness. In connection with the assault charge, he testified on both direct and cross-examination to defendant's striking his arm and thereby dislodging his grip on defendant. The prosecutor asked no questions regarding whether the officer perceived any further threat from defendant, and when defense counsel attempted to inquire whether defendant threatened to hit the officer or used any verbal threats toward the officer, the prosecutor objected on hearsay grounds. The objection was sustained and thus no evidence was elicited regarding whether the officer apprehended any imminent physical injury from defendant.1 ¶ 5 Following the preliminary hearing, defendant was charged by information with resisting arrest and aggravated assault. The latter offense was specifically charged as follows:

JOHN R. SANDERS, on or about the 14th day of November, 1999, knowing, or having reason to know, that Vincent Bingaman was a peace officer, or a person summoned and directed by a peace officer engaged in the execution of any official duties, knowingly touched Vincent Bingaman, with the intent to injure, insult or provoke him, in violation of A.R.S. §§ 13-1203(A)(3), 13-1204(A)(5)(B), 13-701, 13-702 and 13-801.

¶ 6 The matter proceeded to a jury trial, and the aggravated assault charge that was read to the jury at the beginning of the case alleged that the assault was committed by a knowing touching with the intent to injure, insult, or provoke. The prosecutor, in her opening statement, described how defendant turned and hit the officer on the arm. She also alluded to the officer's uncertainty regarding his safety because it was late at night and he was the only officer on the scene, but this comment was made in connection with the prosecutor's explanation as to why the officer loosed his canine partner on defendant.

¶ 7 During her examination of the officer, the prosecutor did not ask him whether he feared defendant might physically harm him or why the officer would think that was a possibility. Neither did the prosecutor elicit any testimony to demonstrate that such a fear would have been reasonable. The officer did volunteer that he had employed the dog for assistance because defendant had hit him once and might hit him again.

¶ 8 Defense counsel's opening statement was specific in describing the alleged assault as occurring when defendant "knocked the officer's arm off Mr. Sanders' arm." And during the officer's testimony at trial, defense counsel confirmed with the officer exactly what circumstance the officer considered to have constituted the charged assault:

Q. You testified on direct that the only time Mr. Sanders touched you before the dog attacked him was when his forearm knocked your forearm. Is that the assault?
A. When he struck my arm breaking the grip that I had on his left arm, that's the assault.

Defense counsel conducted no cross-examination into whether the officer apprehended imminent physical injury from defendant, what the source of such apprehension might be, or whether it was reasonable under the circumstances.

¶ 9 At the conclusion of its case-in-chief, the state moved pursuant to Rule 13.5(b) to amend the assault charge to allege a violation of Arizona Revised Statutes ("A.R.S.") § 13-1203(A)(2) (2001), proscribing an assault committed by intentionally placing another in reasonable apprehension of imminent physical injury. This charge supplanted the original allegation of an assault pursuant to A.R.S. § 13-1203(A)(3) committed by a knowing touching with intent to injure, insult, or provoke. The prosecutor did not explain why she wanted to abandon the original allegation but simply asserted that the amendment was necessary to conform to the evidence that had been presented.

¶ 10 Defendant's objection to the proposed amendment was overruled, and the trial court ordered a change in the assault charge from a "knowing touching" allegation to a "reasonable apprehension" allegation. The information thereupon read:

JOHN R. SANDERS, on or about the 14th day of November, 1999, knowing, or having reason to know, that Vincent Bingaman was a peace officer, or a person summoned and directed by a peace officer engaged in the execution of any official duties, intentionally placed Vincent Bingaman in reasonable apprehension of imminent physical injury, in violation of A.R.S. §§ 13-1203(A)(2), 13-1204(A)(5)(B), 13-701, 13-702 and 13-801.

¶ 11 The defense then put on its case with defendant and his wife testifying. Defendant admitted "grabbing" the officer but asserted that it was only to maintain his balance. He insisted that he never threatened in any way to hit the officer. The bulk of his testimony related to his fear of the dog as his reason and justification for resisting being handcuffed.

¶ 12 At an ensuing conference to settle jury instructions, the trial court permitted defense counsel to renew her objection to the amendment and state her reasons. She began by asserting that because of the amendment, she was unprepared to argue jury instructions. She stated, "approximately an hour ago we had an offense of a touching of the officer. Now we don't have that and we have a reasonable apprehension of the officer.... The change in this complaint is changing my whole theory of the defense. My defense was self-defense. How can I have a self-defense argument to an officer's reasonable apprehension of physical injury?" She expressed her fear of rendering ineffective assistance to her client and concluded: "I'm having a difficult time coming up with what my closing is going to be, let alone jury instructions, because now we have changed the charge."

¶ 13 The prosecutor responded that the officer had testified that he was in fear, and that the amendment was not that much of a surprise because "it's something that has been a part of the facts from the beginning." She added: "It's not a completely separate charge, basically changing one of the elements."

¶ 14 The trial court again overruled defense counsel's objections, explaining:

And I'm just not persuaded that an objective view of the evidence in this case by an attorney would leave the attorney with the impression that an officer in this situation who's testified that he was holding onto this guy's arms and couldn't control him because of the weight disparity—and there is obviously a very big weight disparity, your client clearly outweighs the officer and is a much bigger man—that this officer wasn't in a reasonable apprehension. If this guy chose, he could beat the hell out of him. And that is a question of fact for the jury.
So, I think under the totality of the circumstances, at night, in this lot, with all the things the officer was testifying about, that I would be a little reluctant to accept as an objective matter that an attorney wasn't on notice that this could be one of the bases of the State's argument.

¶ 15 Although defense counsel had expressed her disappointment at being deprived of a self-defense theory, she nevertheless requested self-defense instructions. The trial court refused, however, and counsel then argued the case to the jury. Regarding the assault charge, defense counsel focused on the officer's fear of injury, asserting that it was unreasonable. The jury was not persuaded and convicted defendant of the assault charge as well as the resisting arrest charge. The trial court...

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