State v. Schmid

• Citation: 107 Ariz. 191,484 P.2d 187
• Decision Date: 28 April 1971
• Docket Number: No. 1837,1837
• Parties: The STATE of Arizona, Appellee, v. Charles SCHMID, Appellant.
• Court: Supreme Court of Arizona

Page 187

484 P.2d 187

107 Ariz. 191

The STATE of Arizona, Appellee, v. Charles SCHMID, Appellant.

No. 1837.

Supreme Court of Arizona, In Banc.

April 28, 1971.

Rehearing Denied May 25, 1971.

Gary K. Nelson, Atty. Gen., by Carl Waag, former Asst. Atty. Gen., Andrew W. Bettwy, Asst. Atty. Gen., Phoenix, for appellee.

Lesher & Scruggs, by D. Thompson Slutes, Norval W. Jasper, Tucson, for appellant.

UDALL, Justice:

This is an appeal from a judgment of guilt and imposition of sentence following defendant's entry of a plea of guilty to second-degree murder.

The facts of this case disclose that defendant was informed against on December 15, 1965, being charged with the May 31, 1964 murder of one Norma Alleen Rowe. After the jury had been empanelled and two prosecution witnesses, including defendant's accomplice--Mary French, had testified for the state, defendant entered a plea of guilty to a reduced charge of second-degree murder. The court, having ascertained that this plea was voluntarily, intelligently and freely made, thereupon proceeded to sentence defendant to imprisonment for a term of 'not less than fifty (50) years, and not more than life.'

On appeal, defendant has advanced five arguments in support of his contention that the trial court committed reversible error:

(1) 'Errors of the trial judge in failing to grant proper motions for postponement or change of venue.

(2) 'Errors of the trial judge in not excluding jurors who had expressed a prior opinion about the defendant's guilt and who knew of the relationship of the prosecution's witnesses (Fritz and Saunders) to the defendant,' or of any aspect of this case.

(3) 'Error of the trial judge in permitting the introduction into evidence of the prior crime by the defendant.'

(4) 'Error of the trial judge in systematically excluding from the jury panel all persons who stated they could not assess the death penalty in a proper case.

(5) 'Coercion of the defendant by his own attorneys who advised him that he would in all probability be found guilty of first degree murder and that they were unwilling to conduct any sort of vigorous defense in his behalf.'

We have reviewed the record and, having considered the arguments advanced by defendant, find such to be wholly without merit. Defendant was entitled to, and did receive, a fair and impartial trial.

(1) 'ERRORS OF THE TRIAL JUDGE IN FAILING TO GRANT PROPER MOTIONS FOR POSTPONEMENT OR CHANGE OF VENUE.'

A change of venue or a continuance are not granted as a matter of right but are, rather, matters addressed to the sound discretion of the trial judge. We have often held that a trial judge's ruling on a motion for a change of venue or a continuance will not be disturbed on appeal unless a clear abuse of discretion appears and is shown to be prejudicial to defendant's cause. State v. Narten, 99 Ariz. 116, 407 P.2d 81 (1965); cert. denied 384 U.S. 1008, 86 S.Ct. 1985, 16 L.Ed.2d 1021 (1966); State v. Woolery, 93 Ariz. 76, 378 P.2d 751 (1963); State v. McGee, 91 Ariz. 101, 370 P.2d 261 (1962); cert. denied 371 U.S. 844, 83 S.Ct. 75, 9 L.Ed.2d 79 (1962). The trial judge is granted this discretion because he is the only unbiased party to an action who is in a position to observe the entire proceeding with an unjaundiced eye. He can observe the prospective jurors and witnesses, their testimony, demeanor and behavior, as well as the attitudes and crosscurrents of the community in determining whether any actual or supposed prejudice exists--such as would necessitate a change of venue or continuance. For this reason rulings on such motions are left to the sound discretion of the trial judge. We find no abuse of discretion here.

(2) 'ERRORS OF THE TRIAL JUDGE IN NOT EXCLUDING JURORS WHO HAD EXPRESSED A PRIOR OPINION ABOUT THE DEFENDANT'S GUILT AND WHO KNEW OF THE RELATIONSHIP OF THE PROSECUTION'S WITNESSES (FRITZ and SAUNDERS) TO THE DEFENDANT' OR OF ANY ASPECT OF THE CASE.

The fact that all of the empanelled jurors had some degree of knowledge of the facts of this case does not, in and of itself, demonstrate such prejudice as would necessitate a change of venue or continuance; although it is an important factor to be considered by the trial judge in ruling on such motion. Defendant, by his own judicial admission, admits there was no place within the United States where he could have been tried by a jury totally ignorant of some aspect of the case. His motion for continuance stated 'that National news coverage has been extensive, including But not limited to Time Magazine, Newsweek Magazine, Washington News, The Evening Star, The Oregon Journal, And others too numerous to mention.' (Emphasis added)

The failure of the trial judge to exclude for cause each prospective juror who admitted possessing some degree of knowledge of this case was not error: Rule 220, Rules of Criminal Procedure, 17 A.R.S., expressly provides that the fact that a person, called as a juror, has formed an opinion or impression based upon rumor, or upon news reports, about the truth of which he has expressed no opinion should not disqualify him to serve as a juror in such action, if he upon oath states that he believes he can fairly and impartially render a verdict in accordance with the law and the evidence, and the court is satisfied with the truth of such statement.

In repudiating an argument not too dissimilar from that at bar, the United States Supreme Court stated that mere possession of some knowledge of a case is insufficient, in and of itself, to require that a juror be excused for cause:

'In these days of newspaper enterprise and universal education, Every case of public interest is almost, as a matter of necessity, Brought to the attention of all the intelligent people in the vicinity, and scarcely any one can be found among those best fitted for jurors who has not read or heard of it, and who has not some impression or some opinion in respect to its merits. It is clear, therefore, that upon the trial of the issue of fact raised by a challenge for such cause the court will practically be called upon to determine whether the nature and strength of the opinion formed are such as in law necessarily to raise the presumption of partiality. The question thus presented is one of mixed law and fact, and to be tried, as far as the facts are concerned, like any other issue of that character, upon the evidence. The finding of the trial court upon that issue ought not to be set aside by a reviewing court, unless the error is manifest. No less stringent rules should be applied by the reviewing court in such a case than those which govern in the consideration of motions for new trial because the verdict is against the evidence. It must be made clearly to appear that upon the evidence the court ought to have found the juror had formed such an opinion that he could not in law be deemed impartial. The case must be one in which it is manifest the law left nothing to the 'conscience or discretion' of the court.' (Emphasis added) Reynolds v. United States, 98 U.S. 145 at 155-156, 25 L.Ed. 244 at 246 (1879).

And in Irvin v. Dowd, 366 U.S. 717 at 722-723, 81 S.Ct. 1639 at 1642-1643, 6 L.Ed.2d 751 at 756 (1961), this position was reaffirmed:

'It is not required, however, That the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.

This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality Would be to establish an impossible standard. It is Sufficient if the Juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Spies v. People of State of Illinois, 123 U.S. 131, 8 S.Ct. 21, 22, 31 L.Ed. 80; Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021, 20 Ann.Cas. 1138; Reynolds v. United States, supra.' (Emphasis added)

In support of defendant's contention that the trial judge abused his discretion in denying defendant's motions we are referred to the following cases: Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Irvin v. Dowd, supra; Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). Having compared the factual situations of the above-cited cases and the case at bar, we find that none of the critical, prejudicial factors in the cases cited are present in the case at bar. Here, the accused's trial was not televised (Estes Case, supra); the accused's trial did not take on a 'carnival atmosphere', where both before and during the trial the news media grasped at stories and rumors leaked by the police, county officials and even the district attorney's office (Sheppard Case, supra); nor was the accused faced with a prospective jury 90% Of whom had already formed an opinion as to the accused's guilt (Irvin case, supra). In the case at hand, to insure a minimum of publicity and a fair and impartial trial, the trial judge imposed rigorous restrictions on the personnel of the prosecutor's office and the sheriff's department prohibiting any form of comment on any aspect of this case.

(3) 'ERROR OF THE TRIAL JUDGE IN PERMITTING THE INTRODUCTION INTO EVIDENCE OF THE PRIOR CRIME BY THE DEFENDANT.'

It is now a well-established principle that in the prosecution of one accused of a particular offense evidence which tends to show that the accused has or may have committed some other crime entirely distinct from that for which he is now on trial is generally inadmissible. State v. Hughes, 102 Ariz. 118, 426 P.2d 386 (1967); State v. Byrd, 62 Ariz. 24, 152 P.2d 669 (1944); State v....