State v. Shaw

• Decision Date: 30 June 1967
• Docket Number: No. 2,CA-CR,2
• Citation: 429 P.2d 667,6 Ariz.App. 33
• Parties: The STATE of Arizona, Appellee, v. Zora Phine SHAW, Appellant. 47.
• Court: Arizona Court of Appeals

Page 667

429 P.2d 667

6 Ariz.App. 33

The STATE of Arizona, Appellee, v. Zora Phine SHAW, Appellant.

No. 2 CA-CR 47.

Court of Appeals of Arizona.

June 30, 1967.

Rehearing Denied Aug. 2, 1967.

Review Denied Oct. 3, 1967.

Darrell F. Smith, Atty. Gen., Gary K. Nelson, Asst. Atty. Gen., Phoenix, William J. Schafer, III, Pima County Atty., Tucson, for appellee.

W. Edward Morgan and Leslie J. Gilbertson, Tucson, for appellant.

KRUCKER, Judge.

An information was filed on September 24, 1964, charging the defendant-appellant, Zora Phine Shaw, with the crime of forgery, two counts, under the provisions of A.R.S. § 13--421. There were two trials, the first trial resulting in a mistrial. At the second trial the defendant was convicted of forgery under count 1; on June 24, 1965, the court, after denying a motion for a new trial, pronounced sentence by suspending the imposition of sentence for a period of two years. From the judgment and order denying a new trial, defendant appeals.

The appeal is based upon two grounds: (1) That the declaration of the mistrial in the first trial acts as a bar to retrial because retrial constitutes double jeopardy. (2) That the State, in permitting a key witness to refuse to testify under the fifth amendment (and refusing to grant such witness immunity from prosecution), deprives the defendant of her rights under the sixth amendment to a fair trial.

The facts leading to the declaration of a mistrial on March 26, 1965, are as follows:

Immediately after the preliminary hearing, the defense attorney and a deputy county attorney made an oral agreement to submit specimens of the defendant's handwriting to an expert in the office of the District Attorney of Los Angeles. A letter to this expert was prepared and sent by defense counsel to the Pima County Attorney's office for signature. The letter was never sent or signed. On November 25, 1964, the defense attorney wrote to the deputy county attorney, inquiring about the matter. On December 3, 1964, another deputy county attorney (and the prosecutor at the two trials) wrote to defense counsel stating, in part: '* * * this office does not feel that it is feasible to rely entirely upon a handwriting expert's opinion of whether or not the forged signatures on the credit slips are those of Zora Shaw.' Defense counsel contends: that this refusal on the part of the State to carry out its agreement forced him to then seek out the person who had in fact signed the credit slips; and that he did not have an opportunity to talk with this person until the morning of the trial. At that time, he states, the true signer of the slips confessed to him that she had signed them. He immediately took the woman to the trial judge's chambers. The judge told her of her fifth-amendment right to remain silent and advised her to obtain counsel.

When it became apparent that this woman would not testify on behalf of the defendant because of self-incrimination, and that defense counsel would have to testify to the 'confession' in his office, he requested a continuance so that Mrs. Shaw might obtain counsel of her choice to conduct her defense. This request for a continuance was opposed by the State and was denied. The next seven days of trial were taken up primarily with argument out of the presence of the jury. At the end of this time, the trial judge came to the conclusion that defense counsel's testimony should be presented, and that a continuance should have been originally granted. As set out in the transcript, defense counsel stated:

'* * * well, my feeling I am willing, Your Honor, that the Court grant a mistrial to avoid a paradox now. * * * I would be willing to have the Court grant a mistrial * * *' (Emphasis added)

It is clear that any motion made for a mistrial at this juncture was not a prosecution motion. The deputy county attorney stated:

'My feeling is the motion for mistrial on these grounds should not be granted, * * *'

Subsequently, the defendant's counsel referred to the question of whether a mistrial should be granted as a 'motion'. Defense counsel stated:

'If the Court resolved that accordingly with This motion, I have no further motions.' (Emphasis added)

At the conclusion the transcript discloses the following question by the defense attorney:

'Does the Court declare a mistrial as such?' and the response by the court:

'It has.'

In Arizona, the right against double jeopardy derives from the Arizona Constitution, Article 2, sec. 10, A.R.S. The Supreme Court of the United States has thus far refused to hold the corresponding federal right applicable to the states. See Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937); Cichos v. State of Indiana, 385 U.S. 76, 87 S.Ct. 271, 17 L.Ed.2d 175 (1966).

The states are relatively free to adopt their own rules in this area as long as those rules do not constitute a denial of 'fundamental fairness.' See Brock v. State of North Carolina, 344 U.S. 424, 429, 73 S.Ct. 349, 351, 97 L.Ed. 456, 460 (1953) (Frankfurter, J., Concurring).

Arizona has held that an improperly declared mistrial can bar retrial of a defendant, but not if it is declared upon the defendant...