State v. Soloman
| Decision Date | 09 January 1980 |
| Docket Number | No. 3833-2,3833-2 |
| Citation | 125 Ariz. 18,607 P.2d 1 |
| Parties | STATE of Arizona, Appellee, v. Willie James SOLOMAN, Jr., Appellant. |
| Court | Arizona Supreme Court |
Robert K. Corbin, Atty. Gen., William J. Schafer, III, Chief Counsel, Crim. Div., Asst. Atty. Gen., Gregory A. McCarthy, Asst. Atty. Gen., Phoenix, for appellee.
Michael A. Mulhall, Phoenix, for appellant.
Defendant Willie James Soloman, Jr., appeals from a judgment of conviction of first degree burglary 1 and a sentence of thirty years to life imprisonment, defendant having been convicted of a prior felony. 2 Taking jurisdiction pursuant to A.R.S. § 13-4031, we affirm.
The victim, Eva Macias, testified that at about 3:00 a. m. on September 23, 1976, two men entered her Phoenix home. One man, identified as defendant, raped her at knife point, and the two men then took various items from the apartment and left. Defendant was arrested later that day and an information was subsequently filed charging him with armed first degree burglary and armed first degree rape. Defendant pled guilty, pursuant to a plea agreement, to first degree rape while armed with a knife. He was sentenced to thirty years to life imprisonment.
On appeal, this Court remanded the case for an evidentiary hearing to determine whether defendant was aware of certain special conditions of his sentence at the time of his guilty plea. State v. Soloman, 117 Ariz. 228, 571 P.2d 1024 (1977). At the subsequent hearing, the trial court was not satisfied that defendant understood the special conditions of his sentence at the time he entered his guilty plea. The judgment was therefore set aside, the plea agreement vacated, and the matter set for trial.
On February 16, 1978, the day before Soloman's trial was to commence, the prosecutor learned that various items of real evidence concerning the crime had been destroyed by the police. This destruction occurred when the county attorney's office mistakenly sent a letter to the police, before the period of appeal from defendant's conviction had elapsed, advising the police that the evidence held in the police property room was no longer needed by the state. The evidence which was destroyed included a pair of sandals, a knife which defendant was alleged to have used in the crime, items of food and a blanket believed to have been stolen by Soloman, clothing belonging to both Soloman and the victim, and a rape kit containing medical evidence obtained from the victim shortly after the crime. In addition, it appears that a photograph display shown to the victim, by which she first identified defendant, was not preserved.
On February 17, 1978, defense counsel was notified that the evidence had been destroyed. On that same day, a jury was impaneled for defendant's trial.
On February 22, defendant made a motion in limine asking the court to preclude all testimony concerning the destroyed evidence. The court granted this motion as to all evidence except the knife. The court reserved its ruling on the knife, because the jury had already become aware of the knife when it was questioned on voir dire.
On February 23, defendant moved for a dismissal based on the destruction of evidence. The motion was granted, and the state filed a petition for a special action in this Court. We held, in State ex rel. Hyder v. Hughes, 119 Ariz. 261, 580 P.2d 722 (1978), that under the circumstances of this case, both dismissal and suppression of testimony referring to destroyed evidence were improper. The order that was sent to the trial court, dated March 15, 1978 said:
No mention was made in that order of the motion in limine to suppress testimony. The full opinion of the Court in this matter, which did address the suppression issue, was not filed until June 27, 1978, after defendant's trial had ended.
On March 20, 1978, a hearing was held in trial court concerning the effect of our March 15 order on the defendant's motion in limine. The trial court finally ordered that testimony concerning all destroyed evidence except the knife would be inadmissible. On March 22 defendant moved for suppression of testimony referring to the knife and for a mistrial, since the present jury had already heard reference to the knife. The trial court granted the mistrial and dismissed the jury but also ordered that testimony concerning all destroyed evidence was to be allowed.
On March 23 defendant, contending that a trial with a new jury would improperly place him twice in jeopardy, moved for a dismissal. His motion was denied, a new jury was impaneled, and the trial proceeded. The jury found defendant guilty of burglary of the first degree, but was unable to reach a verdict on armed rape, rape, or armed burglary. Pursuant to an agreement of the parties, defendant admitted a prior felony conviction, and, in return, the state moved for a dismissal of the charges on which no verdict was reached. 3 Defendant was then sentenced to thirty years to life imprisonment.
Soloman raises two issues on appeal:
(1) Was his right not to be twice placed in jeopardy violated?
(2) Was he deprived of due process of law by the trial which proceeded in the absence of the evidence destroyed by the state?
Defendant claims that when the first jury was impaneled he was placed in jeopardy, and when the trial court declared a mistrial and proceeded to trial with a new jury, he was improperly placed in jeopardy for a second time. The right not to be twice placed in jeopardy of life or limb for the same offense, guaranteed by the Fifth Amendment to the Constitution of the United States, is applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Klinefelter v. Superior Court, 108 Ariz. 494, 502 P.2d 531 (1972). Moreover, it is now clear that the federal rule that jeopardy attaches as soon as a jury is impaneled is of constitutional magnitude. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). 4 We thus find that jeopardy did attach in this case when the first jury was impaneled, and we must now consider whether the mistrial order impermissibly placed Soloman in jeopardy twice.
In the absence of judicial overreaching or prosecutorial misconduct aimed at preventing an acquittal, a mistrial granted at defendant's request does not ordinarily bar a later prosecution. United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); see State v. Parker, 116 Ariz. 3, 567 P.2d 319 (1977). This is true even when defendant's request for a mistrial is prompted by a judicial or prosecutorial error. United States v. Jorn, supra.
In the instant case we note initially that defendant moved for a mistrial. Defendant does not claim, nor do we find, that judicial overreaching or misconduct by the state caused this motion. Defendant argues, however, that his motion for a mistrial was coupled with his motion in limine to suppress testimony about the knife and that the granting of the mistrial motion alone was over his "vehement protest." The record does not support this contention. It is true that defendant, both in his written motion and at the March 22 hearing, stated that the mistrial and the suppression of testimony about the knife were related. But at the time when the trial court first declared a mistrial, the evidentiary ruling of the previous day, that testimony concerning all destroyed evidence except the knife was prohibited, had not been changed. At this point in the hearing defendant raised no objection, although without additional relief the mistrial would accomplish nothing for him. Immediately after declaring a mistrial the court, upon a motion by the state, ordered that no testimony concerning destroyed evidence should be precluded. It was at this point that defendant objected. His objections were aimed, however, not at the mistrial order but at the evidentiary ruling which made the mistrial useless to defendant. We note further that at a later point in the hearing the court repeated its mistrial order. We cannot discern from the record whether the jury had already been dismissed after the first order, but the defense, even at this time, failed to raise a clear objection to the mistrial as such and not to what it considered to be an unfavorable evidentiary ruling.
It is apparent from the record that both parties and the court were troubled and confused by a hotly disputed and complex legal problem. Under these circumstances, when a defendant moves for a mistrial as a complement to additional relief, he bears the responsibility of clearly objecting to the granting of a mistrial where the auxiliary relief has not also been granted. In the absence of such an explicit objection, a defendant bears the risk that, due to his own motion, a mistrial will be granted which is unnecessary and unhelpful to him. We hold that defendant was not unconstitutionally twice placed in jeopardy.
Defendant also contends that he was deprived of due process when he was tried without the items of demonstrative evidence prematurely destroyed by the state. When the present case was before this Court in a...
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State v. Waits
...not to swear in the jury, the court implicitly agreed to avoid the double jeopardy implications of impaneling a jury. See State v. Soloman, 125 Ariz. 18, 21 (1980) (noting that the Double Jeopardy Clause of the United States Constitution protects a criminal defendant against repeated prosec......