State v. Spencer

• Decision Date: 22 December 1966
• Docket Number: No. 1679,1679
• Citation: 421 P.2d 886,101 Ariz. 529
• Parties: STATE of Arizona, Appellee, v. Alonzo Charles SPENCER, Appellant.
• Court: Arizona Supreme Court

Page 886

421 P.2d 886

101 Ariz. 529

STATE of Arizona, Appellee, v. Alonzo Charles SPENCER, Appellant.

No. 1679.

Supreme Court of Arizona, In Banc.

Dec. 22, 1966.

Alonzo Charles Spencer, in pro. per.

Darrell F. Smith, Atty. Gen., Gary K. Nelson, Asst. Atty. Gen., for appellee.

McFARLAND, Justice.

Alonzo Charles Spencer, hereinafter referred to as defendant, was tried and convicted of grand theft of an auto in violation of A.R.S. §§ 13--661, 13--663, as amended in 1963, and 13--671, and sentenced to serve not less than twenty years nor more than thirty years in the Arizona state prison. From this conviction defendant appeals.

Construing the evidence in a light most favorable to the state--State v. Griffin, 99 Ariz. 43, 406 P.2d 397--the following facts led to the arrest, conviction, and sentencing of defendant. On August 7, 1965, defendant appeared at the back door of one of the buildings belonging to Bill Luke Chrysler in downtown Phoenix. He told an employee of Bill Luke Chrysler that he was to report there for a job. The employee told defendant that he would have to wait until a certain party returned from vacation before being hired. The next morning, defendant returned to Bill Luke Chrysler, and entered one of the buildings on the property, shuffled certain cars around inside, and removed a 1965 Chrysler Newport, Serial No. C--153--317399. While defendant was inside he also removed the license plates and registration card from a 1963 Chrysler in the same building which Eleanor Goebel had left there for repairs. Defendant inadvertently left his cap in one of the cars in the Bill Luke building.

Defendant was stopped near Peoria, Arizona, for improperly changing lanes. The police officer asked defendant for his driver's license, and defendant told him that it was not his car, and that he had been hired by a woman named Mrs. Goebel to drive the car to Kingman; said that his license must be in a bag of his which she had in the car she was driving some distance ahead of him. The officer noticed the car's registration was for a 1963 Chrysler and defendant explained that Mrs. Goebel must have given him the wrong registration. The police officer then called the radio dispatcher on his radio, and was informed that there was no stolen car reported of the description of the one driven by defendant. Then the radio dispatcher called Eleanor Goebel at her Phoenix home, and she denied any knowledge of defendant, or the story which he had told the police. Defendant was then advised of his constitutional rights and taken to the Peoria police station before the local justice of the peace and found guilty of the traffic violation for which he had been cited. He was given a fine, or, in the alternative, a jail sentence. Defendant was unable to pay the fine, and was transferred to the Maricopa County jail on Monday, August 9, 1965. On Tuesday, August 10th, after being fully advised of his constitutional rights, he confessed to theft of the auto, and was bound over for probable cause.

Because defendant was an indigent, Don Francone of the public defender's office was assigned as counsel for his defense. Due to disagreements with defendant, Francone's motion to withdraw as counsel was granted, and defendant decided to conduct his own defense. The trial court made it quite explicit that if defendant chose to defend his own case rather than request the appointment of another counsel he would be governed by the same rules of procedure as would an attorney. He assented to these conditions. Despite his decision to be his own counsel, the trial court ordered that another member of the public defender's staff be present at the proceedings in the capacity of advisory counsel to assist defendant whenever he felt the need. The trial court further advised defendant that if at any time during the trial defendant wished to be represented by counsel, the court would appoint an attorney to represent him.

Defendant appeals from the conviction and sentence, and, pursuant to a motion by a deputy public defender, we granted a review based upon the record for fundamental error. Defendant later requested, and was granted, the right to file briefs in propria persona. We will therefore consider both the matters set forth in defendant's brief, and examine the record for fundamental error.

Defendant first contends that he was denied a fair and impartial trial because the trial court was guilty of bias and prejudice. Defendant only cites one portion of the record which even merits a discussion of this contention. Before pronouncing sentence, the trial court informed defendant that because of his lengthy record of criminal involvement he was not going to give defendant a light sentence. Defendant maintains that there were certain errors in his F.B.I. 'rap' sheet which the trial court had relied on in pronouncing sentence. It suffices to say that this contention does not go to the proceedings which resulted in the guilty verdict but only to the sentence. Assuming, as defendant contends, there were one or two errors in his 'rap' sheet, there are many other criminal involvements which the court could properly take into consideration in exercising its discretion under A.R.S. § 13--1650 in imposing the sentence.

In further answer to this cotnention concerning the bias and prejudice of the trial court, the record is abundant with examples of time-consuming efforts on the part of the court and advisory counsel in regard to procedural problems of examination and cross-examination, and leniency. For example, the court requested the deputy county attorney not to make any objections unless he felt that it was very important.

Defendant contends that he was denied the right to counsel, and because of this he was forced to represent himself. The record does not substantiate this charge. Defendant insisted upon defending himself, and the court then ordered that a member of the public defender's staff sit in on all proceedings as advisory counsel. The record shows that, in the light of defendant's decision to defend himself, the trial court and the advisory counsel did all that was possible, and defendant never accepted the offer of the court to furnish him counsel. Under these facts we find no merit in his contention that he was deprived of counsel. He clearly waived the right to counsel. State v. Anderson, 96 Ariz. 123, 392 P.2d 784.

Defendant contends that he was deprived of the right to confront and cross-examine certain witnesses. He claims that these witnesses would have been very helpful to his case, and, even though he was expressly informed that he had a right to subpoena witnesses in his behalf, there is nothing in the record to show that defendant even attempted to subpoena anyone. The substance of his claim is that these two witnesses were subpoenaed by the prosecution. He was aware of this fact, and relied on the prosecution's subpoena to have the witnesses appear. One of the witnesses did not appear because he was on vacation, and the appearance of the other, Eleanor Goebel, was not required, for she was out of state at the time of the trial. In State v. Mace, 86 Ariz. 85, 340 P.2d 994, we said:

'Appellant complains of the fact that the trial court proceeded with the trial in the absence of one Gordon Noe, the complaining witness; and further, did not grant appellant a continuance to secure his presence. Appellant argues (but cites no authority to the effect) that proceeding with the trial in the absence of the complaining...