State v. Stewart

• Decision Date: 04 January 1984
• Docket Number: No. 5925-PR,5925-PR
• Citation: 676 P.2d 1108,139 Ariz. 50
• Parties: STATE of Arizona, Appellee, v. Alexander STEWART aka Ricky Brown, Appellant.
• Court: Arizona Supreme Court

Page 1108

676 P.2d 1108

139 Ariz. 50

STATE of Arizona, Appellee, v. Alexander STEWART aka Ricky Brown, Appellant.

No. 5925-PR.

Supreme Court of Arizona, In Banc.

Jan. 4, 1984.

Robert K. Corbin, Atty. Gen. by Diane M. Ramsey, Jack Roberts and William J. Schafer III, Asst. Attys. Gen., Phoenix, for appellee

Law Office of Richard D. Coffinger by Richard D. Coffinger, Glendale, for appellant.

HAYS, Justice.

Appellant Alexander Stewart was convicted of armed robbery (A.R.S. § 13-1904), and the jury found that he had been previously convicted of four felonies. (One conviction was for escape, and the remaining three were crimes of assault while armed.) Appellant was sentenced to thirty-five years imprisonment, to run consecutively to the term of imprisonment he must serve in New Jersey. The Arizona Court of Appeals reversed appellant's conviction. State v. Stewart, 138 Ariz. ---, 676 P.2d 1124 (1983). We granted the state's petition for review and vacate the opinion of the court of appeals. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. § 13-4038.

Appellant's basic argument on appeal deals with the fact that he was shackled during the trial, and gagged for a portion of the trial. Solely on the issue of shackles, the court of appeals reversed.

The record reveals that on July 18, 1980 at about 3:00 a.m., Steven Levine, who worked the night shift at a motel in Tempe, noticed a white over burgundy late model hard-top (it was later found to be a Cadillac) enter the motel parking lot. He became suspicious, and he called the Tempe Police Department. He thought there were two black people in the car, which then left the parking lot.

Within minutes, two black men entered the motel. The men leaned over the counter and inquired about a room. After a short discussion, the men said they would take a room. Levine asked for identification in response to which appellant, who Levine described as wearing a green T-shirt and army-style fatigue pants, and being five-seven or eight, dark skinned, with high cheekbones, and an oblong head, produced a small handgun with a dull chrome finish from a rear pocket and indicated that it was his identification.

The men ordered Levine into a back room and told him to lie face down on the floor with his hands behind his head. He was then ordered to get up and open the cash register, which he did. The men ordered Levine to lie on the floor again. He was asked if there was any more money, and he told the men that there was money in a safe deposit box. One of the men was binding Levine's legs when one of them said that the police had arrived. The men then ran out a rear door. Two police officers then arrived; one stayed with Levine and the other pursued the robbers without success.

Just after receiving a radio broadcast about the robbery, Lieutenant Kishiyama of the Tempe Police Department saw what he described as a white over maroon vehicle coming toward him. He saw two occupants. He made a U-turn to pursue the vehicle and it accelerated. After a short chase the vehicle came to a stop in a parking lot. Approaching the vehicle, the lieutenant saw two black males run from the car. One man remained at the vehicle.

Levine was brought to the vehicle for an on-the-spot identification. He could not identify the black male who remained with the car. Levine was taken to two other locations and asked if he could identify the black males there. He could not. He was taken back to the motel.

The police brought in a helicopter to search for the two men who fled from the vehicle. Approximately 45 minutes after the helicopter search began, appellant was found. He was partially concealed in a small cave and behind a rock on A-Butte in Tempe. On the other side of A-Butte is the Tempe Police Department. The place appellant was found is approximately 250 yards from where the Cadillac came to a stop.

The arresting officer testified that he took the gun, which Levine identified in A few moments later Levine was brought to the bottom of A-Butte. He testified that as soon as he saw appellant he knew that appellant was one of the men who robbed him, although he waited until the police asked him if he could identify appellant before he said anything. Other facts will be discussed as necessary.

court, from appellant at the time of his arrest. Appellant was wearing a pair of fatigue pants and a black tank top shirt.

SHACKLES

The point most strenuously urged by appellant as error, and the point on which the court of appeals reversed appellant's conviction, is that appellant was shackled throughout the trial (except for voir dire of the jury, for which he wore an under-the-trouser leg brace). Appellant argues that it was reversible error to shackle appellant because the motion to shackle was untimely, the restraint was more severe than necessary, and the court did not adequately admonish the jury to disregard the shackles.

Appellant argues that Arizona Rules of Criminal Procedure, rule 16.1(b) ("motions shall be made no later than 20 days prior to the date set for trial") barred the state from bringing this motion for the first time on the day scheduled for trial. Appellant also cites State v. Superior Court, 127 Ariz. 175, 619 P.2d 3 (1980), for the proposition that the 20-day time limit is computed from the first trial setting and not from the date the trial actually commences. The consequence of failing to follow rule 16.1(b) is provided in rule 16.1(c) (the issue is precluded unless the basis therefor was not known or by reasonable diligence could not have been known). The trial date was originally scheduled for September 22, 1980. The hearings on several pretrial motions and continuances requested by both sides caused the date to be moved to March 24, 1981. It was on the latter date that the motion was made.

We disagree with the contention that the motion to shackle was untimely. We hold that a motion to shackle is not governed by the time limitation of rule 16.1(b). As this court said in State v. Delvecchio, 110 Ariz. 396, 400, 519 P.2d 1137, 1141 (1974):

A trial judge has not only the right but the responsibility of seeing that trials are conducted properly and without disruption, and he is allowed to take those necessary measures to provide for the orderly disposition of criminal cases.... A criminal trial is coercive in nature and a defendant will seldom voluntarily submit to such a trial.

We find that the trial judge did not abuse discretion in hearing this motion. We also note that the judge gave appellant every opportunity to present witnesses in his behalf, and appellant does not allege that evidence or witnesses were unavailable to him which would have been available if the motion had been heard earlier.

Assuming arguendo the time limitation of rule 16.1(b) applied, appellant's deliberate lies to the state and court prevented the state from discovering appellant's true identity until the September 2, 1980 deadline for filing pretrial motions had passed. On December 11, 1980, Judge Seidel (who was one of the judges to hear pretrial motions in this matter) was considering releasing appellant from jail with property taken as security. At that hearing appellant, who then called himself Ricky Brown, ¹ stated, "I never been in trouble before, Your Honor, and I have no reason, you understand, not to show up in court or, you know, flee or anything like that because, you know, I'm confident that I be acquitted of this charge." Later that day, before appellant was to be released, the state learned that appellant had prior felony convictions in New Jersey under the name of Alexander Stewart. In explaining Yes, your Honor, I am not playing games. I lied, I did lie, just like any American true blue boy would, I was in trouble, I didn't tell the truth. As Churchill said, sometimes it is harmful and so detrimental to one's self, you have got to be protected by a pack of lies. I lied. I had to lie. Like I was in trouble. What am I supposed to do, I mean? Under the Declaration of Independence, under the State's pursuit of happiness and freedom, I did like anyone in trouble would do, like Nixon, Agnew, like they lied about the bombing of Cambodia, the Watergate tapes, many people in trouble and other people deny it. I couldn't tell my name, I don't expect anyone to do that. What can I do? I am a fugitive. What can I do, your Honor? I tried to hide my identity because I wanted to get away from this, wanted to better myself. I don't like jail scenery, I don't want to go back there.

his previous statement to Judge Seidel appellant said:

....

This man don't understand. When you are a fugitive, man, you don't tell people who you are. The game would be up if you say yes, my name is Alexander Stewart, and you run away from, you know, from Jersey, you know. I keep trying to tell them, you know, how much do you expect out of me? I mean, a man has got a right to preserve his freedom. You try to get out of the cage, try to get away from a bad situation.

....

Like I said, I was on the run, your Honor. I wish you would consider that, you know. If I wasn't in any trouble, I would tell you everything about me, but I couldn't. I would just be deeply in trouble. I had to preserve myself by telling a pack of lies.

Thus, appellant's deliberate obstruction prevented the state from gathering this information in a timely fashion.

Appellant next argues that the trial court committed reversible error in shackling appellant. As we said in State v. Reid, 114 Ariz. 16, 22, 559 P.2d 136, 142 (1976), cert. denied, 431 U.S. 921, 97 S.Ct. 2191, 53 L.Ed.2d 234 (1977), whether a defendant will be shackled is within the sound discretion of the trial court. In Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970), the Supreme Court said:

We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the...