State v. Stolze, 2916

• Decision Date: 11 September 1975
• Docket Number: No. 2916,2916
• Citation: 539 P.2d 881,112 Ariz. 124
• Parties: STATE of Arizona, Appellee, v. William E. STOLZE, Appellant.
• Court: Arizona Supreme Court

Page 881

539 P.2d 881

112 Ariz. 124

STATE of Arizona, Appellee, v. William E. STOLZE, Appellant.

No. 2916.

Supreme Court of Arizona, In Banc.

Sept. 11, 1975.

Bruce E. Babbitt, Atty. Gen., N. Warner Lee, Former Atty. Gen., Teresa S. Thayer, Asst. Atty. Gen., Phoenix, for appellee.

Allen A. Haggard, Phoenix, for appellant.

LOCKWOOD, Justice:

The appellant, William E. Stolze, was convicted of three counts of furnishing marijuana to a minor in violation of A.R.S. § 36--1002.08 and was sentenced to a term of not less than ten years nor more than ten years and one day in the Arizona State Prison.

The appellant's first contention is that his right to due process under the Fourteenth Amendment to the United States Constitution 'has been violated by the unwillingness of the lower court to provide him with the complete transcript of his lower court trial.' Appellant further states that 'counsel has made repeated requests that the lower court furnish the complete four volumes of the reporter's transcript * * * (and) was only able to obtain two and has prepared this appeal using those two.' It is well established that '(d)estitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.' Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). In terms of a trial record, this means that the state must afford the indigent a "record of sufficient completeness' to permit proper consideration of (his) claims.' Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963). While a 'record of sufficient completeness' does not translate automatically into a complete verbatim transcript, 'the State must provide a full verbatim record where that is necessary to assure the indigent as effective an appeal as would be available to the defendant with resources of pay his own way.' Mayer v City of Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971).

We find that the trial court fully complied with the requirements of due process and the equal protection clause by issuing an order on January 24, 1974, approximately a month and a half after sentencing, stating 'that a copy of the transcript of proceedings be furnished to the defendant at the expense of Gila County.' At the same time the court granted the defendant an extra thirty days in which to file his appeal. In view of this action by the trial court we are not swayed by appellant's allegation in his brief that '(r)rpeated efforts by defense counsel to secure transcripts were met with bureaucratic unwillingness to provide the transcripts at anything other than fifty cents a page.' Armed with the court's order, defense counsel was in a position to easily enforce his request for a free copy of the transcript. Appellant fails to allege that discussion of any issue was hindered by his supposed inability to obtain a portion of the transcript and a reading of his brief displays a complete discussion of the facts and issues in this case. We find no merit in this contention.

The appellant's second contention is that the testimony of an eleven year old prosecution witness should have been stricken from the record by the trial court because her testimony was the product of 'coaching' by her brother who was in the courtroom in violation of 'the rule.' The record is devoid of a scintilla of evidence to support a charge of 'coaching.' Defense counsel made no objection on this ground at trial. The mere fact that the witness' brother remained in the courtroom in violation of 'the rule' after he testified neither establishes 'coaching' nor prejudice to the defendant under the facts of this case. In State v. Sowards, 99 Ariz. 22, 406 P.2d 202 (1965), we stated:

'Arizona has no statutory provision or criminal procedure rule relating to the sequestration of witnesses during a trial, but this common law practice was followed in our courts before Arizona became a state. Territory of Arizona v. Dooley, 3 Ariz. 60, 78 P. 138 (1889). The purpose of excluding witnesses from the trial is to encourage the discovery of truth, and detection and exposure of falsehood. State v. Thomas, 78 Ariz. 52, 275 P.2d 405 (1954). As we have previously said, exclusion of witnesses from the courtroom and administration of the exclusionary rule is within the sound discretion of the trial judge and this court will not disturb the ruling of the trial court unless there is shown an abuse of discretion and resulting prejudice therefrom. State v. Romero, 85 Ariz. 263, 336 P.2d 366 (1959).' 99 Ariz. at 26, 406 P.2d at 204.

Because the witness' brother had already testified, the policy underlying 'the rule' was not violated. When the trial judge pointed out to both attorneys during the sister's testimony that the witness' brother had not left the courtroom the defense attorney declined to request removal. We find no prejudice to the defendant nor an abuse of discretion by the trial court for failing to order removal on its own motion.

The appellant's third contention is that he was 'denied a fair trial by the impaneling of a jury who subsequent to their being sworn in proved to be composed of persons who were friends and business acquaintances of prosecution witness Edward Guerrero, who was also the father of the minor child to whom the appellant supposedly furnished the contraband.' Again, the appellant offers no facts to support his allegation. What the record actually discloses is that Edward Guerrero, a member of the Arizona House of Representatives, testified that none of the jurors were 'close personal friends.' He admitted that as a Representative of that District he had encountered several of the jurors before, but was unable to recall any of their names. There was no evidence Guerrero had ever had business dealings with any of the jurors. The burden is on the party who claims he was tried by a biased jury to establish that a juror gave improper answers on voir dire or that the selection procedure was somehow discriminatory. United States v. Crosson, 462 F.2d 96 (9th Cir. 1972), cert. denied 409 U.S. 1064, ...