State v. Superior Court of Pima County

• Decision Date: 15 December 1967
• Docket Number: No. 9113,9113
• Citation: 102 Ariz. 588,435 P.2d 485
• Parties: The STATE of Arizona, Petitioner, v. The SUPERIOR COURT OF PIMA COUNTY, the Hon. Richard Roylston, and John LeRoy Jones and Marshall L. Mount, Real Parties in Interest, Respondents.
• Court: Arizona Supreme Court

Page 485

435 P.2d 485

102 Ariz. 588

The STATE of Arizona, Petitioner, v. The SUPERIOR COURT OF PIMA COUNTY, the Hon. Richard Roylston, and John LeRoy Jones and Marshall L. Mount, Real Parties in Interest, Respondents.

No. 9113.

Supreme Court of Arizona, In Banc.

Dec. 15, 1967.

Rehearing Denied Jan. 9, 1968.

William J. Schafer, III, Pima County Atty., Jacqueline Schneider, Deputy County Atty., for petitioner.

Anthony B. Ching, Tucson, for respondent Marshall L. Mount.

William L. Berlat, Tucson, for respondent John LeRoy Jones.

McFARLAND, Vice Chief Justice:

This case comes before us on a writ of certiorari. The Grand Jury in Pima County, Arizona, in an indictment charged that defendants on or about the 17th day of February 1966 committed the crime of burglary. They were arraigned on the 1st day of March 1966, at which time, after defendants were questioned by the court as to their ability to employ counsel, Anthony Ching--being present in the courtroom--was appointed to represent defendants. Later, another counsel, William L. Berlat, was appointed as attorney for Jones. Both waived the reading of the indictment, both entered pleas of not guilty, and it was ordered that defendants be given ten days in which to file motions directed toward the indictment.

The case was set for trial on April 20, 1966, on which date the trial was held. No motions were made either before or during trial in regard to the indictment. Defendants were both convicted of burglary of the first degree, as charged in the indictment. A motion for a new trial was made by each defendant on April 27, 1966 on grounds other than the sufficiency of the indictment. The motions were denied, and imposition of sentence was suspended on each defendant for a period of two years. Both defendants appealed. On June 20, 1967, the Court of Appeals, Div. Two, reversed the conviction, and ordered a new trial. State v. Jones, 6 Ariz.App. 26, 429 P.2d 518.

Thereafter each defendant moved to quash the indictment. The motion of John LeRoy Jones incorporated by reference the motion and authorities of defendant Marshall L. Mount, which motion was as follows:

'COMES NOW defendant Marshall L. Mount, by and through Anthony B. Ching, his court appointed attorney for his appeal, and pursuant to Rules 166, 177 and 316 of the Ariz. Rules of Crim. Procedure, 17 A.R.S., respectfully moves this Court for an order dismissing or quashing the indictment against him herein for the reason that the grand jury which, found and returned the indictment against (him) was found by the Supreme Court of the State of Arizona to be improperly impanelled and thus unlawfully constituted.'

The motions to quash will hereinafter be referred to as one motion.

The Superior Court granted the motion, and gave the attorneys five days to file a new complaint. This motion was based upon the decision of this court in State v. Superior Court of Pima County, 102 Ariz. 388, 430 P.2d 408. In that case it was shown that there was ground for challenge of the panel for the reason that the jurors had not been fully examined as to their qualifications as provided for in Rule 82, Rules of Crim.Proc., 17 A.R.S. We held that the motion to quash the indictment on these grounds was properly granted. The question in the instant case is whether a motion to quash an indictment which was not made before arraignment should have been sustained by the trial court. Counsel for defendants point to the following language of this court, in State v. Superior Court of Pima County, supra, in which we stated:

'A jury which cannot return a valid indictment is a judicial nullity and further proceedings on its part could result in nothing more than an expenditure of time and funds. Such is the posture of the jury in the instant case. Every indictment returned by this jury would be subject to the same attack. The attack having been found valid by one division of the court, there is reason to believe it will continue to succeed whenever raised.' 102 Ariz. at 392, 430 P.2d at 412.

This was followed by the further language:

'A challenge to the panel having been sustained, the jury, if permitted to continue its function, would be operating under a serious, if not fatal, impediment. Rule 88 prevents such consequences and in order to fully effectuate its purpose, it must be construed to provide for mandatory discharge of the jury, whether the challenge is sustained before or after the jury is sworn.' 102 Ariz. at 392, 430 P.2d at 412.

Defendants in the instant case contend that while their motion was brought under Rule 166, Rules of Crim.Proc., 17 A.R.S., it was also brought under Rules 169, 177, and 316, Rules of Crim.Proc., 17 A.R.S., and that for this reason they did not waive their right to challenge the jury by not having made a motion to quash the indictment before the plea.

The motion to quash the indictment in the instant case is governed by statutory grounds for challenge to grand jurors and rules of this court. A.R.S. §§ 21--101 and 21--201 set forth the qualifications of grand jurors. Rule 84, Rules of Crim.Proc., 17 A.R.S., sets forth the ground for challenge to a panel, as follows:

'A challenge to the panel may be made only on the ground that the grand jurors were not selected or drawn according to law.' Ariz. Rules of Crim.Proc., 17 A.R.S.

However, Rule 86 provides the time for challenge:

'No challenge may be made after the jurors are sworn, except as provided by Rule 169.' Ariz. Rules of Crim.Proc., 17 A.R.S.

Rule 169 limits the grounds under which a motion to quash an indictment or information is available. The facts of State v. Superior Court of Pima County, supra, are different from those in the instant case in that in the former the motion to quash the indictment was made before a plea, and in the instant case the motion was made after the plea, after conviction, after reversal of the conviction, and before the second trial.

Rule 166 provides:

'Upon being arraigned the defendant shall immediately, unless the court grants him further time, either move to quash the indictment or information or plead thereto, or do both. If he moves to quash, without also pleading, and the motion is withdrawn or overruled he shall immediately plead.' Ariz. Rules Crim.Proced., 17 A.R.S.

Rule 168, subsec. B provides:

'All defenses except those otherwise provided by these Rules shall be taken by a motion to quash the indictment or information or a count thereof.' Ariz. Rules Crim.Proced., 17 A.R.S.

Under Rule 177 ¹, defendant waives all objections or defenses which are grounds for a motion to quash except those which are also grounds for a motion in arrest of judgment, and except those which are also pleas authorized by these rules. The grounds for a motion in an arrest of judgment are set forth under Rule 316, supra ². The only possible ground which defendant could claim would be that under paragraph 2 '* * * the court is without jurisdiction of the action.'

The question then presented is whether, under the facts of State v. Superior Court of Pima County, supra, and in the instant case the failure of the court to comply fully with Rule 82, Rules of Crim.Proced., 17 A.R.S., the determination of the qualifications of the grand jurors was of such a serious nature as to render all of their actions void. If they were merely voidable upon motion they could only be attacked by a motion to quash made before a plea. As we said in the former case:

'Under these circumstances we cannot say whether an indictment was returned in the instant case by a fair and impartial grand jury. * * *' 102 Ariz. at 393, 430 P.2d at 413.

The qualifications of the jurors were not shown for the reason that the proper questions were not asked them under Rule 82, supra. This is a case of first impression. Abbott v. Superior Court of Pima County, 86 Ariz. 309, 345 P.2d 776, is not in point for the reason that in that case a motion to quash was made before a plea and the question presented was different in that there was not a quorum present during the consideration of the evidence.

However, the question of whether a defect of an indictment having been returned by less than the requisite number of grand jurors was one that could be waived was considered by the U.S. Supreme Court in The Matter of Wilson, 140 U.S. 575, 11 S.Ct. 870, 35 L.Ed. 513, wherein the court, in passing upon the question of jurisdiction of the court over a case in which it was contended that the court did not have jurisdiction of the case because the number of grand jurors did not comply with an act of the legislature of the Territory of Arizona, said:

'* * * His proposition is that the grand jury which indicted him was not a legally-constituted tribunal, in that it was composed of only 15 members, whereas, by an Act of the Legislature of the Territory of Arizona, passed on March 12, 1889, a day before that upon which the offense is charged to have been committed, it was required that grand juries should be composed of not less than 17 nor more than 23 members. The response thereto is, that no such Act was passed, and that, even if it were, the defect in the number of grand jurors did not vitiate the entire proceedings, so that they could be challenged collaterally on habeas corpus, but was only a matter of error, to be corrected by proceedings in error. * * *

'* * * When that indictment is presented, that accusation made, that pleading filed, the accused has two courses of procedure open to him. He may question the propriety of the accusation, the manner in which it has been presented, the source from which it proceeds, and have these matters promptly and properly determined, or, waiving them, he may put in issue the truth of the accusation and demand the judgment of his peers on the merits of the charge. If he omits the former and chooses the latter, he ought not, when defeated on the latter, when found guilty of the crime charged, to be permitted to go back to the former and...