State v. Sutton

• Decision Date: 29 June 1976
• Docket Number: CA-CR,No. 1,1
• Citation: 551 P.2d 583,27 Ariz.App. 134
• Parties: STATE of Arizona, Appellee, v. Charles SUTTON, Appellant. 1584.
• Court: Arizona Court of Appeals

Page 583

551 P.2d 583

27 Ariz.App. 134

STATE of Arizona, Appellee, v. Charles SUTTON, Appellant.

No. 1 CA-CR 1584.

Court of Appeals of Arizona, Division 1, Department B.

June 29, 1976.

Rehearing Denied Aug. 30, 1976.

Bruce E. Babbitt, Atty. Gen., by William J. Schafer, III, Chief Counsel, Crim. Div., Ronald L. Crismon, Asst. Atty. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender, by H. Allen Gerhardt, Jr., Deputy Public Defender, Phoenix, for appellant.

OPINION

SCHROEDER, Judge.

After a trial to a jury, the appellant Charles Sutton was convicted of two counts of credit card forgery in violation of A.R.S. § 13--1074 and one count of possession of a stolen credit card in violation of A.R.S. § 13--1073. He was sentenced to four to five years imprisonment on each count, the sentences to run concurrently as of the date of his arrest. A petition to file a delayed appeal was granted by the trial court and on October 8, 1975, the current appeal was taken from the judgment and sentence of August 28, 1975. Four issues are presented:

1. Did the title to Senate Bill 1267 which amended A.R.S. § 13--1073 comply with Arizona Constitution, art. 4, pt. 2, § 13?

2. Was it error for the trial court to fail Sua sponte to hold a voluntariness hearing as to statements made by the appellant to a police officer?

3. Did the trial court err in failing to strike the jury panel when one prospective juror stated that he had heard the name of the appellant through his employment with the police department?

4. Did appellant's conviction of both possession and forgery of a credit card subject him to double punishment within the meaning of A.R.S. § 13--1641?

We turn first to the claimed constitutional defect in A.R.S. § 13--1073, as amended in 1972. Appellant argues that the title to the Senate bill containing the 1972 amendments did not give adequate notice of the bill's contents and, therefore, violated our constitutional provision dealing with subject and title of bills, Ariz.Const. art. 4, pt. 2, § 13, which provides:

'Every Act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title; but if any subject shall be embraced in an Act which shall not be expressed in the title, such Act shall be void only as to so much thereof as shall not be embraced in the title.'

The general subject of A.R.S. § 13--1073 is credit card crimes. Prior to the 1972 amendment, A.R.S. § 13--1073(C), Laws, 1969, read as follows:

'Every person other than the issuer who sells, transfers, conveys, or receives a credit card with the intent to defraud Is guilty of a misdemeanor.' (Emphasis added).

The 1972 amendment changed that subsection to read:

'Every person other than the issuer who sells, transfers, conveys, Possesses or receives a credit card with the intent to defraud Shall be punished by imprisonment in the state prison for not less than one nor more than five years, or by imprisonment in a county jail for not to exceed one year.' (Emphasis added).

The amendment thus increased the punishment for the proscribed acts and also added the punishable offense of possession of a credit card with intent to defraud. Amendments to other subsections increased the penalty for other credit card crimes, including theft of a credit card.

Senate Bill 1267, Ch. 112, (1972) Laws of Arizona 577, carried the following title:

AN ACT RELATING TO CRIMES; PRESCRIBING PENALTY FOR THEFT OF CREDIT CARD, AND AMENDING SECTION 13--1073, ARIZONA REVISED STATUTES.

The title correctly indicated that the bill related to the penalty for theft of a credit card and amended § 13--1073. However, appellant urges that because the title did not expressly state that the amendment proscribed the additional act of possession of a credit card with fraudulent intent, the provisions relating to possession are unconstitutional and his conviction on the possession count must be reversed. We disagree.

The purpose of the constitutional provision is to prevent surprise as to the subjects dealt with by the act. White v Kaibab Road Improvement District, Ariz., 550 P.2d 80, 82 (filed May 26, 1976); Industrial Development Authority of County of Pinal v. Nelson, 109 Ariz. 368, 509 P.2d 705 (1973). However, the title need not be a complete index to the act, and broad titles are permissible. Taylor v. Frohmiller, 52 Ariz. 211, 79 P.2d 961 (1938). 'Any provision having a natural connection with the title of the act is properly embraced in the act.' White v. Kaibab, supra, 550 P.2d at 82.

Because of the State's interest in sustaining laws enacted by our legislative branch, the burden of proving a violation of the constitutional provision is a heavy one. An act will not be held in violation of a notice requirement unless the courts are satisfied 'beyond a reasonable doubt of its unconstitutionality.' State v. Gastelum, 75 Ariz. 271, 273, 255 P.2d 203, 205 (1953). See also Board of Regents v. Sullivan, 45 Ariz. 245, 42 P.2d 619 (1935); State v. Davey, 27 Ariz. 254, 232 P. 884 (1925). The court in Davey equated the burden of showing the subject of the act is not reasonably embraced in its title with the burden of the State to convict a defendant of murder.

Our courts have consistently upheld the validity of statutory provisions which, even though the bill itself contained related additional matters not expressly recited in the title, were germane to the subjects contained in the title description. See e.g. Industrial Development Authority of County of Pinal v. Nelson, supra; In re Lewkowitz, 70 Ariz. 325, 330, 220 P.2d 229, 234 (1950) (provisions relating to lawyer discipline were sufficiently germane to a title stating only "an act relating to the state bar', . . . 'and creating a public corporation to be known as the 'State Bar of Arizona"'); Board of Regents v. Sullivan, supra, in which the court stated that 'the 'one subject' provision . . . will be given a liberal construction, and not a strained and narrow construction for the purpose of nullifying legislation.' (45 Ariz. at 253, 42 P.2d at 622).

We are aware that our Supreme Court has very recently stricken a statute as violative of § 13 of the Arizona Constitution. White v. Kaibab, supra. However, in that case the title reflected a matter totally different from the subject actually contained in the bill. The title referred to the 'formation' of improvement districts, while the bill itself referred to financing improvements after the formation had been accomplished. The only other decision invalidating legislation for violation of § 13 which has been brought to our attention is Skaggs v. State, 24 Ariz. 191, 207 P. 877 (1922), holding that provisions of a civil nature relating to bastardy were inconsistent with a title stating that the provisions related to an 'act to establish a penal code.'

No such inconsistencies appear in this case. The provision making it illegal to possess a credit card with intent to defraud in no way conflicted with the title of the bill, and was clearly germane to the subject of the original statute which, as the title stated, the bill was to amend. Hancock v. State, 31 Ariz. 389, 254 P. 225 (1927). We are not satisfied beyond a reasonable doubt that the title failed to put an interested party on adequate notice of the contents of the bill and, therefore, hold that it is constitutional.

The second question on review is whether it was error for the trial court to fail to hold a voluntariness hearing on its own motion was respect to certain statements made by the appellant to the arresting officers immediately after his arrest. The record shows that after being advised of his right to remain silent, the appellant was asked if he understood those rights and if he would voluntarily answer questions by the officers. He responded Yes to both of these questions. Thereafter, in response to questioning, the appellant stated that he had received the credit card from 'a guy down at a park near his home' and the credit card was given to him because he expressed the need for some new clothes. During the State's case in chief, these statements were presented without objection through the testimony of one of the arresting officers. Neither before nor after trial was there any request that these statements be suppressed and in fact the substance of the statements was used by defense counsel in closing argument to show that the State had failed to prove that the credit card was possessed with the intent to defraud. The appellant did not take the stand.

On appeal the appellant now asserts for the first time that the court should have Sua sponte ordered a voluntariness hearing citing Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) and State v. Owen, 96 Ariz. 274, 394 P.2d 206 (1964). Appellant argues that voluntariness was placed in question when the State placed a check mark on the omnibus hearing form indicating that there would be an issue of voluntariness of a statement made by the defendant. We do not agree that the mere check on the omnibus hearing form presented a question as to voluntariness where there was no subsequent motion to suppress brought by the appellant, there was no objection to the statements when they were presented during the trial, and where the statements themselves became the basis for the defense. Where the evidence does not raise a question as to the voluntariness of the defendant's statements, the trial judge is not required, Sua sponte, to enter into an examination outside the presence of the jury to determine the possible involuntariness of the statements. State v. Finn, 111 Ariz. 271, 528 P.2d 615 (1974).

Next, appellant asserts that the trial court erred in failing to strike the jury panel when one prospective juror stated that he had heard the name of the appellant through his employment with the police department. The dialogue referred to occurred during the voir dire of the jury panel b...