State v. Valencia
| Decision Date | 15 October 1979 |
| Docket Number | No. 3989-2,3989-2 |
| Citation | 602 P.2d 807,124 Ariz. 139 |
| Parties | STATE of Arizona, Appellee, v. Frank James VALENCIA, Appellant. |
| Court | Arizona Supreme Court |
Robert K. Corbin, Atty. Gen. by William J. Schafer, III and Barbara A. Jarrett, Asst. Attys. Gen., Phoenix, for appellee.
Thomas G. Martin, Tucson, for appellant.
Defendant-appellant, Frank James Valencia, was adjudged guilty of murder in the first degree on April 13, 1977 and, after the requisite aggravation/mitigation hearing, was sentenced to death. Defendant appealed both the conviction and sentence. This court affirmed the conviction, but vacated the death sentence pursuant to State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), and remanded for resentencing. State v. Valencia, 121 Ariz. 191, 589 P.2d 434 (1979). Appellant again received the death penalty from which he now appeals.
One issue raised by the defendant concerns a conversation had by the trial judge in chambers with the brother of the victim, Sgt. Robert Olsen, a Tucson police officer. On March 12, 1979, the afternoon prior to the scheduled resentencing, defense counsel learned of this conversation. At the subsequent aggravation/mitigation hearing, in response to inquiry by defense counsel, the court noted for the record:
I don't recall exactly when this happened, maybe two weeks ago. Robert Olsen came into my office, identified himself as (the victim's) brother and asked to speak to me. We went into my office whereupon he indicated that he was there to let me know what the family's feelings were about the possible sentence that was going to be imposed . . . .
He indicated that the family's feelings were that the court should impose the death penalty. Sgt. Olsen also indicated that it was his feeling that the defendant was not there . . . simply to rob (the victim), and Mr. Olsen alluded to the rapes which defendant had been charged with and had been found guilty.
The judge further stated that he was noncommittal with Sgt. Olsen, indicating only that it was a difficult decision and that the court would consider all facets of the matter. The record also indicates that the court informed Sgt. Olsen that the only evidence of the defendant's intentions on the night of the homicide disclosed that the victim was shot while defendant held her at gunpoint and she quickly turned around.
Appellant contends that the trial judge, having talked with the victim's brother, should have disqualified himself from presiding over the resentencing hearing. We agree.
The ABA Code of Judicial Conduct, Canon 3(A)(4) indicates that a judge should ". . . neither initiate nor consider Ex parte or other communications concerning a pending or impending proceeding." Moreover, Canon 2 mandates that a judge should avoid even the appearance of impropriety in all of his activities. See also People v. District Court in and for Third Judicial District, Colo., 560 P.2d 828 (1977); Wiedemann v. Wiedemann, 228 Minn. 174, 36 N.W.2d 810 (1949); DeCamp v. Good Samaritan Hospital, 66 A.D.2d 766, 410 N.Y.S.2d 671 (1978); Chicago, Milwaukee, St. Paul & Pacific R.R. v. Washington State Human Rights Commission, 87 Wash.2d 802, 557 P.2d 307 (1977). Such a rule is a requisite to the orderly administration of justice in any judicial system.
We note that A.R.S. § 13-703, which provides for a sentence of death, contains the following C. . . . Any information relevant to any of the mitigating circumstances set forth in subsection G of this section may be presented by either the prosecution or the defendant, regardless of its admissibility under the rules governing admission of evidence at criminal trials; But the admissibility of information relevant to any of the aggravating circumstances set forth in subsection F of this section shall be governed by the rules governing the admission of evidence at criminal trials. (Emphasis added.)
The foregoing highlights the sensitivity required in the receipt of information to be used in determining whether the supreme penalty should be imposed. We hesitate to rebuke the learned trial judge for a momentary lapse, but the fundamental rights of the defendant to a fair hearing have been impinged, and the spirit and letter of the statute above have not been followed.
The state urges that the manner in which defendant's counsel handled the matter amounted to a waiver of defendant's right to a change of judge. Defendant's counsel, after discussing the propriety of the in-chambers conference on the record, asked the judge to proceed to...
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