State v. Verdugo, 3058-3
| Decision Date | 15 October 1979 |
| Docket Number | No. 3058-3,3058-3 |
| Citation | 602 P.2d 472,124 Ariz. 91 |
| Parties | STATE of Arizona, Appellee, v. Daniel Salas VERDUGO, Appellant. |
| Court | Arizona Supreme Court |
John A. LaSota, Jr., Former Atty. Gen., Robert K. Corbin, Atty. Gen. by William J. Schafer, III, and Gerald R. Grant, Asst. Attys. Gen., Phoenix, for appellee.
John W. Rood, Phoenix, for appellant.
Appellant Daniel Salas Verdugo appeals a conviction for contempt which arose out of his refusal to testify during the murder trial of Robert Robin. We assume jurisdiction pursuant to Rule 47(e)(5), Supreme Court Rules, 17A A.R.S.
The appellant had been convicted of first-degree murder for the killing of the proprietor of a convenience market during a robbery. Appellant appealed his conviction which this court affirmed after reducing the sentence from death to life imprisonment without possibility of parole for 25 years. State v. Verdugo, 112 Ariz. 288, 541 P.2d 388 (1975).
Robert Robin, a codefendant with appellant, was tried separately, found guilty of first-degree murder and sentenced to life imprisonment. For reasons not pertinent to this appeal, the case was reversed and remanded for a new trial. State v. Robin, 112 Ariz. 467, 543 P.2d 779 (1975). Robin's defense counsel, during the second trial, called appellant to the witness stand to question him about the robbery and subsequent murder. Asserting his right not to incriminate himself, appellant refused to answer 18 questions, despite the trial court's repeated directions to him to answer the questions.
Based upon these refusals the trial judge found appellant guilty of 18 contempts and sentenced him to one month in jail for each. The sentences were to run consecutively to each other and to the sentence for murder. This court in Cause No. 3058-2 by Memorandum Decision dated March 2, 1977, reversed and remanded for a trial by jury.
Appellant was tried twice for contempt by a jury, the first trial ending in a mistrial. The second trial resulted in appellant's conviction of 18 contempts. Appellant was again sentenced to confinement for one month on each count to run consecutively to each other and to the murder conviction.
Appellant raises three issues on appeal:
1) Did appellant have a right pursuant to the fifth amendment to the Constitution of the United States and Article 2 § 10 of the Constitution of Arizona not to testify to facts which might tend to incriminate him despite his conviction for murder and its subsequent affirmance by this court?
2) Is refusal to answer questions civil or criminal contempt; if criminal, should appellant have been prosecuted under § 12-861 Et seq.?
3) Can the state prosecute contempt where immunity was never offered?
To invoke the right not to incriminate one's self, derived from both the fifth amendment of the Constitution of the United States as held applicable to the States by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), and Article 2 § 10 of the Constitution of Arizona, the danger of prosecution must be "real and appreciable" and not "imaginary and unsubstantial." Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896); Rogers v. U. S., 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951); Thoresen v. Superior Court, 11 Ariz.App. 62, 461 P.2d 706 (1970).
While courts that have considered the issue generally have held that a witness may not be compelled to testify until after sentencing and the time for appeal as of right has expired, See McCormick, Evidence § 121; 8 Wigmore, Evidence § 2279, the issue of a witness' possible collateral attack on his conviction in relation to the self-incrimination privilege is one of first impression in this jurisdiction.
The Pennsylvania Supreme Court in Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1977) examined post-conviction collateral relief and the self-incrimination privilege. The Pennsylvania court held that the possibility of collateral relief is not so remote in all cases as to warrant a per se rule. The court went on to hold that 372 A.2d at 781.
However, this test was questioned by the same court a year later in Commonwealth v. Strickler, 481 Pa. 579, 393 A.2d 313 (1978). In that case, the defendant was convicted of being an accessory after the fact to an armed robbery. He took no appeal from the judgment but when called by the state to testify against a principal in the robbery he refused to testify based on the self-incrimination privilege, asserting that he was preparing a petition for post-conviction relief. The trial court found him guilty of direct criminal contempt and defendant appealed.
The supreme court cited Commonwealth v. Rodgers, supra, in affirming Strickler's conviction for contempt, saying that "even assuming" that a per se rule is not necessary and that the trial court must decide each case on its own facts, the trial court had not erred in overruling Strickler's claim of privilege for not only had he not filed a petition for post-conviction relief but at the time of the principal's trial Strickler had completely served his sentence. Based on the facts of the case, the Pennsylvania Supreme Court held that Strickler had no reasonable basis to fear self-incrimination.
In the instant case, appellant also had no reasonable basis to fear self-incrimination in a new trial. Despite the fact that this court affirmed appellant's conviction some four years ago, no petition for post-conviction collateral relief had been filed at the time of the contempt. Appellant's attorney testified at appellant's contempt trial that he had advised him about the possibility of using Federal habeas corpus to attack his murder conviction, but the attorney also told him that chances for success on post-conviction relief were only 15 to 30 percent. The matter was not pursued further.
Given these circumstances, we find that the danger of prosecution is "imaginary and unsubstantial" within the meaning of Brown v. Walker, supra, and the self-incrimination privilege is not applicable.
Appellant next argues that refusal to answer questions is civil contempt, not criminal, and Rule 33, Rules of Criminal Procedure, 17 A.R.S., is not applicable. Rule 33.1 provides that:
"Any person who wilfully disobeys a lawful writ, process,...
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Rowe v. Superior Court, No. 17718.
...testimony relating to the case against Roberts. In this case, it is a distinction without a difference. Cf. State v. Verdugo, 124 Ariz. 91, 94, 602 P.2d 472 (1979) ("Although [the contemnor's] refusals to answer propounded questions were contemptuous, his actions constituted only one contem......
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State v. Fisher
...when the public interest would be served by a grant of immunity." State v. Axley, supra, at 388, 646 P.2d at 273; State v. Verdugo, 124 Ariz. 91, 602 P.2d 472 (1979); State v. Cookus, 115 Ariz. 99, 563 P.2d 898 (1977); A.R.S. § 13-4064. As we concluded in State v. Buchanan, 110 Ariz. 285, 2......
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State v. Jeffers, 4253
...a matter for prosecutorial discretion to decide when the public interest would be best served by a grant of immunity. State v. Verdugo, 124 Ariz. 91, 602 P.2d 472 (1979); State v. Swinburne, 116 Ariz. 403, 569 P.2d 833 (1977); State v. Buchanan, 110 Ariz. 285, 518 P.2d 108 (1974). Neverthel......
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State v. Axley
...of prosecutorial discretion to decide when the public interest would be best served by a grant of immunity." State v. Verdugo, 124 Ariz. 91, 94, 602 P.2d 472, 475 (1979); State v. Cookus, 115 Ariz. 99, 103, 563 P.2d 898, 902 (1977). Because his conviction could have been, and was eventually......