State v. Werring, 2828
| Decision Date | 13 June 1974 |
| Docket Number | No. 2828,2828 |
| Citation | 111 Ariz. 68,523 P.2d 499 |
| Parties | STATE of Arizona, Appellee, v. damon Carl WERRING, Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen., by Frank T. Galati, Asst. Atty. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender, by John Foreman, Deputy Public Defender, Phoenix, for appellant.
This is an appeal from a verdict and judgement of guilty of the crime of robbery and the resulting sentence of five to fifteen years in prison.
Since it is apparent that this case must be reversed, we will consider only the principal issue. For this purpose, the facts of the crime are irrelevant; it is the conduct of the judge to which our attention must be directed.
At the conclusion of the case, after the jury had been instructed and had been deliberating for about twenty minutes, the jurors sent to the courtroom a slip of paper containing three questions. The judge called the prosecutor and defense counsel into his chambers. The latter asked to see the written questions. The judge refused but read the questions to the attorneys and at the same time refused to have a court reporter or clerk present and made no reference to the event in his minute entries. The judge then entered the jury room and, upon his return, advised counsel that in addition to answering the questions on the slip, some of the jurors asked questions to which the judge orally responded! A few minutes later, the jury returned a verdict of guilty. At the time the judge entered the jury room, no one accompanied him; neither the defendant, the attorneys, the clerk, nor a court reporter. Although the record on appeal reflects this series of events only in defendant's motion for a new trial, the state doesn't deny the occurrences but merely tries to minimize the prejudicial effect.
Defense counsel filed a motion for a new trial in combination with his attempt to make a record. The judge indicated that the motion would be denied and that he would not listen to any argument, but that counsel could make his argument for the record by doing it before the court reporter in the court's absence! In the motion for a new trial, defense counsel stated that a record should be made, and he put in the motion his best recollection of the above events. This included a claim that the court had erred in commenting on the evidence after the jury had commenced its deliberations, in refusing to let...
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Swoopes v. Ryan
...of the identification." [doc. # 142, p. 9] In support of this claim, Swoopes cites Rushen v. Spain, 464 U.S. 114 (1983) and State v. Werring, 523 P.2d 499 (1974). [doc. # 119, p. 7]The gravamen of Swoopes' claim is not immediately apparent. Rushen and Werring hold that the due process claus......
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