State v. Wheeler
| Decision Date | 15 June 1972 |
| Docket Number | No. 2148,2148 |
| Citation | 498 P.2d 205,108 Ariz. 338 |
| Parties | STATE of Arizona, Appellee, v. Carlos WHEELER, Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen., by Frank Sagarino, Chief Asst. Atty. Gen., and Mary Z. Chandler, Asst. Atty. Gen., Phoenix, for appellee.
Ross P. Lee, Public Defender, by Anne Kappes, Deputy Public Defender, Phoenix, for appellant.
The appellant, Carlos Wheeler, was arrested, tried by a jury and convicted of robbery and attempted rape. From the sentences imposed, he appeals.
The prosecutrix in this case was a part-time dance instructor and had been married and divorced three times. At about nine o'clock on the evening of May 15, 1969, she went to a night club called the Nite Life to keep a date with a married man. She sat down at the bar, ordered a drink, and there for the first time she met the appellant. Her date did not appear at the Nite Life during the course of the evening.
The appellant told her that he was part-owner of Phil's Steak House, a restaurant near the night club, and he invited her to see the restaurant. At about eleven o'clock they left the night club and went to the steak house, which was at that time closed for the night. They drank beer there for one and one-half to two hours. Appellant attempted to engage in sexual intercourse with the prosecutrix, but she resisted his advances. Appellant then bound her hands and legs, took her money and credit cards which she had in her purse, the keys to her automobile and left in it. Fifteen empty beer bottles were counted when the steak house was opened the next morning.
The court imposed sentences of five to six years' imprisonment in the state penitentiary on each charge. At this point in the proceedings, the appellant turned to his attorney and struck him on the chin and throat with his right fist. The sentencing judge then attempted to re-sentence the appellant, thereby increasing his punishment. Two days later, on April 3, 1970, the court caused the appellant to be brought before him and formally re-sentenced the appellant to not less than five nor more than six years on the robbery and not less than 24 nor more than 25 years on the attempted rape, the sentences to run consecutively.
On March 30, 1971, on an original application for writ of habeas corpus in this Court, we vacated the sentences and directed that the sentencing judge re-sentence the appellant, specifying which sentence should run consecutively to the other. The appellant was re-sentenced, the court correcting the sentence of attempted rape, Count 2, to provide that the sentence of 24 to 25 years was to begin at the conclusion of the sentence on Count 1.
Appellant now complains on appeal that the court's instructions on the verdicts submitted to the jury were insufficient. The court's instructions to the jury in this regard were as follows:
'We, the jury, duly impaneled and sworn in the above entitled action, upon our oaths, do find the defendant, Carlos Wheeler, guilty of the crime of robbery as charged in Count 1 of the Information.'
The second form reads: 'We, the jury, duly impaneled and sworn in the above entitled action upon our oaths, do find the defendant, Carlos Wheeler, not guilty of the crime of robbery, as charged in Count 1 of the Information.'
The third form reads: 'We, the jury, duly impaneled and sworn in the above entitled action, upon our oaths, do find the defendant, Carlos Wheeler, guilty of the crime of attempted rape, as charged in Count 2 of the Information.'
The last form reads: 'We, the jury, duly impaneled and sworn in the above entitled action, upon our oaths, do find the defendant, Carlos Wheeler, not guilty of the crime of attempted rape, as charged in Count 2 of the Information."
It is appellant's position that the jury should have been told that it must find separately that each crime was committed, arguing that the effect of the verdicts as given to the jury could have caused it to believe that upon finding the appellant guilty of either count it must find the appellant guilty of both, and that the court should have instructed the jury that it had the right to find the appellant guilty of one charge without finding him guilty of the other. In support of his position, appellant cites State v. Parra, 10 Ariz.App. 427, 459 P.2d 344 (1969).
We think it unnecessary to determine whether the court's instruction was consistent with the opinion in State v. Parra for two reasons. First, the court, at the conclusion of its instruction to the jury, stated to counsel:
'Does either counsel have any additions or corrections to the instructions or the verdicts as read?'
Counsel for the defendant: 'I have no objections.'
Counsel for the State: 'The State has none, Your Honor.'
The claim of error now urged is for the first time raised on appeal. Where error is asserted in instructions for the first time on appeal and the trial court was not given an opportunity to correct the asserted error, it will be considered as waived. State v. Coward, 108 Ariz. 270, 496 P.2d 131, 132 (1972). Moreover, the court instructed the jury:
'If you have any questions concerning the verdicts or instructions, write the question on a piece of paper and give it to the bailiff who in turn will give it to me.'
We think where, as here, alternative verdicts of guilty and not guilty on each offense were submitted, the jurors were not so obtuse or witless as to believe that they were compelled to return verdicts of guilty on both crimes if they did not believe defendant was guilty of each. Since the court specifically invited the jury to communicate with it if it had any doubts concerning the verdicts, and no communication was made to the court before the verdicts were returned, we are reinforced in our belief that the jury was not in fact confused.
The reporter's transcript of the court's instruction shows that the jury was also told:
'* * * if you find beyond a reasonable doubt that the defendant committed the crime charged in the Information, then you should find the defendant guilty.
If you do not find beyond a reasonable doubt that the crime or crimes charged in the Information were committed by the defendant, then you should find the defendant not guilty.'
We think it highly improbable that the failure to include the plural 'crimes' in the first sentence quoted above misled the jury, and that it is a mere technical error of a non-prejudicial nature. Here, again, the claimed error was raised for the first time on appeal.
The appellant further complains that the court should not have instructed the jury without request by the appellant on his failure to testify in the case. The jury was instructed:
'It is the right of a defendant in a criminal case that he may not be compelled to testify.
You must not draw any inference of guilt from the fact that he does not testify nor should this fact be discussed by you or enter into your deliberations in any way.'
This question was settled adversely to appellant in our decision in State v. McAlvain, 104 Ariz. 445, 447--448, 454 P.2d 987, 989--990 (1969), cert. den. 396 U.S. 1023, 90 S.Ct. 597, 24 L.Ed.2d 516 (1970). There, the question now urged was extensively discussed and both the Arizona decision and decisions from other jurisdictions were cited and quoted. We concluded:
'It is our position that it is better practice for the trial judge to give the instruction only if it is requested by the defendant, but it is not reversible error if the instruction is given without request.' 104 Ariz. at 448, 454 P.2d at 990.
We see no reason why we should not adhere to our recent pronouncement.
Finally, the appellant raises two claims of error which question the right of the trial court to increase the term of imprisonment after once having imposed sentence. He first urges that the subsequent attempts to increase the punishment constitute double jeopardy, a violation of the...
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Hines v. Com.
...S.Ct. 984, 25 L.Ed.2d 138 (1970). "It is certainly not reversible error if the instruction is given without request. State v. Wheeler, 108 Ariz. 338, 498 P.2d 205 (1972); State v. McAlvain, supra. In a joint trial, a court must give the instruction to a jury upon request of one codefendant,......
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...90 S.Ct. 984, 25 L.Ed.2d 138 (1970). It is certainly not reversible error if the instruction is given without request. State v. Wheeler, 108 Ariz. 338, 498 P.2d 205 (1972); State v. McAlvain, supra. In a joint trial, a court must give the instruction to a jury upon request of one codefendan......
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...is violative of the double jeopardy provisions of the Constitution. In making its argument, the defendant relies on State v. Wheeler, 108 Ariz. 338, 498 P.2d 205 (1972). In that case, the trial court imposed sentences of five to six years on each charge. The defendant apparently turned to h......
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