State v. White
| Decision Date | 02 May 1977 |
| Docket Number | No. 3644,3644 |
| Citation | 564 P.2d 888,115 Ariz. 199 |
| Parties | STATE of Arizona, Appellee, v. Roger Lee WHITE, Appellant. |
| Court | Arizona Supreme Court |
Bruce E. Babbitt, Atty. Gen., William J. Schafer, III, Chief Counsel, Crim. Div., Diane M. DeBrosse, Asst. Atty. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender, Paul J. Prato, Deputy Public Defender, Phoenix, for appellant.
Appellant, Roger Lee White, was convicted of armed robbery in violation of A.R.S. §§ 13--641, 13--643, 13--138, 13--139 and 13--140 and sentenced to the Arizona State Prison for not less than fifteen years nor more than thirty years. On the basis of this conviction the trial court revoked appellant's probation granted for a previous conviction and sentenced appellant to not less than one year nor more than two and one-half years to run concurrently with the sentence for armed robbery. Appellant made a timely appeal from both judgments and sentences. We take jurisdiction pursuant to 17A A.R.S., Supreme Court Rules, rule 47(e)(5). The judgment of the trial court in the armed robbery conviction is affirmed. The probation revocation is vacated.
On November 28, 1973, appellant pled guilty to attempted burglary, second degree, open-end. On December 21, 1973 the trial court found appellant guilty and suspended imposition of sentence, placing appellant on probation for a period of two years to date from December 21, 1973. A petition to revoke probation was filed on March 6, 1974. The court denied the petition on August 5, 1974 and reinstated appellant on probation under the same terms and conditions previously imposed with the additional term that he be confined in the Maricopa County Jail for three months beginning July 8, 1974.
On July 24, 1975 appellant and another suspect were charged in a complaint with armed robbery in violation of A.R.S. §§ 13--641 and 13--643. (Two other charges listed in the complaint were later dismissed.) Appellant was arraigned on August 11, 1975, and his probation officer filed a petition to revoke probation on that date also. Trial was set for September 30, 1975. At the preliminary revocation hearing on August 19, 1975, the trial court decided the matter of the final revocation hearing would be held in abeyance pending the outcome of the armed robbery charge.
Due to a number of continuances, to be discussed infra, appellant and a codefendant (not a party to this appeal) were tried on December 9, 1975. After a jury verdict of guilty, the court entered judgment on January 30, 1976 and sentenced appellant. The court also revoked appellant's previous probation and sentenced him for a term to run concurrently with the robbery sentence.
Appellant raises five issues on appeal:
1. Did the trial court commit reversible error by denying appellant's motion to dismiss for violation of the speedy trial rules?
2. Did prosecutorial misconduct deny appellant a fair trial?
3. Did the trial court's comments to the jury prejudice appellant's cause?
4. Did the trial court commit reversible error by refusing to allow appellant to comment upon the privilege against self-incrimination and by denying severance?
5. Was the trial court without jurisdiction to revoke appellant's probation?
Appellant argues the trial court erred in computing his last day for trial under rule 8, 1 17 A.R.S. Rules of Criminal Procedure. Appellant also argues the court erred in excluding under rule 8.4(c) the seven day delay due to a judicial conference at which the Arizona Supreme Court required attendance by all trial judges. Appellant argues these alleged time limit violations require reversal of his conviction. We find no violation of rule 8.
Appellant was arraigned on August 11, 1975 making his last trial day October 10, 1975. On September 30, 1975, the date originally set for trial, appellant's co-defendant was granted a motion to continue the trial from that date until October 29, 1975 and those 29 days were properly excluded in accordance with rule 8.4(d) and (e). 2 Then appellant's last day for trial was November 10, 1975. (Numerically the date was November 8 but since that was a Saturday, pursuant to rule 1.3, Monday, November 10, became the last trial day).
On October 28, the trial court on its own motion reset the trial date to November 10, 1975, but made no exclusion. On November 7, the trial court granted the state's motion to continue the trial. As to appellant, the court excluded 24 days from November 8 to December 2, 1975, although as to his codefendant the court excluded 22 days from November 10 to December 2, 1975. Trial was set for December 2, 1975. At that time, since 24 days were excluded as to appellant, his last trial day was December 4, 1975.
On December 2, 1975 the trial court found that appellant's last trial day was December 4, 1975 (as was his codefendant's who had been arraigned on a later date). It is this finding which appellant alleges to be error. From the foregoing chronology, it is clear that December 4, 1975 was correct. We find no violation of rule 8.2.
Appellant's next allegation of a rule 8 violation involves the trial court's decision on December 2, 1975 to continue the trial to December 9, 1975. A judicial conference had been set for the last trial day, December 4, 1975 and this Court had ordered all Superior Court Judges to attend. For this reason the court reset the trial date to December 9, 1975 and excluded the period from December 2 through December 9, 1975 pursuant to rule 8.
Appellant argues that this exclusion was not proper under rule 8.4(c). 3 We disagree.
Under the present rule 8.4(c), as amended 1975, if a suspension of the rules is necessitated by a congestion of the trial calendar and extraordinary circumstances, application must be made to the Chief Justice of the Arizona Supreme Court, rule 8.4(c), Rules of Criminal Procedure, as amended 1975. Under the old rule the finding of extraordinary circumstances and congestion was made by the trial court and the Chief Justice was promptly notified.
Under the facts of this case, and limited only to the Rules of Criminal Procedure (1973), we do not believe the trial court abused its discretion in finding that the Judicial Conference of the State of Arizona which ordered all trial judges to be in attendance was, in fact, an extraordinary circumstance causing a congestion of the trial calendar which, in turn, necessitated a five day delay. We find no violation of the speedy trial requirements.
For the foregoing reasons we hold the trial court did not err in denying appellant's motion to dismiss for violation of the speedy trial rules.
Appellant alleges two instances amounting to prosecutorial misconduct denying him a fair trial. One instance occurred when the State was presenting its case and involved evidence not admitted. The other involved statements made during closing argument. We find no reversible error.
The record reveals that the prosecutor displayed within view of the jury items not introduced into evidence. Appellant made proper objection and the court directed the prosecutor to take the items to the clerk's desk. Instead, the credit cards remained, albeit face down, on the counsel's table approximately six feet from the front row of the jury. Appellant never requested a curative instruction admonishing the jury to disregard those items. Appellant did, however, more for mistrial after the State rested its case and the trial court denied this motion.
The rule in Arizona is that ordinarily alleged prosecutorial misconduct must be objected to and a curative instruction requested because then the trial court has a chance to cure the error. Rutledge v. State, 41 Ariz. 48, 15 P.2d 255 (1932). Appellant's counsel argues that no instruction could cure this error and therefore the lack of a request should not constitute waiver here. We disagree. It is true that reversible error may be found despite lack of objection and request for instructions when it appears affirmatively from the circumstances of the trial that the conduct of the prosecutor has been such that it must be presumed to have resulted in a miscarriage of justice. Rutledge v. State, supra. Such is not the case here. The record is insufficient to support a conclusion that the prosecutor acted in bad faith. Also, there is no affirmative evidence in the record to show sufficient prejudice to appellant so that no possible instruction could cure the error. In fact, there is no showing that the jury actually viewed the items closely enough to read what they said. There was no reversible error.
Appellant's second contention regarding prosecutorial misconduct involves alleged comments during closing argument on counsel's personal belief as to appellant's guilt and alleged comments on the truth of the State's witnesses' testimony. The argument is based on the following comments:
'This jury has seen form in action through testimony of witnesses, bits and pieces.
'On those bits and pieces, you are going to be asked to convict Mr. White and Mr. Anderson, because every bit of that testimony, ladies and gentlemen, is true.'
'We don't deal with percentages.
'We don't remember everything the same way, except the fact that Mrs. Silvio was robbed and those two did it.'
We find these statements range from unwise word choice to mildly improper but none is so improper or prejudicial as to require reversal. The statement that the testimony...
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