State v. Whitney, CR-87-0258-AP

• Decision Date: 12 January 1989
• Docket Number: No. CR-87-0258-AP,CR-87-0258-AP
• Citation: 159 Ariz. 476,768 P.2d 638
• Parties: STATE of Arizona, Appellee, v. Gerald Arthur WHITNEY, Appellant.
• Court: Arizona Supreme Court

Page 638

768 P.2d 638

159 Ariz. 476

STATE of Arizona, Appellee, v. Gerald Arthur WHITNEY, Appellant.

No. CR-87-0258-AP.

Supreme Court of Arizona, In Banc.

Jan. 12, 1989.

Robert K. Corbin Atty. Gen. by William J. Schafer, III, Chief Counsel, Criminal Div., and Susanna C. Pineda, Asst. Atty. Gen., Phoenix, for appellee.

Dean W. Trebesch, Maricopa County Public Defender by James H. Kemper, and Garrett W. Simpson, Deputy Public Defenders, Phoenix, for appellant.

CAMERON, Justice.

I. JURISDICTION

Defendant, Gerald Arthur Whitney, appeals his convictions for one count of kidnapping, a Class 2 felony, A.R.S. § 13-1304 and one count of aggravated assault, a Class 3 felony, A.R.S. § 13-1204(A)(2), (B). Because the aggravated assault was found to be a "dangerous nature" offense and committed while defendant was on parole, the trial court sentenced defendant to life imprisonment. A.R.S. § 13-604.02(A). He was also sentenced to 15.75 years imprisonment for the kidnapping conviction. A.R.S. § 13-604.02(B). The two terms were ordered to run concurrently with one another, but consecutively to the sentence imposed in another case in Maricopa County Cause No. CR-137394. A.R.S. § 13-604.02. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13-4031 and -4033.

II. ISSUES

We address the following issues:

A. Was Count II of the information (aggravated assault) duplicitous and if so, was defendant prejudiced?

B. Did the trial court abuse its discretion when it permitted the state to amend the information to allege that the aggravated assault charge was a "dangerous" offense?

C. Did the trial court err when it found defendant's statements to the police were voluntarily made and admissible at trial?

D. Did the trial court abuse its discretion when it found statements by "Francisco Cano," "Ruben Cano" and "Geraldo Perez" admissible under the hearsay exceptions of Rules 803(2) and 804(B)(5) OF THE ARIZONA RULES OF EVIDENCE¹?

E. Did the trial court abuse its discretion in ruling that defendant's prior convictions were admissible for impeachment purposes?

F. Did the trial court err in removing the question of the validity of the prior convictions from the jury?

G. Did the trial court err in its response to the question raised by the jury?

H. Did the trial court err in denying defendant's motion for a new trial?

I. Are minute entries of defendant's sentences at variance with the sentence imposed by the judge?

J. Did the trial court err in failing to give defendant credit for 144 days of pretrial incarceration?

III. FACTS AND PROCEDURAL BACKGROUND

On 26 April 1987, Donna, age 16, and Denise, age 17, were hitchhiking in the area of Van Buren and 27th Avenue in Phoenix, Arizona. They were trying to get to Tempe, Arizona, to see Denise's boyfriend. Defendant stopped and agreed to give them a ride. While on the freeway toward Tempe, defendant began to rub his finger on Donna's leg. Donna told him to stop and moved closer to Denise. Defendant exited the freeway at 7th Street. The girls tried to get out of the vehicle when it slowed at a traffic light, but were unable to do so because defendant turned and accelerated. The girls asked defendant to pull over, and he did so at the intersection of University and 7th Street. The girls got out of the vehicle and began running toward 7th Street. Both girls turned around and saw the defendant drive his truck toward them and "peel his tires." Although they tried to get away from him, defendant kept maneuvering his vehicle toward them. The girls testified that at one point he was about three feet behind them and was trying to run over them.

When Donna no longer heard the truck, she stopped and yelled to Denise that she could not run anymore. She turned around to look for defendant. He was directly behind her. He grabbed her arms and pinned them behind her back. He pulled her backwards stating that she was going with him. When she tried to fight back, defendant put his arm around her throat and began to choke her. Meanwhile, Denise tried to stop a car by jumping on its hood. While Denise was on the hood, another car stopped and three men got out. Defendant then jumped in his pickup and drove away with the three men in pursuit.

Department of Public Safety Officer Michael Bonin testified at trial that he was sitting in his parked police vehicle when he saw a vehicle heading north on 7th Street lock its brakes and come to a stop in the left-hand turn lane. The three men ran up to his car shouting that "somebody may have possibly been raped" and that "somebody [had] a girl in a headlock" and that they had been following the suspect. Officer Bonin then headed south on 7th Street and found Donna "curled up on a park bench." As he approached her, he observed that she was "very upset" and "crying." By this time, the three men arrived at the scene. They gave Officer Bonin a description of the vehicle and its license number. He ran the plate number on his radio and found it belonged to a 1986 Isuzu pickup. When the Phoenix Police officers arrived on the scene, Officer Bonin returned to his patrol. As he approached the freeway, he saw a vehicle matching the description given by the men and eventually stopped it at 15th Avenue and Broadway.

When Officer Michael Polombo arrived at the scene at 7th Street, he spoke with the three men who were "very excited" and "anxious" and "all talking at once." Officer Polombo had to separate them and talk to them one at a time to find out what happened. They described the assailant. Officer Polombo also took their names and addresses. He then went to 15th Avenue and Broadway where he dusted the defendant's vehicle for fingerprints. He found prints that were later identified as one of the victim's.

Defendant's version of what happened was that he had picked up the girls and was heading toward Tempe on the freeway when one of them asked him to exit. He did and when he got to University and 7th Street he said the girls got out and began to argue. When he asked them what was "going on," they swore at him, and he got back into his truck and left. From jury verdicts and judgments of guilt and sentences thereon, defendant appeals.

IV. QUESTIONS

A. Duplicitous Information

Defendant argues that Count II of the information is duplicitous in that it alleges that defendant "intentionally placed DONNA ... AND/OR DENISE ... in reasonable apprehension of imminent physical injury...."

The law in Arizona requires that each offense must be charged in a separate count. State v. Axley, 132 Ariz. 383, 392, 646 P.2d 268, 277 (1982); Ariz.R.Crim.P. 13.3(a), 17 A.R.S. An indictment which does not comply with Rule 13.3 because it charges separate crimes in the same count is duplicitous. Baines v. Superior Court, 142 Ariz. 145, 151, 688 P.2d 1037, 1043 (App.1984). Duplicitous indictments are prohibited because they fail to give adequate notice of the charge to be defended, they present a hazard of a non-unanimous jury verdict, and they make a precise pleading of prior jeopardy impossible in the event of a later prosecution. Wong Tai v. United States, 273 U.S. 77, 81, 47 S.Ct. 300, 301, 71 L.Ed. 545 (1927); Spencer v. Coconino County Superior Court, Div. 3, 136 Ariz. 608, 610, 667 P.2d 1323, 1325 (1983).

However, as our court of appeals has noted:

The fact that one of the elements of the crime alleged is a separately indictable offense does not render the indictment duplicitous. In this respect, the indictment is no different than an indictment under the felony-murder statute.

Baines, 142 Ariz. at 151, 688 P.2d at 1043 (citing A.R.S. § 13-1105(A)(2)).

In this case, defendant was charged with one count of aggravated assault based on his pursuit of the two girls with his pickup truck. Even though the effect of his actions was an assault on both of the girls, the count in question is predicated on a single act. We have noted:

[W]here numerous transactions are merely parts of a larger scheme, a single count encompassing the entire scheme is proper.

State v. Via, 146 Ariz. 108, 116, 704 P.2d 238, 246 (1985), cert. denied, 475 U.S. 1048, 106 S.Ct. 1268, 89 L.Ed.2d 577 (1986) (citing United States v. Zeidman, 540 F.2d 314 (7th Cir.1976)).

We also note that even if the count was duplicitous, it could be cured by a proper instruction:

"[A] duplicitous ... indictment is remediable by the court's instruction to the jury particularizing the distinct offense charged in each count of the indictment."

State v. Axley, 132 Ariz. 383, 392, 646 P.2d 268, 277 (1982) (quoting United States v. Robinson, 651 F.2d 1188, 1194 (6th Cir.), cert. denied, 454 U.S. 875, 102 S.Ct. 351, 70 L.Ed.2d 183 (1981).)

In the instant case, the instruction stated:

In order for the second count of aggravated assault to be proven, the following two things must be shown:

1. The defendant, Gerald Arthur Whitney, committed an assault on Donna ... and/or Denise....

2. The defendant used a dangerous instrument in committing the assault.

Proof of an assault is shown by proving the defendant intentionally put Donna ... and/or Denise ... in reasonable apprehension of immediate physical injury.

From this instruction, the jury had to find that the defendant's action in chasing the girls with his pickup was one aggravated assault. Also, the defendant's ability to plead prior jeopardy in a subsequent prosecution was not hindered in any way. The record is clear that he was convicted for his single act of chasing the two girls. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

Neither was the defendant denied an essential right to his defense. The defendant's defense was that the offenses charged never took place and that the victims merely fabricated their stories. We find no prejudice to the defendant.

B. Amendment of the Information

On 17 August 1987, the day of the trial, the court heard pretrial motions. The trial court indicated to the state that its allegation lacked language...