State v. Winkler, 2
| Decision Date | 28 September 1993 |
| Docket Number | CA-SA,No. 2,2 |
| Citation | 176 Ariz. 212,859 P.2d 1345 |
| Parties | The STATE of Arizona, Petitioner/Cross-Real Party in Interest, v. The Hon. Richard A. WINKLER, a Judge for the Superior Court of the State of Arizona, County of Cochise, Respondent, and George James GAUGHAN, Real Party in Interest/Cross-Petitioner. 93-0101. |
| Court | Arizona Court of Appeals |
In this special action, the State of Arizona seeks relief from the trial court's ruling in the underlying criminal action against real party in interest George James Gaughan that it would give the Recommended Arizona Jury Instruction (RAJI) on hindering prosecution, RAJI 25.12, rather than the state's requested instruction. Because we conclude that RAJI 25.12 is an incorrect statement of the law, because the question is one of statewide importance, and because the state has no adequate remedy by appeal, we accept jurisdiction and grant relief. Ariz.R.P.Spec. Actions 1 and 3, 17B A.R.S. We decline jurisdiction, however, of Gaughan's cross-petition seeking relief from the court's denial of his motion to remand for a redetermination of probable cause.
Gaughan was indicted in April 1993 on one count of hindering prosecution and one count of conspiracy to hinder prosecution. The charges arose from an automobile accident in Sierra Vista, Arizona, in which a woman was killed. According to the state's theory, Gaughan was a passenger in a car being driven by Raymond Kuehl on State Route 92. Both men had been drinking. Kuehl struck the left rear of the car driven by the deceased, causing it to leave the road and flip over. Kuehl then turned the car around, and the men drove to the house of a friend of Gaughan where they tampered with the ignition switch of Kuehl's car to make it appear as though it had been stolen. Kuehl later drove the car to another place and abandoned it.
On the day trial was to begin, counsel met with the court to confer about jury instructions. The state requested a hindering prosecution instruction based on two Colorado cases. The court observed that the requested instruction was reasonable, but ruled that it would give RAJI 25.12 instead. It then continued the trial for three months over Gaughan's objection and invited the state to file this special action. The court also denied Gaughan's motion to dismiss the case.
Because of the current posture of the case, we conclude that the state has no adequate remedy by way of appeal. A trial court's decision on jury instructions is not one of the enumerated rulings from which the state may appeal. A.R.S. § 13-4032. The state acknowledges that based on RAJI 25.12, the trial court would be required to grant Gaughan's motion for judgment of acquittal if the case proceeded to trial. An acquittal, of course, cannot be appealed by the state. Rolph v. City Court, 127 Ariz. 155, 618 P.2d 1081 (1980). The state also would have been prohibited from appealing if it had moved to dismiss the indictment. Litak v. Scott, 138 Ariz. 599, 676 P.2d 631 (1984). Because the trial court denied Gaughan's motion to dismiss, the state was left with no avenue to challenge the jury instruction ruling other than by special action.
We note, however, a concern with the trial court's invitation to the state to ask us for a ruling on the appropriate course of action for the court to take. Because our jurisdiction does not include the authority to issue advisory rulings, we believe the better practice would have been for the trial court to grant Gaughan's motion to dismiss, based on the state's concession that it could not obtain a conviction under RAJI 25.12, and the state could have appealed the dismissal, thus obviating the necessity of a special action. Such a dismissal would, of course, be without prejudice.
We turn now to the issue before us. Gaughan was charged pursuant to A.R.S. § 13-2512(A), which provides:
A person commits hindering prosecution in the first degree if, with the intent to hinder the apprehension, prosecution, conviction or punishment of another for any felony, such person renders assistance to such person.
Assistance is defined in detail in § 13-2510. RAJI 25.12, on the other hand, would instruct the jury as follows:
The crime of hindering prosecution in the first degree requires proof of the following two things:
1. The defendant acted with the intent to hinder the prosecution, apprehension, conviction, or punishment of a person charged with a felony; and
2. The defendant rendered assistance to such a person.
(Emphasis in original.) The only source...
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State v. Kelly
...Because future prosecutions under the statute will likely be affected, the matter is of statewide importance. See State v. Winkler, 176 Ariz. 212, 859 P.2d 1345 (App.1993) (granting special action relief in the face of trial court's impending use of jury instruction in criminal case erroneo......
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State v. Dawley
...of statewide importance, we accept jurisdiction and grant relief. Ariz. R.P. Special Actions 1 and 3, 17B A.R.S.; State v. Winkler, 176 Ariz. 212, 859 P.2d 1345 (App.1993) (granting the state special action relief in the face of trial court's impending use of legally erroneous jury instruct......
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