State v. Yanich

• Decision Date: 19 November 1973
• Docket Number: No. 2275,2275
• Citation: 516 P.2d 308,110 Ariz. 172
• Parties: The STATE of Arizona, Appellee, v. George YANICH, Jr., Appellant.
• Court: Arizona Supreme Court

Page 308

516 P.2d 308

110 Ariz. 172

The STATE of Arizona, Appellee, v. George YANICH, Jr., Appellant.

No. 2275.

Supreme Court of Arizona, In Banc.

Nov. 19, 1973.

Rehearing Denied Jan. 8, 1974.

Gary K. Nelson, Atty. Gen., by Peter M. Van Orman and Richard Klauer, Asst. Attys. Gen., Phoenix, for appellee.

Sherman R. Bendalin, Phoenix, for appellant.

CAMERON, Vice Chief Justice.

This is an appeal from jury verdicts and judgments of guilt to the crimes of offering to sell marijuana, § 36--1002.07 A.R.S., as amended 1961, and sale of a dangerous drug, to wit: LSD, § 32--1964(A)(7) and § 32--1975 A.R.S., as amended 1967, together with concurrent sentences of not less than six years nor more than ten years on each count.

The defendant raises the following questions on appeal:

1. Is the Arizona statute regarding marijuana unconstitutional because it classifies marijuana as a narcotic drug?

2. Was the defendant denied a right to speedy trial?

3. Was the defendant denied his right to represent himself by the actions of the administrator of the Maricopa County Jail in refusing to allow the defendant access to law books, telephone, witnesses, and in interfering with the private papers of the defendant concerning the conduct of the trial?

4. Did the trial court commit reversible error by not giving defendant's requested instruction regarding agency relationship?

5. Did the court abuse its discretion in not granting defendant's motion for new trial?

6. Is the detainer placed by the State of California valid?

The facts necessary for a determination of this matter on appeal are as follows. In December of 1968, as undercover agent of the Phoenix Police Department purchased ten tablets of LSD and made arrangements to purchase a kilo of marijuana from the defendant. The officer paid $50 for the tablets and turned over $110 for the marijuana. The marijuana was not delivered and the money was returned. On 16 January 1969, a criminal complaint was filed charging the defendant and two other codefendants with the crimes of offering to sell marijuana and sale of dangerous drugs. The defendant was arrested in Nevada in January of 1969 on another charge. The defendant fought extradition and the proceedings were dismissed in Nevada on 30 July 1969. On 3 April 1970, defendant was arrested in California pursuant to the instant criminal complaint. Defendant fought extradition and arrived in Arizona on 13 June 1970. After a preliminary hearing at which time defendant was represented by counsel, the defendant was held to answer. In the Superior Court the defendant moved that his attorney be discharged and that he be allowed to proceed in propria persona. The motion was granted and the minute entries reflect:

'IT IS ORDERED appointing the Public Defender to aid, assist and advise defendant in the preparation for trial and trial on this matter.

'In reference to the use of the law library and the particular books named in the Motion,

'IT IS ORDERED taking this matter under advisement and the Court will have the Public Defender contact defendant in reference to the books.'

Later, pursuant to further motion of the defendant, the court directed:

'The Court directs the Public Defender to furnish defendant the essential material and contact witnesses in preparation for trial and trial.

* * *

* * *

'IT IS ORDERED defendant's Motion for Law Books is denied, subject to the Public Defender's consultation with the defendant and what they feel is necessary for the preparation of the case.'

Further motions were made by defendant concerning the restrictions being placed upon him by the jailors which the court denied, though the court did order:

'* * * Deputy Public Defender Oral Tucker has advised the Court that he will personally see that the Law books requested are furnished to defendant and IT IS ORDERED that the Sheriff shall not interfere with defendant's use of said books in preparation for his trial.'

Defendant also asked and was granted a continuance of the trial date from September of 17 November 1970. From verdicts and judgments of guilt, sentences, and denial of motions for new trial, defendant appeals.

IS THE ARIZONA MARIJUANA STATUTE UNCONSTITUTIONAL?

Defendant first contends that § 36--1002.07 A.R.S. is unconstitutional as a violation of the equal protection clause of the United States Constitution in that 'to classify marijuana as an addictive drug flies in the face of the vast weight of medical knowledge on the subject.' In rejecting a similar contention we have stated:

'The legislative intent in this State was to proscribe the use of marijuana, not to scientifically categorize it according to its composition and effect, and we believe there was a reasonable basis for the classification of marijuana with the narcotic drugs rather than the dangerous drugs.' State v. Wadsworth, 109 Ariz. 59, 63, 505 P.2d 230, 234 (1973).

DENIAL OF RIGHT TO SPEEDY TRIAL

Defendant next contends that he was denied his right to speedy trial. We disagree. We have stated:

'The United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), set out the criteria by which the speedy trial right is to be judged:

'* * * The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed. (footnote omitted).' 407 U.S. at 530, 92 S.Ct. at 2191.

'Although not excluding other factors, the court identified four as pertinent: length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. All these factors and others which may be pertinent must be weighed by the court together and no one factor is conclusive.

'The length of delay is perhaps the least conclusive of the factors, and where, as here, is substantial, acts merely as a triggering mechanism necessitating analysis of the other factors. Barker v. Wingo, supra. See United States ex rel. Stukes v. Shovlin, 464 F.2d 1211 (3rd Cir. 1972).' State v. Brannin, 109 Ariz. 525, 514 P.2d 446 (1973).

In the instant case the defendant left the jurisdiction shortly after the commission of the offenses charged. He resisted extradition in both Nevada and California. There was no demand by him that he be brought back and tried as soon as possible as was the case in Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), and once he was returned, much against his will, he was the cause of further delay.

Regardless of the confusion resulting from the attempt to extradite the defendant from Nevada, after extradition from California the State of Arizona proceeded diligently to try him. A reading of the transcript indicates no prejudice caused by the delay nor denial of defendant's right to speedy trial.

INTERFERENCE WITH THE RIGHT TO REPRESENT HIMSELF

Defendant contends that his motion to proceed in propria persona was conditioned on the exercise of his rights upon 'full access to the courts.' It is defendant's position that the conviction must be set aside because the conditions of this waiver of counsel and election to represent himself were not met. At one point in the proceedings the following transpired:

'Now I am aware of the problem we have here with the Sheriff's Department, of not having any facilities for the pro pers. However, this is not my fault. Until they decide to establish a facility there for the pro pers then they will have to escort me to the law library. And if they don't have a telephone they are going to have to escort me to a public telephone. It is as simple as that. I don't believe the court is justified in denying me these rights as counsel for the defense merely because the Sheriff's Department does not have a law library or public telephone in the jail as they do in other places. * * *'

And:

'THE COURT: Mr. Yanich, you know that when we first heard your motion with respect to the use of the law books and so on, you were aware at that time that the facilities in this State are not such as they are in the State of California and in the Los Angeles County Jail. Now they had a law library for you over there, didn't they?

'MR. YANICH: Yes, they did.

'THE COURT: Yes. And I am sure you are aware that in Arizona we do not have one that is available for you.

'MR. YANICH: That isn't my fault, your Honor.

'THE COURT: I am not saying it is.

'MR. YANICH: I am just trying to exercise my Constitutional rights.

'THE COURT: I am just stating this as a fact, that you are aware of the fact that facilities are not available here like they are in California. We have no law library in the County Jail. We have no private telephones in the County Jail for the use of the defendants who are representing themselves. And it appears to me that this is one of the hazards that you accept when you defend yourself in this matter.

'MR. YANICH: I did not accept these hazards, your Honor. There is a law library here in this building, and there are private telephones in the building. The Sheriff's Department can bring me over here to these facilities. It isn't my fault that they don't have a law library in the County Jail.

'THE COURT: The court offered to appoint private counsel to represent you in this matter, and you have indicated that you want to represent yourself. I am still willing and will offer at this time to remove the Public Defender and appoint private counsel to represent you, because it is quite obvious that under the limited facilities which this State provides that we will not be able to escort you to the law library, and will not be able to furnish you with a private telephone. If you want to reconsider, I will appoint you private counsel on the matter.

'MR. YANICH: I will not reconsider, your Honor. I am exercising my Constitutional rights in defending myself. I have a difficult case, and there are a lot of issues that I have to raise before this court. I don't believe that private counsel, or the Public Defender, or anyone else can devote the necessary...