State v. Chavez

693 P.2d 936, 143 Ariz. 281, 1984 Ariz. App. LEXIS 516
CourtCourt of Appeals of Arizona
DecidedJanuary 10, 1984
DocketNos. 1 CA-CR 6116, 1 CA-CR 6117 & 1 CA-CR 6168
StatusPublished
Cited by1 cases

This text of 693 P.2d 936 (State v. Chavez) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Chavez, 693 P.2d 936, 143 Ariz. 281, 1984 Ariz. App. LEXIS 516 (Ark. Ct. App. 1984).

Opinions

OPINION

GREER, Judge.

In January, 1981, the defendant was charged by complaint with aggravated assault and custodial interference in CR-117107. In March, 1981, after his release from jail, he was indicted for a separate aggravated assault and kidnapping in CR-118359. In July, 1981, pursuant to the terms of a written plea agreement, he pled guilty to the two counts of aggravated assault. In return for the plea agreement, the state agreed to dismiss the custodial interference and kidnapping charges. The trial court accepted the defendant’s guilty plea and placed him on probation for a period of five years. In October, 1981, a short time after his second release from custody, an eight count indictment was returned against him, including burglary in the first degree, four counts of aggravated assault, endangerment, kidnapping, and misconduct involving weapons, all dangerous felonies. The defendant was convicted of two counts of aggravated assault, first degree burglary, kidnapping, and misconduct involving weapons. In April, 1982, the trial court revoked the defendant’s probation and. sentenced him to consecutive maximum terms of ten years imprisonment on both aggravated assault charges. In May, 1982, the defendant was sentenced on the jury convictions as follows:

Burglary first degree — 1.5 years consecutive to CR-117107.
Aggravated assault — 7.5 years consecutive to CR-117107.
Kidnapping — 10.5 years consecutive to the count one.
Aggravated assault — 7.5 years concurrent with count one.
Misconduct involving weapons — 1.5 years concurrent with count one.

The defendant has raised four issues on appeal:

1. Whether prosecutorial misconduct in the closing argument deprived him of a fair trial.
2. Whether the trial court improperly instructed the jury on the insanity defense.
3. Whether his sentence on the jury conviction is excessive. And,
4. Whether the sentences on the initial two aggravated assault convictions are excessive.

PROSECUTORIAL MISCONDUCT

Defendant contends that parts of the state’s closing argument were unethical and improper. Initially, we note that the defendant did not make any objections to the closing argument at trial. When a defendant makes no objection to certain instances of prosecutorial misconduct during closing argument and the error is not fundamental, the right to have the matter reviewed on appeal is waived. State v. Dixon, 126 Ariz. 613, 617 P.2d 779 (App. 1980).

The general rule for determining whether a prosecutor’s remarks are so objectionable as to require a reversal is whether the remarks called to the jury’s [283]*283attention matters which they would not be justified considering and whether the remarks adversely influenced the jury. State v. Robles, 135 Ariz. 92, 659 P.2d 645 (1983); State v. Landrum, 112 Ariz. 555, 544 P.2d 664 (1976). We have reviewed the record and believe that it contains evidence which would support the prosecutor’s remarks that the defendant contrived the insanity defense. Thus, we do not believe it was improper to make such a comment. See Commonwealth v. O’Brien, 377 Mass. 772, 388 N.E.2d 658 (1979) (the prosecutor was entitled to establish, if he could, that the defendant had contrived his insanity defense). We do not believe any of the prosecutor’s statements can fairly be interpreted as intimating that defendant’s attorney had fabricated the defense. Thus, we do not find the state’s closing argument constituted fundamental error requiring reversal.

INSTRUCTION ON INSANITY DEFENSE

The defendant also claims that the court improperly instructed the jury on the definition of insanity. We agree. The instruction left out the first prong of the M’Naghten rule. See State v. Everett, 110 Ariz. 429, 520 P.2d 301, cert. denied, 419 U.S. 880, 95 S.Ct. 144, 42 L.Ed.2d 120 (1974). Our supreme court has also stated its disapproval of this exact instruction. State v. Brosie, 113 Ariz. 329, 553 P.2d 1203 (1976). Thus, the instruction should not have been used.

The state points out, however, that in State v. Brosie, our supreme court found the giving of this instruction to be harmless error. The court reasoned:

The jury was instructed that if it determined appellant did not know the probable results of his acts, then he was not sane. It must have found, in order to return a guilty verdict, that appellant knew the probable consequences of his acts. Since the jury found that appellant knew the probable consequences of his acts, it must have believed that he was aware of the nature of the acts, what the acts were. Or, to put it conversely, if the jury believed the defendant did not know the nature of his acts, it could not have found that he knew their probable results.

Id. at 331, 553 P.2d at 1205. We hesitate to agree that a person will always know the nature of his acts merely because he knows what their likely effect will be. Further, although we agree with the dissent’s critical analysis of our supreme court’s reasoning in Brosie, we are unable to avoid the court’s legal conclusion that, although the instruction was improper, it was harmless error. Thus, based upon State v. Brosie, we hold that although the court erred by giving the instruction, such error was harmless.

EXCESSIVE SENTENCE

The defendant contends that his sentence on the initial aggravated assault and the latter sentences were excessive. Specifically, he claims that the trial court failed to consider the testimony regarding his mental condition and other factors. The imposition of a sentence within the statutory limit is entirely within the discretion of the trial court. State v. Ferreira, 128 Ariz. 530, 627 P.2d 681 (1981). Any challenge thereto must be carefully scrutinized because the trial judge is in the best position to evaluate a defendant. See State v. Gordon, 125 Ariz. 425, 610 P.2d 59 (1980). We will not disturb a sentence within the statutory limit unless it reveals an abuse of discretion. State v. Baumann, 125 Ariz. 404, 610 P.2d 38 (1980); State v. Limpus, 128 Ariz. 371, 635 P.2d 960 (App.1981). An abuse of discretion is characterized by arbitrariness or capriciousness, and a failure to conduct an adequate investigation into the facts relevant to sentencing. State v. Gordon; State v. Patton, 120 Ariz. 386, 586 P.2d 635 (1978); State v. Limpus. And, with regard to the consecutive nature of the sentences, A.R.S.

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Related

State v. Chavez
693 P.2d 893 (Arizona Supreme Court, 1985)

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Bluebook (online)
693 P.2d 936, 143 Ariz. 281, 1984 Ariz. App. LEXIS 516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-chavez-arizctapp-1984.