State v. Chavez

693 P.2d 936, 143 Ariz. 281, 1984 Ariz. App. LEXIS 516

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 attention 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. § 13-708 allows for imposition of a consecutive sentence, provided the reasons therefore are set forth on the record. Id.

In the instant case, the defendant has been sentenced to a total of forty-one years imprisonment. In support of the maximum sentences imposed for the initial two aggravated assault convictions, the court found the use of a deadly weapon to be an aggravating factor which outweighed any mitigating factors. In listing his reasons for a consecutive sentence the court stated:

The Defendant has a significant potential for violence and the Court believes that society in general, the innocent bystander and particularly those individuals previously domestically involved with Mr. Chavez be protected from Mr. Chavez for the period of time longer than the concurrent sentences would permit.

Further, the offenses occurred at different times, different places, and were not part of the overall same transaction, and the Defendant should not therefore receive the benefit of concurrent time.

And, in explaining its reasons for imposing consecutive sentences on the subsequent convictions, the court stated:

The Court’s reasons for imposing consecutive time in this case are:

1. The defendant was on probation at the time he committed the offense;

2. These very serious offenses occurred approximately one week after the defendant’s release from custody in connection with a prior incarceration;

3. The defendant is a dangerous individual with a significant potential for violence, who can justify any act violent or otherwise so long as he believes it accomplishes the goal he wishes to accomplish.

The Court therefore believes that society in general, and particularly those closely associated with Mr. Chavez, and more particularly in a domestic manner, need to be protected from Mr. Chavez for a longer period of time than straight concurrent sentences will permit.

There can be no question that the sentences imposed are very severe. As the defendant points out, he will likely serve more time than someone convicted of premeditated murder. However, after having substantial contact with the defendant, the trial court was obviously convinced the defendant is a dangerous man who must be incarcerated for the protection of society. We agree. Although we would not necessarily have imposed a sentence of this length, the test is not what we might have done as trial judges. In light of the record before us, it is clear the trial judge was very familiar with the defendant’s background. Further, the court gave specific reasons for imposing the sentences it did. Thus, although we believe the sentences are severe, we find no abuse of discretion.

The defendant also claims that the sentences on the aggravated assault charges, following revocation of probation, are excessive because they are disproportionate to the original offenses. In citing State v. Herrera, 121 Ariz. 12, 588 P.2d 305 (1978), the defendant contends that there is, at best, only a tenuous connection between the five years probation he was ordered to serve and the consecutive ten year sentences eventually imposed.

We find this case clearly distinguishable from State v. Herrera. In that case, the court noted that while it is established that a court may increase a sentence for an original offense in light of subsequent, serious criminal activity, the court found the original charge unlikely to have warranted the sentence imposed by the trial court. It was noted that the original crime was one of nonviolence, that the probation officer did not believe defendant was dangerous, and that it was a statutory rape charge, involving consenting individuals. The defendant, nevertheless was sentenced by the trial judge to thirty years to life.

In this case, the original crimes to which appellant pled were violent crimes. A condition of probation was that appellant would seek and obtain psychological counseling, avoid contact with his former wife, and obey all laws. Less than two weeks after appellant was released from the county jail, he again engaged in acts of physical violence towards several individuals, while armed with a deadly weapon. Not only the nature of the violation, but the original crimes themselves were of such a nature to have warranted severe punishment. We note that the record in CR-117107 and CR-118359 discloses that at the time appellant was allowed to enter the plea agreement, the trial judge who accepted those pleas expressed reservations about the apparent leniency of the sentence and, the presentence report recommended imprisonment.

In reviewing the propriety of the exercise of a trial court’s discretion in sentencing matters, the appellate court must look to the circumstances considered by the trial judge. State v. Patton, 120 Ariz. 386, 586 P.2d 635 (1978). Based on the record, we do not find that the trial judge in this case abused his discretion in imposing the sentences below.

For all the foregoing reasons, the judgment of the trial court is hereby affirmed.

JACOBSON, J., concurs.