State v. Delvecchio

519 P.2d 1137, 110 Ariz. 396, 1974 Ariz. LEXIS 275
CourtArizona Supreme Court
DecidedMarch 15, 1974
Docket2746
StatusPublished
Cited by20 cases

This text of 519 P.2d 1137 (State v. Delvecchio) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Delvecchio, 519 P.2d 1137, 110 Ariz. 396, 1974 Ariz. LEXIS 275 (Ark. 1974).

Opinion

CAMERON, Vice Chief Justice.

This is an appeal by the defendants Freddi Delvecchio and Jesse G. Bojorquez from jury verdicts, judgments, and sentences as follows:

1. As to Freddie Delvecchio:

1. Assault with intent to commit murder of M. O. Ramirez, § 13-248, as amended, A.R.S., §§ 13-139 and 13-140 A.R.S., and a sentence thereon of not less than ten nor more than twenty years;
2. Assault with intent to commit murder of G. E. Montgomery, § 13-248, as amended, A.R.S., §§ 13-139 and 13-140 A.R.S., and a sentence thereon of not less than ten nor more than twenty years; and
3. Prisoner in possession of a deadly weapon, a knife, § 31-232, as amended, A.R.S., and a sentence thereon of not less than ten nor more than twenty years.

2. As to Jesse G. Bojorquez:

1. Assault with intent to commit murder of M. O. Ramirez, § 13-248, as amended, A.R.S., §§ 13-139 and 13-MO A.R.S., and a sentence of not less than ten nor more than fifteen years thereon;
2. Assault with intent to commit murder of G. E. Montgomery, § 13-248, as amended, A.R.S., §§ 13-139 and 13-140 A.R.S., and a sentence thereon of not less than ten nor more than fifteen years; and
3. Prisoner in possession of a deadly weapon, a knife, § 31-232, as amended, A.R.S., and a sentence thereon of not less than ten nor more than fifteen years.

As to both defendants, the three sentences are to be served concurrently, but to commence at the expiration of the sentences being served at the time of the commission of the offenses charged.

We must consider five questions on appeal :

1. As'to the defendant Delvecchio only, did the court commit reversible error in removing Delvecchio from the courtroom while his trial was in progress ?
2. Did the court commit reversible error in barring both defendants from the courtroom when the verdicts were rendered ?
3. Did the court commit reversible error by forcing counsel upon defendants contrary to their desires ?
4. Did the court commit reversible error when it did not allow defendants to examine additional witnesses in presenting their defense to the jury?
5. Does the evidence support the conviction of either defendant concerning their convictions for the crime of assault with intent to commit murder on the person of G. E. Montgomery?

The facts necessary for a determination of this matter on appeal are as follows. On 8 October 1972, at the Arizona State Prison in Florence, Arizona, the defendants Bojorquez and Delvecchio, as well as other inmates of the prison, were refusing to go to their individual cells within their cell block. Officers arrived on the scene and after considerable discussion the inmates dispersed and appeared to be obeying the order, but after additional officers arrived, the defendant Delvecchio told the officers they weren’t ordering him anywhere and that should they try to take him or come any closer he would kill one or two of them. At this time, Delvecchio was holding a homemade knife in his right hand and waiving it towards the officers. The officers retreated and Officer Ramirez became cornered in the stairway in the cell block. The other officers were able to witness the events that occurred. Officer *398 Ramirez and defendant Delvecchio started fighting and Officer Ramirez was stabbed twice in his right side and three times in his left side. At about this time Bojorquez produced a knife with which he subsequently stabbed Ramirez five times. Officer Granville Montgomery testified that he was on the stairway near Officer Ramirez when Ramirez became cornered and he saw Ramirez reach to grab Delvecchio but failed to grab his hand. Officer Montgomery then grabbed Delvecchio’s hand and was cut on the arm. Officer Prescott testified that both Delvecchio and Bojorquez struck Officer Montgomery.

Prior to the start of the trial, the defendants insisted on representing themselves. After much discussion the court allowed the defendants to represent themselves, but appointed two attorneys to sit in the courtroom and assist and advise the defendants during trial. On the third day of the trial, Delvecchio was excluded from the courtroom because of his conduct although he was later allowed to return. During his absence his attorney acted for him. The court later found it necessary to exclude both Delvecchio and Bojorquez and they were not present in the courtroom when the jury verdict was rendered.

Towards the end of the trial, the defendants requested permission to call additional witnesses which request was denied.

REMOVAL OF THE DEFENDANT DELVECCHIO'

On the fourth day of the trial the following transpired when the defendant Delvecchio was cross-examining a State’s witness :

“Q Okay. How many years must one train to become a lieutenant ?
“A Well, I’d have to look up the specs, it isn’t a case of years in terms of the specifications to be a lieutenant at the State Personnel Commission, and offhand, I couldn’t, under oath, answer that accurately, if I could be permitted to bring out the specifications, I would read them to you.
“THE COURT: Do you have them with you?
“THE WITNESS: No, I do not.
“MR. DELVECCHIO: I don’t need that, because I know in my own mind, the words are creeping in my memory—
“THE COURT: Now, Mr. Delvecchio, just a minute. I’m going to excuse the jury from the courtroom for about 10 minutes, under the admonishions (sic) previously given.
(Whereupon, the jury was then excused from the courtroom.)
“THE COURT: How many times have I warned you this afternoon to just ask questions, Mr. Delvecchio ?
Do you have any idea ?
“MR. DELVECCHIO: Obviously, I am asking questions.
“THE COURT: You are arguing with the witnesses and we are not going to get anywhere as long as you keep arguing.
I have warned you and warned you about it, and I told you the next time you got out of line — is this going to be your last witness ?
“MR. DELVECCHIO: No, it’s not.
“THE COURT: How many more witnesses ?
“MR. DELVECCHIO: I have some officers yet to call in.
“THE COURT: Well, I’m — if you will agree with me you are going to quit arguing with this witness and ask only questions, I’ll permit you to finish examining him; but if you can’t agree and abide by that, then, I’m going to have to send you back out of the courtroom.
Are you going to quit arguing with the witness ?
“MR.

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Cite This Page — Counsel Stack

Bluebook (online)
519 P.2d 1137, 110 Ariz. 396, 1974 Ariz. LEXIS 275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-delvecchio-ariz-1974.