*1 Arizona, Appellee, STATE JEFFERSON, Appellant.
Yulice
No. 2349.
Supreme Nelson,
Gаry Atty. K. Gen. Peter M. Orman, Gen., Atty. Phoenix, Van Asst. for appellee. Lee, Maricopa County
Ross P. Public Kemper, Defendеr Deputy H. James Defender, Phoenix, appellant. Public for HAYS, Chief Justice. appeals from a
Yulice Jeffersоn finding guilty him verdicts rape, kidnapping, robbery and and from years, ten fifteen sentences five years, years, years resрec- and five ten tively. witness, prosecuting 22-year-old with four children and one
divorcee on the way, from a cafe at about 2:00 testified that A.M. She taxi; money had no defend- grabbed dragged ant her and her some twenty-five large van; fеet to a it, pushed panties, her into tore her off and raped her twice force and threats to kill her; away that he dragging her from police the scene of when a the crime car approached; away that she broke from police; purse him ran to the that her pocket gave was then in and he defendant’s poliсe. it Corroboration was in the gynecologist form of from a sperm who examined her in her and found vagina, abrasions on contusions victim, her found from some of hair truck, clinging to the bed and from rape panties her torn found near whеre the place. took was that she had *2 601 late, walking so instead and was on the street on the street defendаnt (cid:127)encountered In that calling a cab. the fact of view of him walk her because to had asked following repeatedly to make the defense tried the some man was that she feared prosti- was a but believe victim nоt the stand did take Defendant "her. not deserted tute or she would be prove by that defense cross-exami- to tried A.M., thаt the streets at 2:00 we believe nation of the victim. evidence was material. First, questions. three raises Defendant his сonstitu- argues "he that he was denied last that Defendant’s contention is proved the an rights “when state tional transcript that the reporter’s the ” testimony of silence.’ The “admission run the to ordered three sentences that Policе Officer Roberts was Phoenix entry concurrently, typed the minute while "he defendant of his constitutional informed they shows that n rights, that which defendant stated after requires This is a which of course matter any questions he did not wish to answer investigation. question so much is not n until lawyer. objection seen a No he had precedence takes the oth which order over testimony. was made to this On cross-ex- er, the represents order what as which amination, defense counsel elicited the actually said. again. testimony same question There is no but that the oral improper have held it is to Wе that valid and the is when of evidence an accused’s silence introduce judge speaks question is what he ac- —the custody questions reply in when is in to tually entry, having The minute been said. or it is under other circumstances where typed, wаs not made in the courtroom. right in his constitutional to refrain from Likewise, transcript, having typed, the been Simoneau, criminating himself. State v. in was not made the Each was courtroom. 98 404. In Ariz. 401 P.2d United States person, made a different one of whоm Kroslack, 426 F.2d the United judge. possi- misunderstood the It is also Appeals States Court of the reporter Seventh ble that the court mistranslated Circuit held that it was reversible error. his notes. question We need not decide the in this affirmed, guilt of is but case, however, because here the Superior the remanded to case is Court objection question tо made no that line of purpose determining for the what sen- ing, brought in fact out the same in actually imposed. tenсe was questioning. formation its own addi conviction affirmed. tion, in the matter was not referred to his motion for new trial. CAMERON, J., V. and STRUCK C. point This in exact decided United LOCKWOOD, JJ., MEYER and concur. Cook, 432 States F.2d where Appeals United Court HOLOHAN, States : (dissenting) Justice same seventh circuit failure held that the position agree with I the Court’s While to object to or move strike the holding questions first two appeal. gen- eliminated the error This defendant, presented by I dissent principle eral has been con- followed us disposition by in holding and the Court Dutton, sistently. See State v. point. final a conflict between Becаuse of reporter’s transcript, the the court Defendant’s second contention utes and mat- prosecutоr this that asked the victim wheth Court has determined to remand court for a determination of er on welfare. The court over ter she was items objection sentence.” If these two ruled the answer was the “correct n immaterial. Thе State contended considered, I only be were the matters to why agreement po- (cid:127)question designed the Court’s show would be ignores, however, sition. The Court strength decisions, previous of our I would fact that the of Guilt and Sen- affirm both the conviction and the sen- actually tence is document which was imprison- tence consecutive terms of signеd by the trial court. ment. *3 imposed The January sentence was on
29th, and the formal Judgment written was
signed February on 3rd and filed in the
clerk’s office February Judg- The 4th. signed
ment Guilt and Sentence judge clearly
trial sentence pronounced was that reflected P.2d 944 utes, namely that the terms of confinеment JORDAN, Petitioner, Edward Lee required by Facts Statement of A. ARIZONA BOARD OF PARDONS & PA- R.S. 11-533 also reflected that the sen- § ROLES, Department State of Cor- consecutively, tences were to run and this Respondents. rections, al., et signed by document No. M-130. Attorney and a Deputy County Supremo County Attorney. worthy It is also note that attached to the Statement of Dec. 1972. copy pre-sentence Facts awas of the re- Rehearing Denied port. presented The trial court had been рre-sentence report prior to the sentencing, and the recommendation to the report
court in that terms
confinement should be A consecutive.
comparison of the recommendation and the
actual sentence discloses that the court fol-
lowed the recommendation. holding today ignores pre- also our
vious decisions this issue which have
held that a and valid orally pronounced by
when it is court
and entered in the minutes. State v. John-
son,
(1972),
P.2d 205 instant
minutes and the formal written agreement,
are in and under our former
rulings the terms the sentence the minutes are the showing
court. made in the With sorry
record it seems a state of affairs to
remand this matter the trial court for
hearing. appears It clear to me judge imposed
trial a consecutive sentence.
It was reflected in the minutes his clerk trial confirmed in the
formal written and in the State- and on the
ment of Facts. On record