*1
sample
completion
cient
and successful
of a
er test met the N. aka James N. foundational admissibility. Coscoe, ments Appellant. a broader sense, however, may a “valid” test include No. CR-88-0134-AP. is competent a test that and admissible to conviction, obtain a DUI absent evidence of Arizona, Supreme Court of inaccuracy its or invalidity. If the state En Banc. sample used a deficient competent as evi- conviction, dence to a DUI obtain then the Oct. sample evidence, by is not sufficient itself, prove complete a refusal to successfully a breath test. court, however,
Like the Robinson we do imply
not mean to that evidence of willful
noncooperation independent of the deficient
sample every necessary to sup-
port finding of refusal to a take blood example,
alcohol test. For in a case where prosecution has been unable or unwill-
ing to sample competent use same prosecution
evidence in a criminal because
it inaccurate, is shown unreliable
the driver’s failure to supply the state with might support valid test result
finding. merely hold that on the basis record,
of this absent petition- evidence of noncooperation,
er’s absent evidence
inadequacy or inaccuracy the deficient
sample, face of evidence that
petitioner supplied sample a usable above presumed intoxication level that was conviction, in obtaining
instrumental DUI
the state failed to meet its burden show complete
a refusal successfully the test.
Conclusion hearing finding
We reverse the officer’s
of refusal and suspending vacate the order
petitioner’s appeals license. The court of
opinion is vacated.
GORDON, C.J., FELDMAN, V.C.J., MOELLER, JJ.,
and CAMERON and
concur. *2 Corbin, Atty. by Jessica K. Gen. Robert Div., Counsel, Funkhouser, Chief Crim.
G. Gen., Tucson, Atty. Ferg, M. Asst. Bruce appellee. Phoenix, appel- Kelly, Kathleen A. lant.
OPINION CORCORAN, Justice. (defendant) ap-
Appellant Jimmy Kinslow peals from his convictions and sentences after imposed for 16 felonies he committed escaping from the New Mexico State Peni- argues tentiary. He that the trial court disallowing erred his duress defense. disagree and affirm his We convictions. point sentencing errors also out two We record, on the face of the but apparent modify defendant’s sentences decline cross-appeal the state. the absence of Ariz.Const. art. jurisdiction have under 5(3), 13-4031. and A.R.S. §
Facts and 6 others July On Mexico State Peni- escaped from New serving tentiary, where defendant was rapes and life sentences for the consecutive daugh- of a woman and her two murders governor issued an The New Mexico ters. that, apprehending the providing order should escapees, enforcement officers law kill, necessary.” Defendant “shoot monitoring radio order while heard of the ra- prison on a 4-channel communications escape. during the he dio obtained for 3 weeks with two hiding out After storage shed New inmates other eventually way Mexico, made July arriving there Flagstaff, into sever- night, he broke Late that vehicles, “hot trying to find one could al He also to California. wire” and drive looking neighborhood, for hous- surveyed a money. After burglarize for food and toes he broke into the first house and stole food accepted Stipulation The trial court rum, attempt Agreement. considering and a bottle After the evi- dence, the break into a second house aborted trial court found defendant *3 counts, guilty remaining on and a in the also when woman the house heard noises findings dangerous- made affirmative of investigate. and awoke her husband ness, convictions, of prior defendant’s and house, breaking After into a third defen- that the 16 offenses were committed while by dant was discovered one of the occu- escape defendant was on Defen- status. pants. ultimately He took the entire fami- 14 life pos- dant received sentences without ly hostage, compelled them to and drive sibility parole 6-year for 25 a Barstow, him to Upon arriving California. 4.5-year a for sentence and his Barstow, motel, they in checked into a judge imposed crimes. The trial the sen- parents where defendant bound the and concurrently consecutively, and kidnapped the children. He the stipulation. outlined in the third child and continued on to Garden On this direct defendant raises shortly Grove. Police arrested him after single issue: did by the trial court err he released the child. disallowing his duress defense? We also grand jury A indicted defendant on 19 on address our own motion whether we can felony counts for the offenses committed in imposition correct the trial court's of il- Flagstaff: burglary, attempted armed arm- legally lenient sentences in the absence of burglary, ed robbery, armed criminal dam- a cross-appeal the state. theft, age, assault, sexual kidnapping, and Duress aggravated assault. The state later moved Defense “prevent presentation the evi- elements of duress defense jury dence to the regarding the Defen- 13-412(A): are codified in A.B.S. § ” alleged dant’s ‘necessity.’ defense of De- Conduct which would otherwise consti- responded, fendant arguing that his de- justified an tute offense is if a reason- duress, fense was necessity. On March person would able believe that he was 15, 1988, granted the trial court the state’s compelled engage proscribed motion, finding support “no in the law for conduct threat or use of immedi- ” of ‘necessity’ defense or ‘duress.’ physical person force against ate his (Emphasis original.) person of another which resulted or physical injury could result serious foreclosed, With this defense person in the which reasonable situa- attorney and his “Stipulation entered into a tion would not have resisted. Agreement” state, and waiving with the his reasonably Defendant asserts that he right jury to a stipulating trial and to sub- safety feared his because of “shoot mission of his to the trial on the argues to kill” order. He that he was record, which grand jury consisted hostages protection compelled to take transcripts, police reports, transcript “outraged against law enforcement offi- from the federal trial defendant’s kid- who, contends, had cers” “carte blanche napping charges, copies and certified open escapees.” fire seven prior convictions. Defendant disagree. evidentiary hearing also testified at an appeals As the court of has stated: proof regarding made offer of his du- ..., In order to constitute defense addition, ress defense. the state and duress must present, coercion or be im- provided in the Stipulation and impending, minent and (1) Agreement the sexual assault well-grounded ap- nature as to induce a dismissed, (2) counts would be in- crimes prehension bodily of death or serious in- volving the same victim would receive con- jury the act is not done. sentences, (3) current all sentences Jones, run consecutively would to defendant’s P.2d added). (App.1978)(emphasis New Mexico sentences. De- implausible he had defendant’s belief that presented no evidence to show fendant escape the opportunity due to kill” order was no harm “shoot reasonable impending.” committing his “present, imminent harm threatened without passed certainly defen- subsequent Three weeks had between crimes. Defendant The evi- escape telephone dant’s and these crimes. could have had access to a notify knew at least one agents dence showed defendant police or federal called captured escaped surrender, inmates had been if he did in them of his intent to also tes- nonviolently and alive. Defendant To kill” order. fact fear the “shoot to that, escape, he tified after his encountered danger still believe that life would *4 police at an Albu- a New Mexico officer voluntarily he surrender choose to should who, recognizing de- querque despite hotel police to is incredible. himself fendant, weapon or threat- did not draw his defendant, to Sentencing Discrepancies en and defendant was able get away. reviewing this this record police to Finally, statements defendant’s sentencing er- court became aware burglarize the to officers reveal his intent First, party. be- by rors not raised either pro- and then money houses for and food of defendant’s New cause of the nature He ceed to California in stolen vehicle. Mexico and his convictions convictions hostages, originally not intend to take did regard- aggravated kidnapping and assault only by the did so when discovered but case, ing in this each of the 3 children Thus, during burglary. al- family subject to the of his sentences were several though may he concerned about have been following A.R.S. requirement order, failed the “shoot to kill” 13-604.01(F): § physical to show that feared imminent any person who stands convicted A order; consequently, the injury from that in the against children dangerous crime precluding in court did not err trial previously con- having been degree first duress defense. predicate felonies of two or more victed imprisonment life A.R.S.
We note further that shall be sentenced 13-412(B) eligible suspension or com- makes the defense unavailable is and not § person intentionally, knowingly sentence, probation, pardon, “if the mutation of from recklessly placed himself situation or release parole, furlough work probable he would be any which it that basis ... until other confinement subjected By escaping from to duress.” than person served not has fewer prison, law enforcement defendant knew thirty-five years. him, attempt apprehend officers would added.) Stipulation and The (Emphasis and using whatever force was reasonable the trial Agreement provided and volition, Thus, de necessary. by his own pa- he would be that informed defendant situa placed himself in a stressful fendant than 35 in 25 rather eligible role tion, use of a duress precluded and judgment and in the years, and so stated defense. sentence. Supreme Court has States As United Second, provided the state and defendant noted: sen- Agreement that Stipulation and in the principle remains constant: involving [O]ne same vic- for offenses reasonable, legal alternative there awas concurrent, the trial tim would law, violating “a chance both accordingly. judge sentenced criminal act and also refuse to do the ag- However, governing the the statutes harm,” the defenses avoid the threatened charges kidnapping gravated assaults necessity] fail. will duress require [of that those involving the children any others. 394, run 410, sentences consecutive Bailey, v. U.S. United States 13-604.01(J) (dangerous crimes 624, 635, 591 A.R.S. 62 L.Ed.2d § 100 S.Ct. (kid- 13-1304(B) children); Scott, against A.R.S. A. (1980), quoting & W. LaFave 15). age wholly victim under (1972). napping We find Law 379 Criminal sentencing provisions sentencing enacted technical nature these legislature our are mandatory may errors, agree disposi- cannot that we such agreements not be tion, victims, circumvented be resulting its with harm to the tween prosecutors and defendants. The appropriate remedy would be duty sentencing to know and adhere See, e.g., Draper, event. upon prosecu statutes each incumbent (1989) (public 784 P.2d
tor,
counsel,
judge.
defense
and trial
The policy
protection
favors
of victims from
parties
failure of
and the trial court to
trauma).
harm and
mandatory sentencing
follow
provisions
sentencing
Whether or
such
applicable to defendant’s crimes resulted in
difference,
practical
strongly
makes a
we
receiving illegally
lenient con
disapprove
parties
the actions of the
parole eligibility
sentences with
af
current
stipulating
this case in
to sentences below
ter
years
years.
instead of 35
minimums,
statutorily required
recently
This court
reaffirmed
we
the trial
in accepting
stipula
court
will
sentencing
not correct
errors
ben-
out,
pointed
tion.
*5
previously
As
the state
defendant,
efit a
in the context of his own
duty
has a
to
on imposition
insist
of sen
proper
cross-ap-
appeal
absent a
range,
the requisite statutory
within
peal
Dawson,
the
state.
164
State v.
duty
and the
impose
trial court has a
to
278,
(1990).
792
741
Ariz.
P.2d
no
We have
sentences,
such
whether or not the state
subject
jurisdiction
matter
to correct the
380,
insists.
Ambalong,
State v.
to
statutorily
reflect the
required
381,
729,
(App.1986).
723 P.2d
730
Dawson,
on
minimum
our own motion.
286,
er 11-year-old C.J., V.C.J., and the during child family’s light MOELLER, J., course kidnapping. concur.
508 Justice,
CAMERON, concurring part P.2d 849 Stephen dissenting part: ex rel. The STATE Arizona NEELY, County Pima D. agree majority I the duress with the Petitioner, Attorney, However, part I dissent from that issue. majority opinion refusing correct of the discrepancies apparent on sentencing SHERRILL, The Honorable William I As stated in v. Daw- record. Court, Judge Superior of the
son, majority opinion is “the result Pima, County Respondent, attor- prosecuting defendant and a unlawfully lenient agree ney may if trial final becomes sentence that VOGT, Raymond Real Thomas it and the state correct fails to Party in Interest. Ariz. appeal.” 164 fails to No. CV-89-0265-PR. (1990). has come That result P.2d in this case. to fruition Arizona, Court of Supreme En Banc. majority, the defendant by the As noted agreement” “stipulation and entered into a Oct. the court to find defendant which allowed felony guilty counts and which result- unlawfully sentence for in an lenient
ed
defendant. court lacks majority holds that this correct jurisdiction to sen-
subject matter ap- fails to
tencing when the state errors believe, however, cross-appeal. I
peal or er- illegal is fundamental sentence jurisdic- matter subject court has
ror. This illegal sentence even to correct an
tion error.
though party raises the neither 13-4035, -4036.
A.R.S. §§ illegally I that an lenient
Because believe error, I would set fundamental
sentence stipulation agreement, re- aside the sentences,
verse the convictions and original charges. and reinstate
remand could then the defendant
The state and agree- “stipulation and into another
enter go on all counts. to trial
ment” or
event, to im- be able the trial court would as the
pose legally sufficient mandated.
legislature has County Atty. Neely, Pima
Stephen D. County Atty., Deputy Spivack, M. Louis Tucson, petitioner. Kettlewell, County Public Pima
Susan A. Cornell, Pub- Creighton Asst. Defender in- Defender, Tucson, party for real lic terest.