State v. Self

Citations: 661 P.2d 224; 135 Ariz. 374; 1983 Ariz. App. LEXIS 390Docket: 1 CA-CR 5650

Court: Court of Appeals of Arizona; February 3, 1983; Arizona; State Appellate Court

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John Self was convicted of perjury and tampering with physical evidence related to a dispute over attorney fees before the Arizona State Bar. The case centered on whether Self had made a $1,200 payment to his attorney, Larry Richmond. Self claimed he paid by check and presented a photocopy of this check during his testimony. However, Richmond testified he never received the check, and an investigation revealed that the photocopy was altered, changing the payee from "Richard Johnson" to "Richmond and Lawson." Self failed to produce the original check when requested and later claimed it could not be located. Testimony from a bank employee confirmed the alterations, and an investigator indicated that Self had told him he gave the check to Johnson. Self did not testify in his defense, and his codefendant, Mary Hester, invoked her Fifth Amendment rights when called to testify. Both were found guilty by the jury. Self's appeal included a claim that the trial court erred in not severing the trials, which he argued deprived him of due process and the ability to call Hester as a witness. The court found this argument lacking merit. Following his conviction, Self's sentence was suspended, and he was placed on two years of probation.

Rule 13.4 of the Arizona Rules of Criminal Procedure allows for the severance of offenses or defendants when necessary to ensure a fair trial. A severance from a codefendant is mandated only if a defendant demonstrates a clear necessity for it. The decision to grant or deny a severance is within the trial court's discretion and will not be overturned on appeal unless there is a clear abuse of that discretion. In *State v. Druke*, the court ruled that denial of a severance was appropriate due to judicial economy outweighing potential prejudice, as the defenses were not in direct conflict.

In the current case, the defense's attempts to secure a severance based on the anticipated testimony of Mary Hester were unsuccessful. The defense claimed her testimony would be exculpatory for the appellant, but the court found the assertions to be speculative and not compelling enough to warrant a severance. The court noted that even if Hester testified as proposed, it would not significantly aid the appellant's defense, as it would merely reflect the general denials of both defendants. The motion to sever was ultimately denied, and the court referenced *United States v. Seifert*, which similarly required a clear demonstration that the codefendant's testimony would be both forthcoming and favorable to the moving party before granting a severance.

The testimony offered would only slightly exculpate John Self and was not directly exculpatory. The court found no abuse of discretion in denying a motion to sever the case based on this testimony. The appellant argued that the perjury conviction lacked sufficient evidence, claiming the state's proof relied on uncertain recollections from Mr. Richmond and an arbitrator, suggesting that all five checks, including check number 1325, had been paid to Richmond for legal services. However, the court found that Richmond's trial testimony was clear and supported the conviction. Richmond testified that no record of payment was shown for a $1,200 check Self claimed to have paid. He confirmed that Self presented photocopies of checks as evidence of payment to his law firm, which included the disputed $1,200. The statutes defining perjury (A.R.S. 13-2702 and 13-2701) were discussed, indicating that a false sworn statement on a material issue constitutes perjury. The court rejected the appellant's claim that the perjury conviction could not arise from proceedings before the State Bar Committee on Arbitration of Fee Disputes, emphasizing that the statutes only require the sworn statement to be false, independent of the nature of the proceeding.

The appellant contends that the tampering conviction should be overturned, arguing that the evidence does not demonstrate the tampering occurred prior to an “official proceeding.” A.R.S. 13-2809 defines tampering as actions intended to manipulate physical evidence for use in an official proceeding that is either pending or anticipated. The definition of "official proceeding" under A.R.S. 13-2801 includes any proceeding before a governmental agency authorized to hear evidence under oath. The court disagrees with the appellant's assertion that the committee hearings were outside statutory parameters, noting that the State Bar of Arizona, governed by established rules and by-laws, has the authority to conduct such hearings, including the power to administer oaths to witnesses. Consequently, the court concludes that the proceedings in question qualify as "official" under the law, rendering the evidence sufficient to support the conviction.

Additionally, the appellant challenges the sufficiency of the perjury indictment, claiming it lacks specificity regarding the false statement made. The indictment charges John Self with perjury, outlining the date and nature of the offense, but the appellant fails to provide supporting legal authority for his argument. The court notes that the indictment aligns with statutory language and adheres to Rule 13.2 of the Arizona Rules of Criminal Procedure, which mandates only a clear and concise statement of facts and does not require extensive detail regarding the offense unless necessary for adequate notice. Thus, the court finds the indictment sufficient.

An indictment or information serves to inform the accused of the charges, enabling preparation of a defense and safeguarding against double jeopardy. Generally, using the language of the violated statute suffices for adequacy. The appellant did not contest receiving notice of the charges, and all involved parties understood the indictment's basis. The appellant alleged the trial court erred by allowing an amendment to the indictment that changed the date of a perjury charge from August 11, 1979, to September 11, 1979, claiming it compromised his fair trial and affected the credibility of his witness. According to Rule 13.5, an indictment may be amended to correct factual mistakes or formal defects unless the defendant consents. The trial record shows that the defense's witness was uncertain about the arbitration hearing date, while a state witness confirmed it as September 11, 1979. Since there was no conflicting evidence, the trial judge’s remarks could not be construed as commenting on the evidence. The appellant was aware that the perjury charge pertained to the first hearing regardless of the exact date, and thus, no lack of notice or prejudice was demonstrated from the amendment. The change was deemed "formal or technical," not altering the charge's nature or prejudicing the appellant. Consequently, no reversible error was found, leading to the affirmation of the convictions and probation imposition.