Petition — Fendler v. Arizona

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8 QO a l oO 5 4 Office-Supreme Court, U.S.

FILED

No. . MAR 18 1981

Sy RCERENOER TT STEVAS,

IN THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1980

ROBERT H. FENDLER, Petitioner,

STATE OF ARIZONA, Respondent.

MOTION FOR EXTENSION OF TIME IN WHICH

TO FILE PETITION FOR WRIT OF CERTIORARI

TO THE ARIZONA COURT OF APPEALS

and

PETITION FOR WRIT OF CERTIORARI

MICHAEL TIGAR, ESQUIRE

THOMAS:E. HORN, ESQUIRE

(Counsel of Record)

240 Stockton Street

Tenth Floor

San Francisco, California 94108

(415) 981-2534

Attorney for Petitioner,

Robert H. Fendler

A ET SRR RCT ARMM AARON: Se SRE ERAN NEE

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No.

ROBERT H. FENDLER, Petitioner,

STATE OF ARIZONA, Respondent.

MOTION FOR EXTENSION OF TIME IN WHICH

TO FILE PETITION FOR WRIT OF CERTIORARI

Petitioner, ROBERT H. FENDLER, by and through his

attorney undersigned and pursuant to Rule 20 of the

Supreme Court Rules, requests for good cause shown,

that he be granted the extension permitted by the Rule

that he may file his attached Petition for Writ of

Certiorari.

In support of his Motion and in showing good cause

therefor, Petitioner attaches hereto and incorporates

herein by reference the Affidavit of THomas E. Horn,

attorney for Petitioner.

In order to establish the factual and legal basis for

the Motion, Petitioner also attaches hereto and incor-

porates herein by reference his Petition for Writ of

Certiorari.

/s/ THOMAS E. Horn,

Thomas E. Horn, Esquire

Attorney for Petitioner,

Robert H. Fendler

iii

AFFIDAVIT OF THOMAS E. HORN

STATE OF CALIFORNIA

CouUNTY OF SAN FRANCISCO

I, THOMAS E. Horn, being fully sworn, depose and

state:

-1. I am an attorney licensed to practice before the

Supreme Courts of the States of California and New

Mexico. I have represented Petitioner throughout all the

proceedings in the State Courts of Arizona, including his

trial before the Superior Court of the County of

Maricopa and his appeal to the Arizona Court of Appeal

as well as his application to the Supreme Court of the

State of Arizona for hearing, which said application was

denied. I was also retained on his behalf to file a Peti-

tion for Writ of Certiorari with this Honorable Court.

2. In preparation for filing the Petition, I researched

the procedural requirements as contained in the Supreme

Court Rules as those Rules were contained in United

States Code Annotated, published by West Publishing

Company and maintained by me in my office. The set is

updated annually in the Spring by publication of pocket

supplements inserted at the rear of each volume.

3. Rule 22 in the main volume provided that, ‘‘a

Petition for Writ of Certiorari to review the judgment of

a State Court of Last Resort in a criminal case shall be

deemed in time when it is filed with the Clerk within

ninety (90) days after the entry of such judgment.”’ |

examined the current pocket supplement to Rule 22 and

found no change. Based on that research, I concluded

that I had up to and through March 23, 1981 in which

to file my Petition for Writ of Certiorari, the Arizona

Supreme Court having denied Petitioner’s Petition for

Review on December 23, 1980.

4. On February 27, 1980, I received a telephone call

from MICHAEL CuDAHY, Assistant Attorney General for

the State of Arizona who has represented Arizona

throughout these proceedings, advising me that no Peti-

tion for Writ of Certiorari would be timely as I had only

sixty (60) days in which to file said Petition. I pulled my

Supreme Court Rules Volume of U.S.C.A. and read

Rule 22 and advised him that the most current pocket

supplement did not indicate any amendments. He ad-

vised me that he had a copy of the Supreme Court Rules

published after my pocket supplement to Rules Volume

in U.S.C.A. that showed the time for filing Petition for

Writ of Certiorari to review a State Court judgement

had been reduced from ninety (90) days to sixty (60)

days. That was the first time that I became aware of

such a change.

5. It is an attorney’s responsibility to see that any

required pleading is filed within the proper time periods.

I have always attempted to rigorously adhere to that

very fundamental principle. As I maintained a copy of

the Supreme Court Rules as published by West in

U.S.C.A. in my office, I felt that I had properly

calculated the time within which I had to file the Peti-

tion. I would respectfully request this Court to find ex-

cusable neglect.

6. I have felt from the very inception of this case in

the State Courts that the Arizona Rules of Criminal Pro-

cedure challenged herein raise serious Fifth and Sixth

Amendment concerns. The imposition of the serious

sanction of preventing key defense witnesses from testi-

fying as to material allegations contained in the State’s

case went to the very heart of Petitioner’s right to due

process and a fair trial. These are matters which should

be reviewed by this Court and I pray that my oversight

in not becoming apprised of this recent Amendment of

the Rules would not deny Petitioner his attempt to ask

this Honorable Court to review those serious Constitu-

tional questions.

7. This Court, or a Justice thereof, may upon good

cause shown extend the time within which the Petition

for Writ of Certiorari may be filed for thirty (30) days.

This would permit filing of this Petition. Because of the

inadvertent and nonintentional oversight, coupled with

the serious Constitutional questions to be addressed, it is

respectfully submitted that good cause has been shown

to permit the extension.

FURTHER, AFFIANT SAYETH Nort.

/S/ THoMAS E. HoRN

Thomas E. Horn, Esquire

Vii

QUESTIONS PRESENTED FOR REVIEW

1. Whether Arizona Rule of Criminal Procedure

15.2 which mandates total disclosure of a defendant’s

case, including the defendant’s own testimony, within

twenty (20) days of arraignment, violates the Fifth

Amendment privilege against self-incrimination.

2. Whether Arizona Rule of Criminal Procedure

15.7 which permitted the Trial Court to exclude the

testimony of two key defense witnesses as a sanction for

non-prejudicial violation of Rule 15.2 is unconstitutional

as a violation of the Sixth and Fourteenth Amendments.

_ PRECEDING PAGE WAS BLANK

TABLE OF CONTENTS

PAGE

MoTION FoR EXTENSION OF TIME IN WHICH TO FILE

PETITION FOR WRIT OF CERTIORARI ..........0eeeee0e: i

PPUAVIE CP THOMAS Ti. THORN 6. ccc ccc ccccsees iii

QUESTIONS PRESENTED FOR REVIEW ............-0000: vii

NN te ae ae kan 6 ele tie balne e's MOMS l

ta out uns £2 kbs dk neu kee pees 2

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS . 2

Nee Ae ines dcekehbdewsdeeddac 5

Ps IER Er aera Alroet eo at at ERR ar 2 oe RE a 7

I. The Arizona Defense Disclosure Statute Is In

Violation Of Petitioner’s Fifth Amendment

Right To Be Free From Compulsory Self-

eo aes eet aae 7

II. Arizona Rule Of Criminal Procedure 15.7

Which Permitted The Trial Court To Exclude

The Testimony Of Two ‘‘Relevant’’ Defense

Witnesses As A Sanction For Not Providing

The State With Their Addresses Deprived Peti-

tioner Of A Fiar Trail As Guaranteed By The

Sixth And Fourteenth Amendments........... 11

Ce PAGEL ce Pe cils us ewe ke hha ec ape te 15

ae a rs a iaeis tees Wha la

| PRECEDING PAGE WAS BLANK

TABLE OF AUTHORITIES

CASES: PAGE

Boyd v. United States, 116 U.S. 616, 631-632 (1886) .... 10

Prudhomme v. Superior Court, 85 Cal. Rptr. 129, 566

ae Lake By | Re A arr eS A ae 10

Robbins v. Cardwell, 618 F.2d 581 (9th Cir. 1980)...... 14

Scott v. State, 519 P.2d 776 (Alaska 1974)............. 10

Wardius v. Oregon, 412 U.S. 470, 472 n.4 (1973), 93

S.CX. 2308, 2211, 37 Lb. 2e BZ CISTS) «wc vw vccce 9, 14

STATUTE:

Pe PRIERTEED 55% 55 NEKO VEER Cw ans wee ENGR OOO 8 bn 2

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No.

ROBERT H. FENDLER, Petitioner,

STATE OF ARIZONA, Respondent.

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

On September 11, 1980, the Court of Appeals for

the State of Arizona issued its Opinion affirming in part

and reversing in part, Petitioner’s conviction herein. A

copy of said Opinion is appended hereto as Exhibit A.

The State of Arizona appealed a post-verdict Order of

the Superior Court dismissing one of the counts of the

indictment on the ground of duplicity. That appeal was

dismissed by Opinion filed September 11, 1980. Subse-

quent to his conviction, Petitioner sought post-conviction

relief from the State Courts based on newly discovered

evidence. That relief was denied in a Memorandum Deci- |

sion filed September 11, 1980. Those Opinions are not

appended hereto as they are voluminous and are not

material to the questions presented for review.

JURISDICTION

Judgment was entered against Petitioner on April

14, 1978, said judgment being handed down April 14,

1978 and filed April 18, 1978, copy of said judgment ap-

pended hereto as Exhibit B. Subsequent to entry of the

Court of Appeals Opinion on September 11, 1980, ap-

pended hereto as Exhibit A, Petitioner and the State fil-

ed Motions for Rehearing in the Court of Appeals,

which said Motions were denied on December 11, 1980,

a copy of said Order being appended hereto as Exhibit

C. Both Petitioner and the State filed Petitions for Hear-

ing in the Arizona Supreme Court, which said Petitions

were denied on December 24, 1980, a copy of said Order

being appended hereto as Exhibit D.

Jurisdiction is conferred by 28 U.S.C. §1257(3), this

being an Application for Writ of Certiorari to review the

validity of a State Statute on the ground of its being

repugnant to the Constitution of the United States.

RELEVANT CONSTITUTIONAL AND STATUTORY

PROVISIONS

Amendment V, United States Constitution.

**No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a present-

ment or indictment of a Grand Jury, except in cases

arising in the land or naval forces, or in the militia

when in actual service in time of war or public

danger; nor shall any person be subject for the same

offense to be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal case to be a

witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor

shall private property be taken for public use,

without just compensation.”’

Amendment VI, United States Constitution.

‘In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and District wherein the

crime shall have been committed, which District

shall have been previously ascertained by law, and

to be informed of the nature and cause of the ac-

cusation; to be confronted with the witnesses against

him; to have compulsory process for obtaining

witnesses in his favor, and to have the assistance of

counsel for his defense.”’

Amcndment XIV, United States Constitution.

**All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or im-

munities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or pro-

perty, without due process of law; nor deny to any

person within its jurisdiction the equal protection of

the laws.”’

Rule 15.2 of the Arizona Rules of Criminal Pro-

cedure reproduced in its entirety in the Appendix hereto

provides in pertinent part,

‘*b. Notice OF DEFENSES. Within twenty (20)

days after the arraigment in Superior Court, the

Defendant shall provide the Prosecutor with a writ-

ten notice specifying all defenses as to which he will

introduce evidence at Trial, including but not

limited to, alibi, insanity, self-defense, entrapment,

impotency, marriage, insufficiency of a prior con-

viction, mistaken identify, and good character. The

notice shall specify for each defense the persons, in-

cluding the Defendant himself, whom he will call as

witnesses at Trial in support thereof. It may be sign-

ed by either the Defendant or his counsei, and shall

be filed with the Court.

**c. DISCLOSURES BY DEFENDANT. Simultaneously

with Notice of Defenses submitted under Rule

15.2(b), the Defendant shall make available to the

Prosecutor for examination and reproduction:

**(1) The names and addresses of all persons,

other than the Defendant himself, whom he will

call as witnesses at trial, together with all

statements made by them in connection with a

particular case;

*(2) The names and addresses of experts

whom he will call at trial, together with the

results of his physical examination and of scien-

tific tests, experiments, or comparisons, in-

cluding all written reports and statements, made

by them in connection with a particular case;

and,

*(3) A _ list of all papers, documents,

photographs and other tangible objects which

he will use at trial.

soeee

**f. DISCLOSURE BY ORDER OF THE CourT. Upon

motion of the Prosecutor showing that he has

substantial need in the preparation of his case for

additional material or information not otherwise

covered by Rule 15.2, that he is unable without un-

due hardship to obtain the substantial equivalent by

other means, and that disclosure thereof will not

violate the Defendant’s Constitutional rights, the

> =

Court, in its discretion, may order any person to

make such material or information available to him.

The Court may, upon request of any persons af-

fected by the Order, vacate or modify the Order if

compliance would be unreasonable or appressive.”’

Rule 15.7 Sanctions.

*‘a. If at any time during the course of the pro-

ceeding it is brought to the attention of the court

that a party has failed to comply with any provi-

sions of this rule or any order issued pursuant

thereto, the cour: may impose any sanction which it

finds just under the circumstances, including, but

not limited to:

*“(1) Ordering disclosure of the information

not previously disclosed.

**(2) Granting a continuance.

‘*(3) Holding a witness, party, or counsel in

contempt.

“(4) Precluding a party from calling a

witness, offering evidence, or raising a defense

not disclosed; and

‘*(S) Declaring a mistrial when necessary to

prevent a miscarriage of justice.

“*b. If the defendant fails to comply with Rule

15.2 the prosecution need make no _ further

disclosure except material or information which

tends to mitigate or negate defendant’s guilt as to

the offense charged as set forth in Rule 15.1(a)(7).

STATEMENT OF THE FACTS

On March 7, 1977, RoperT H. FENDLER, Petitioner

herein; JAMES R. HOLMAN, and LEONARD H. FORMAN,

were charged in a 17 count indictment alleging criminal

conduct in connection with the operation of several

financial type institutions headquartered in Phoenix and

Tucson, Arizona. Pretrial motions resulted in the

dismissal of five of the original counts. At the trials con-

clusion, four counts of the initial 17 went to the Jury.

The Jury found the Petitioner guilty of conspiracy,

A.R.S. §331 (now A.R.S. §13-1003), false book entry,

A.R.S. §10-193 (now A.R.S. §10-136), and failure to file

a State Corporate Income Tax Return, A.R.S. §43-179

(now A.R.S. §43-842). Thereafter, the Trial Court

dismissed the conspiracy count on the ground of duplici-

ty and entered judgments of guilty on the remaining two

counts. Petitioner was thereafter sentenced to one to

three years in the Arizona State Prison on the tax count

and four to five years on the false book entry count.

On appeal, the Arizona Court of Appeals, on

September 11, 1980, reversed the tax count on the

ground the two expert defense witnesses offered by Peti-

tioner to rebut key State testimony were not permitted to

testify, violating Petitioner’s right to fundamental

fairness in the trial process and remanded that count for

a new trial. The false book entry count was affirmed.

On December 9, 1980, the Arizona Court of Ap-

peals denied Petitioner’s Motion for Rehearing. On

December 10, 1980, Petitioner filed a Petition for review

in the Arizona Supreme Court, said Petition being

denied on December 23, 1980.

This Petition seeks Supreme Court review of an

Arizona Rule of Criminal Procedure that mandates total

disclosure of a defendant’s case within twenty (20) days

of arraignment, including whether the defendant himself

will testify as well as the nature of the defendant’s

testimony. Review is sought of the sanctions provision of

said Rule which was applied in this case to bar the

testimony, at trial, of two key defense witnesses.

The Fifth Amendment attack was first made against

the Rule on August 15, 1977 during the pre-trial motion

proceeding by written motion filed and denied by the

trial court. The Sixth Amendment issue was raised when

the court imposed the sanction of barring two key

defense witnesses from testifying because their addresses

had not been furnished to the prosecution pursuant to

Rule 15.7. Relevant transcript references are appended as

Exhibit E. The questions were again raised on appeal

and rejected by the Court of Appeals in its opinion ap-

pended hereto as Exhibit A.

ARGUMENT

I. The Arizona Defense Disclosure Statute Is In Violation

Of Petitioner’s Fifth Amendment Right To Be Free

From Compulsory Self-Incrimination.

Arizona Rule of Criminal Procedure 15.2 mandates

the broadest disclosure of the defendant’s case of any

such Rule this author has located in the Nation. It pro-

vides in pertinent part,

‘‘b. Notice OF DEFENSES. Within twenty (20)

days after the arraignment in Superior Court, the

Defendant shall provide the Prosecutor with a writ-

ten notice specifying all defenses as to which he will

introduce evidence at Trial, including but not

limited to, alibi, insanity, self-defense, entrapment,

impotency, marriage, insufficiency of a prior con-

victiun, mistaken identity, and good character. The

notice shall specify for each defense the persons, in-

cluding the Defendant himself, whom he will call as

witnesses at Trial in support thereof. It may be sign-

ed by either the Defendant or his counsel, and shall

be filed with the Court.

*‘c, DISCLOSURES By DEFENDANT. Simultaneously

with Notice of Defenses submitted under Rule

A’

15.2(b), the Defendant shall make available to the

Prosecutor for examination and reproduction:

‘**(1) The names and addresses of all persons,

other than the Defendant himself, whom he will

call as witnesses at trial, together with all

statements made by them in connection with a

particular case;

**(2) The names and addresses of experts

whom he will call at trial, together with the

results of his physical examination and of scien-

tific tests, experiments, or comparisons, in-

cluding all written reports and statements, made

Po in connection with a particular case;

*(3) A list of all papers, documents,

r»otographs and other tangible objects which

he will use at trial.

CORR

**f. DISCLOSURE BY ORDER OF THE CourT. Upon

motion of the Prosecutor showing that he has

substantial need in the preparation of his case for

additional material or information not otherwise

covered by Rule 15.2, that he is unable without un-

due hardship to obtain the substantial equivalent by

other means, and that disclosure thereof will not

violate the Defendant’s Constitutional rights, the

Court, in its discretion, may order any person to

make such material or information available to him.

The Court may, upon request of any persons af-

fected by the Order, vacate or modify the Order if

compliance would be unreasonable or oppressive.”’

Rule 15.2(b) provides,

‘‘Within twenty (20) days after the arraignment

... the Defendant shall provide the Prosecution

with a Written Notice. . . . The Notice shall specify

for each defense the persons, including the Defer

dant himself, whom he calls as witnesses at the Trial

in support thereof.’’ Emphasis added.

It can hardly be imagined that a broader com-

pulsory disclosure provision for the defendant exists

anywhere in the United States. The comments to Rule

15.2 indicate that such was precisely the intent. Com-

ment on Rule 15.2(b) provides,

‘It is intended that the ‘Notice of Defenses’ to be

a broad disclosure of the defendant’s cases, in-

cluding his rebuttal of the State’s case as well as his

own ‘Case in Chief.’ It is to include all matters

which he will present at trial, including those which

he intends to introduce by his own testimony.

‘‘The disclosure requirement goes considerably

beyond notification of affirmative defenses ... .’’

It is respectfully submitted that the Arizona Court

misreads Williams and that the State Procedural Rule at-

tacked herein goes far beyond anything permitted by this

Court. See also Wardius v. Oregon, 412 U.S. 470 (1973).

Petitioner finds two Fifth Amendment violations in

Arizona Rule of Criminal Procedure 15. The first in-

volves the obligation of the defendant in a criminal case

within twenty (20) days from his arraignment to decide

and disclose to the State whether he will testify in his

own behalf, and regarding which specifically enumerated

defenses he will address. A defendant in a criminal case

has the right, under the Fifth Amendment, at the time

his defense is being presented during his trial and not

before to decide whether Gr not he wishes to take the

witness stand in his own defense. He has the right to re-

main silent and not to make any prior disclosures about

his future testimony, including the defenses which he

might assert during such testimony. Prior compulsory

disclosure violates a defendant’s Fifth Amendment right

against self-incrimination. Failure to disclose that the

defendant will testify and to reveal the content of his

testimony, then subjects the defendant to the sanction of

not being permitted to testify at the time of trial. See

Rule 15.7 discussed infra.

Second, Petitioner challenges the validity under the

Fifth Amendment of the State Procedural Rule that re-

quires total disclosure of a defendant’s case, including all

witnesses and all defenses within twenty (20) days of ar- —

raignment and permits exclusion of relevant testimony as

a sanction for failure to comply. The Arizona Court of

Appeals finds no Fifth Amendment violation in such a

Rule. Other State Appellate Courts have ruled to the

contrary on similar disclosure Statutes. See Scott v.

State, 519 P.2d 776 (Alaska 1974); and Prudhomme v.

Superior Court, 85 Cal.Rptr. 129, 466 P.2d 673 (Califor-

nia 1970). The Alaska and California Supreme Courts

have held that similar disclosure requirements violate the

privilege against self-incrimination. The Fifth Amend-

ment must mean the same thing in Arizona as it does in

Alaska and California. This Court should accept this

case and articulate how much pretrial disclosure of infor-

mation by the defense is permissible under the restraints

of the self-incrimination clause.

The Alaska Supreme Court in tracing the history of

the Fifth Amendment, cited the distinguished Opinion of

Mr. JUSTICE BRADLEY speaking for the Supreme Court

in Boyd v. United States, 116 U.S. 616, 631-632 (1886):

‘‘Now it is elementary knowledge that one car-

dinal rule of the Court of Chancery is never to

decree discovery which might tend to convict the

party of a crime, or to forfeit his property. And any

compulsory discovery by extorting the party’s oath,

or compelling the production of his private books

O1 papers, to convict him of a crime, or to forfeit

his property, is contrary to the principles of a free

government. It is abhorrent to the instincts of an

Englishman; it is abhorrent to the instincts of an

American. It may suit the purposes of despotic

power, but it cannot abide a pure atmosphere of

political liberty and personal freedom.”’

Rule 15.2 requires a defendant in a criminal case to

tell the State the precise nature of his defense, who will

testify including the defendant, and what they will say.

The States have ruled differently on whether such a Rule

_ is Constitutionally permissible under the Fifth Amend-

ment. This Court should accept this case and resolve

these conflicting State Court interpretations of the

Federal Constitution.

Il. Arizona Rule Of Criminal Procedure 15.7 Which Per-

mitted The Trial Court To Exclude The Testimony Of

Two. ‘‘Relevant’’ Defense Witnesses As A Sanction For

Not Providing The State With Their Addresses Deprived

Petitioner Of A Fair Trial As Guaranteed By The Sixth

And Fourteenth Amendments.

The Arizona Court of Appeals affirmed the lower

Court’s action in barring two important defense

witnesses from testifying on behalf of the Plantiff con-

cerning the false book entry count. The restriction was

imposed pursuant to Rule 15.7 of the Arizona Rules of

Criminal Procedure because of the Plantiff’s failure to

provide the addresses of the two proposed witnesses in

accordance with the disclosure requirement of Rule 15.2,

even though (1) Petitioner’s disclosure set forth the

names of the witnesses, but indicated that their addresses

were unknown at the time of the disclosure; (2) Peti-

tioner had complied with the spirit and intent of Rule

15.2 in listing JoHN C. SCHAEFER and THOMAS PIERSON

as witnesses; (3) The State already knew SCHAEFER and

Prersons’ addresses; (4) The Arizona Court of Appeals

acknowledged that such testimony might have been

‘‘relevant,’? and (5) The State in its own Motion for

Sanctions even suggested a less stringent remedy than

that imposed upon this Petitioner by the Trial Court, to

wit that the Petitioner comply within ten (10) days of the

Court’s Order to set out the witnesses and that thereafter

the matter be continued for an additional thirty (30) days

to allow the State to review the material (see the State’s

Motion for Sanctions against Defendant Fendler for in-

adequate disclosure filed October 6, 1977 and designated

as Court of Appeals Document Number 101).

Rule 15.7 of the Arizona Rules of Criminal Pro-

cedure set out in full in the Appendix hereto reads in

pertinent part as follows:

‘a. If at any time during the course of the pro-

ceeding it is brought to the attention of the court

that a party has failed to comply with any provi-

sions of this Rule or any Order issued pursuant

thereto, the Court may impose any sanction which it

finds just under the circumstances, including, but

not limited to

Ad EF

**(4) Precluding a party from calling a

witness, offering evidence, or raising a defense

not disclosed ... .”’

The Arizona Rules of disclosure embodied in Rule

15.2 allows a Trial Court to bar relevant defense

testimony of witnesses whose identity and addresses were

known to the State before the indictment was returned.

Partial exchanges between the Court and counsel for the

parties, as well as offers of proof are included in the Ap-

pendix to this Petition as Exhibit E.

Petitioner respectfully submits that the sanctions im-

posed upon him by the Court in accordance with State

Procedural Rule preventing acknowledged relevant

defense witness testimony violated Petitioner’s Sixth and

Fourteenth Amendment rights to due process and a fair

trial. It permits a trial court judge to bar testimony of-

fered by the defense with no inquiry into such matters as

relevance, prejudice to the State or materiality.

In this case, by utilization of the State Procedural

Rule, Petitioner, a defendant in a criminal case was ef-

fectively denied the right to present testimony from

anyone that knew first hand facts pertaining to the false

book entry count. This became particularly apparent

when the State’s key witness Co-Defendant, LEONARD

FORMAN, was allowed to refuse to answer cross-

examination questions concerning the same subject mat-

ter as a result of his exercise of his Fifth Amendment

privilege.

The Arizona Court of Appeals in denying Peti-

tioner’s Sixth Amendment challenge to the Rule of

Criminal Procedure holds in the broadest language that

a Trial Court has the discretion unrestricted by any stan-

dards to preclude relevant testimony if a defendant in a

criminal case commits a technical violation of the Rule.

The Court of Appeals holds,

‘*Pursuant to 17 A.R.S. Rules of Criminal Pro-

cedure, Rule 15.7, the Trial Court is authorized to

impose sanctions upon a party who fails to comply

with any of the provisions of Rule 15. One such

sanction is the preclusion of an _ undisclosed

witnesses’ testimony. In general, the appropriate

sanction for noncompliance with Rule 15 is left to

the sound discretion of the Trial Court.’’ See Court

of Appeals Opinion.

The Court of Appeals permitted the sanction impos-

ed by the Rule while at the same time noting, ‘‘Although

it is unlikely that the State would have been surprised by

the testimony of any of the precluded witnesses ... .’’

The United States Court of Appeals for the Ninth

Circuit was asked to review the Constitutional validity of

Arizona Criminal Rules 15.2 and 15.7. Although

deciding the case on other grounds, the Circuit Court in

dicta points out the problem,

‘*Arizona permits imposition of sanctions on a

criminal defendant for failure to comply with rules

requiring notice to the Prosecution of certain

defenses and the names of witnesses. See Arizona

Rule of Criminal Procedure 15.7. The more extreme

sanctions include striking a defense and prohibiting

testimony by a defense witness or the accused

himself. See Arizona Rule of Criminal Procedure

15.7(a)(4). The issue whether these sanctions can be

applied for breach of Arizona Rule of Criminal

Procedure 15.2 without offending the confrontation

clause of the Sixth Amendment and the right to pre-

sent a defense which is implicit in the Sixth Amend-

ment is a Constitutional question of importance to

the administration of criminal justice. This question

was expressly reserved by the Srnoreme Court in

Wardius v. Oregon, 412 U.S. 470, 472 n.4, 93 S.Ct.

2208, 2211, 37 L.Ed.2d 82 (1973).

Chee

‘“‘We reiterate that imposition of the extreme

sanctions contained in the Arizona Rules would pre-

sent important questions of Constitutional dimen-

sions if raised in a proper case ....’’ Robins v.

Cardwell, 618 F.2d 581 (9th Cir. 1980).

Arizona’s Criminal Disclosure Rule 15.2 and 15.7

must constitute the broadest in the Nation. The sanctions

for failure to comply, even when no prejudice is

established, are the harshest.

State Rules of Procedure should attempt to aid in

the truth finding function. The Rules of Procedure

challenged herein do not serve that function. Rather they

provided the vehicle wherein the truth may be suppress-

ed. Such is not the purpose of the criminal justice

system. Such a rule does not comport with the demands

of the Sixth and Fourteenth Amendments. This

Honorable Court should address this important Con-

stitutional question.

CONCLUSION

For the reasons as stated herein, it is respectfully re-

quested that this Court grant the Petition for Writ of

Certiorari.

Respectfully submitted,

/s/ THomaAs E. Horn

Thomas E. Horn, Esquire

240 Stockton Street

Tenth Floor

San Francisco, California 94108

(415) 981-2534

Attorney for Petitioner,

Robert H. Fendler

EXHIBIT A

IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

1 CA-CR 3376

1 CA-CR 3748

(Consolidated)

STATE OF ARIZONA, Appellee,

ROBERT H. FENDLER, Appellant.

OPINION

An Appeal from the Superior Court of Maricopa County

Cause No. CR-96776 SGJ

The Honorable Charles L. Hardy, Judge

AFFIRMED IN PART; REVERSED IN PART

Robert K. Corbin, Attorney General

By William J. Schafer III, Chief Counsel, Criminal

Division

Philip J. MacDonnell, Director, Special Prosecutions

Division

Michael C. Cudahy, Assistant Attorney General

Samuel P. Goddard III, Former Assistant Attorney

General

Attorneys for Appellee Phoenix

Southern & Mulhall

By E. Reid Southern Phoenix

and

Thomas Horn ; San Francisco, CA.

Attorneys for Appellant

WreN, Vice Chief Judge

On March 7, 1977, Robert H. Fendler (appellant), James

R. Holman and Leonard H. Foreman were charged in a

seventeen count indictment with criminal conduct in connec-

tion with the operation of several financial institutions head-

quartered in Phoenix, Arizona. The firms involved included

the Lincoln and American Thrift Associations and the

American Bank of Commerce. On October 13, 1977, co-

defendant, Leonard Foreman, entered into a plea agreement

with the state and plead guilty to the charge of conspiracy.

(Count One). The trial subsequently commenced on October

17, 1977, and continued through February 27, 1978, at which

time the jury found appellant guilty of conspiracy, A.R.S.

§13-331 (now A.R.S. §13-1003), false book entry, A.R.S.

§10-193 (now A.R.S. §10-136), and failure to file a state cor-

porate income tax return. A.R.S. §43-179 (now A.R.S.

§43-842). On April 14, 1978, the trial court dismissed the con-

spiracy count on the basis of duplicity and thereafter entered

judgments of guilt on each of the remaining two counts. Ap-

pellant was sentenced to serve not less than one nor more

than three years on the failure to file count, and not less than

four nor more than five years on the false book entry count.

Appellant filed his notice of appeal from the entry of

judgment on April 24, 1978. (1 CA-CR 3376). On June 13,

1978, appellant filed a motion to vacate judgment pursuant to

Rule 24.2, Arizona Rules of Criminal Procedure, 17 A.R.S.

The motion was denied on September 28, 1978. Appellant

thereafter filed an untimely notice of appeal from the order

denying his motion to vacate. (1 CA-CR 3748). However, this

Court suspended the filing requirements and the appeals were

subsequently consolidated.

Since the appellant raises a substantial number of issues

in his two appeals, we have set forth the necessary facts in the

discussion of each individual question.

Challenge To The Grand Jury

Appellant contends that the state grand jury was not im-

paneled according to law because prospective grand jurors

were excused from service by the state grand jury commis-

sioner (Commissioner).' Appellant asserts that the Commis-

' The jury commissioner from the county in which the ‘‘Assign-

ment Judge’’ sits acts as the state grand jury commissioner for the

purpose of assisting in the impanelment of the state grand jury.

A.R.S. §21-423(B), Rule 12.22(C), Arizona Rules of Crimina! Pro-

cedure, 17 A.R.S.

sioner had no authority to unilaterally excuse prospective state

grand jurors, or, in the alternative, if she (Commissioner) was

vested with some discretionary authority, such discretion was

abused under the facts of the present case. He further asserts

that the indictment should have been dismissed because the

excusals materially altered the composition of the grand jury

and eliminated its statewide character.

The impanelment of state grand juries is regulated by

statute and the Arizona Rules of Criminal Procedure. A.R.S.

§21-421 ef. seg., Rule 12, Arizona Rules of Criminal Pro-

cedure, 17 A.R.S. The selection and preparation of state

grand jurors is specifically governed by Rule 12.22, Arizona

Rules of Criminal Procedure, 17 A.R.S., which divides the

process into three distinct steps.

The first step is governed by Rule 12.22(B) which is

designed to establish the initial pool of prospective state grand

jurors:

Assistance.... Upon direction of the Assignment

Judge, the jury commissioners of the respective counties

shall submit to the Assignment Judge, within such time

as he may direct, a specified number of prospective State

grand jurors selected at random from their qualified jury

boxes, wheels or rosters (otherwise known as current jury

| ee

The next step is governed by Rule 12.22(C) which pro-

vides that:

The Assignment Judge shall cause a questionnaire to be

sent to each prospective State grand juror. Following

return of such questionnaires, the jury commissioner of

the county in which the Assignment Judge is serving shall

select at random from those responding prospective State

grand jurors, who are qualified and not excused, a

number of prospective State grand jurors sufficient for

final selection of State grand jurors; and this number

shall be summoned to appear before the assignment judge

for such final selection. (emphasis supplied.)

Appellant argues that the Commissioner’s only function

pursuant to Rule 12.22(C) is to make a random selection from

those prospective grand jurors who respond to the question-

naire, since the county jury commissioners have already com-

pleted the qualification and excusal process by the time the

names are submitted to the ‘‘Assignment Judge.’’ We do not

agree.

Rule 12.22(B) does not authorize the county jury commis-

sioners to screen prospective candidates for the state grand

jury. Their sole function is to forward a specified number of

randomly selected names from their ‘‘current jury lists.’’?

On the other hand, we believe that Rule 12.22(C) con-

templates that the initial qualification and excusal of prospec-

tive state grand jurors is to be undertaken by the Commis-

sioner.’ Consequently, we hold that the Commissioner

possessed the necessary authority to excuse those prospective

? The persons’ names who appear on the ‘‘current jury lists’’

have already qualified and not been excused from county jury ser-

vice. A.R.S. §§21-315, 21-321. We can find nothing explicit or im-

plicit in the language of Rule 12.22(B) which authorizes the county

jury commissioners to screen candidates for the state grand jury.

Furthermore, we believe that the language in Rule 12.22(C) is

dispositive of the issue.

> Our conclusion rests upon the interrelationship of several fac-

tors. First, the use of new questionnaires is typical of the process

used in Arizona to qualify and excuse persons from jury service.

See A.R.S. §21-314. Moreover, the requirement that the Commis-

sioner randomly select a number sufficient for final selection from

those responding prospective state grand jurors is expressly

qualified by the phrase ‘‘who are qualified and not excused’’,

which, we interpret, when read in conjunction with the question-

naire requirement, as authorizing the Commissioner to engage in

the qualification end excusal process. We are also convinced that it

is eminently more practical for the Commissioner to engage in these

activities because he or she is charged with the responsibility of

coordinating the selection process and will generally have a better

perspective of the specific needs of a particular state grand jury.

grand jurors who in her opinion were incapable of serving

without ‘‘undue hardship.’’*

The office of ‘‘jury commissioner’? was established to

assist the courts with the jury selection process and to insulate

judges from having to consider every request for excusal.

A.R.S. §21-131, See United States v. Flynn, 216 F.2d 354

(2nd Cir. 1954). To achieve these objectives, the jury commis-

sioners were given a broad measure of unilateral discretion in

determining whether a prospective juror should be ‘excused

from service. A.R.S. §21-315, See United States v. Gurney,

393 F.Supp. 688 (1974); United States v. Coppola, 296

F.Supp. 903 (1969).° While it is true, in the instant case, that

the Commissioner was not provided with judicial guidelines

regarding the grounds for excusal from state grand jury ser-

vice, she was guided by the statutory standard of ‘‘undue

hardship’’, and the local superior court guidelines concerning

the various grounds upon which a person could be excused

from county jury service.

* A.R.S. §21-202 provides: ‘‘The following persons shall, upon

their timely application to the court, be excused from service as a

juror: ... 2) Any person upon whom service as a juror would, mm

the judgment of the court impose an undue hardship.’’ (emphasis

supplied) While the above statute refers to judicial excusals and

Rule 12.22(C) makes no specific reference to the statutory standard

of undue hardship, we believe that the standard is implicit in the

Rule by virtue of Rule 12.22(A), A.R.S. §21-422 and A.R.S.

§21-315.

> We recognize that A.R.S. §21-315 was enacted prior to the crea-

tion of the state grand jury and concerns the jury commissioner’s

discretionary authority to excuse persons from county jury service.

However, A.R.S. §21-422(A) provides that ‘‘the law applicable to

county grand juries . . . shall apply to the state grand juries except

insofar as it is in conflict with the article.’’ Since there is no

language in A.R.S. §21-422 et. seq. or Rule 12, Arizona Rules of

Criminal Procedure, regarding the extent of the Commissioner’s

discretionary authority, we hold that the Commissioner possesses

the same degree as he or she would possess in determining whether

a person should be excused from county jury service.

While the record reflects that the Commissioner deviated

from the county guidelines in particular instances, we find no

abuse of discretion.

However, even if we determined that certain jurors were

erroneously excused, appellant would be confronted by the

rule that a conviction will not be reversed for error in the

selection of the grand jury unless the defendant is able to

show actual prejudice.* State v. Webb, 101 Ariz. 307, 419

P.2d 91 (1966). Appellant’s only argument along these lines is

that the Commissioner’s action resulted in a geographically

imbalanced panel comprised of 15 Maricopa County residents

and one resident from Graham County. See A.R.S.

§21-423(A). This fact alone fails to even make out a prima

facie showing of ‘‘actual prejudice’’ since a defendant is not

entitled to be tried or investigated by any particular juror or

jurors from separate geographical areas. See State v. Webb.

“If the jurors who actually serve are impartial and fair, the

fact that the other impartial jurors are erroneously excused is

not reversible error.’’’ State v. Webb, 101 Ariz. at 309, 419

P.2d at 93.

Tax Count

Appellant next contends that his conviction for failure to -

file a 1974 state corporate income tax return on behalf of

American Thrift Association (American Thrift) was improper

and therefore must be reversed.

Appellant was convicted of violating A.R.S. §43-179(f)

(now A.R.S. §43-842) which provides that:

Any person who, within the time required by or under

the provisions of this title, willfully fails to file any return

* While we realize that State v. Webb concerned excusals by the

court, we hold that the-doctrine of ‘‘actual prejudice’’ extends to

excusals by a jury commissioner.

’ The appellant has made no attempt in this appeal to establish

that the grand jurors who returned the indictment acted unfairly.

~~.

or to supply any information with intent to evade any tax

imposed by this title, is punishable by imprisonment in

the county jail not to exceed one year, or in the state

prison.not to exceed five years, or by fine of not more

than five thousand dollars, or by both such fine and im-

prisonment, at the discretion of the court.®

Appellant initially claims that the indictment was defec-

tive because it failed to specify his corporate relationship with

American Thrift and to set forth his duty to perform the act

in respect of which the violation occurred.’ The state responds

by arguifg that the issue was not raised in a timely manner

and therefore is waived for purposes of appeal. Rules 13.5(c),

16.1(c), Arizona Rules of Criminal Procedure, 17 A.R.S. We

agree. After reviewing the record, we find that the appellant

failed to specifically raise the issue in accordance with the re-

quirements of Rule 16.1(b),'° which now precludes him from

* **Person’’ is defined as including ‘‘individuals, fiduciaries, part-

nerships, and corporations’? A.R.S. §43-101(h). (now A.R.S.

§43-104(20)).

**Corporation. ‘Corporation’ shall mean and include all cor-

porations, joint stock companies, banks, insurance companies,

business trusts or so-called ‘Massachusetts trusts’, investment

companies, building and loan associations, and other associa-

tions whether incorporated or unincorporated.’’ A.R.S.

§43-101(j). (now A.R.S. §43-104(3)).

* Count 12 of the indictment provides that:

“On or about the 15th day of April, 1975, in the County of

Maricopa, State of Arizona, RoBERT H. FENDLER and JAMES

R. HOLMAN did, within the time required by or under the pro-

visions of Title 43 of the Arizona Revised Statutes, willfully

fail to file a return or to supply information, to wit: an

Arizona State Corporate Income Tax Return for AMERICAN

THRIFT ASSOCIATION (an Arizona corporation) for the taxable

year ended December 31, 1974; with intent to evade a tax im-

posed by Title 43 of the Arizona Revised Statutes, all in viola-

tion of Arizona Revised Statutes §43-141 (as amended),

§43-179; §13-138, §13-139 and §13-140.”’

'© Rule 16.1(b) provides:

‘‘Making of Motions Before Trial. All motions specified in

the omnibus hearing form shall be made at or before an om-

asserting the issue on appeal. Rules 13.5(c) and 16.1(c), State

v. Puryear, 121 Ariz. 359, 590 P.2d 475 (App. 1979).

He next urges that the tax conviction must fall because

American Thrift was not obligated to file a return for the tax-

able period ending December 31, 1974. The resolution of this

issue revolves around the construction of certain language

found in A.R.S. §43-141(b)(1) (now A.R.S. §43-307) which

provides that:

Every corporation subject to the tax imposed by this arti-

cle shall make a return to the tax commission. . . . (em-

phasis supplied.)

Appellant asserts that the underscored language should be in-

terpreted as meaning that a corporation’s duty to file is

dependent upon whether state taxes are actually due and ow-

ing. We do not agree.

While our appellate courts have never been called upon

to interpret the language in question, the Department of

Revenue, which is charged with the responsibility of prescrib-

ing rules and regulations for the enforcement of the act

(A.R.S. §43-175(C)) (now A.R.S. §43-223), has construed the

language to mean that ‘‘every corporation not expressly ex-

empt from tax must make a return of income, regardless of

the amount of its net income.’’ A.C.C.R. R15-2-141(b)-1(a)

(1954). (emphasis supplied.)'' Also see A.C.C.R.

R15-2-141(b)-1(b) (1954). While we are not bound by ad-

nibus hearing. Any other motion, defense, objection or request

which is capable of determination without the trial of the

general issue shall, whenever possible, be made at or before an

omnibus hearing, but, in any event, no later than 20 days prior

to the date set for trial. Lack of jurisdiction may be raised at

any time.”’

'' No claim has been made that American Thrift was exempt

from taxation. See A.R.S. §43-147 (Now A.R.S. §43-1201).

Moreover, we interpret the quoted language as requiring a corpora-

tion to file a return even if it shows a loss for the taxable period in

question. d.

‘%

ministrative interpretation, ‘‘where long continued and in

cases of ambiguity we will acquiesce therein.’’ City of Mesa v.

Killingsworth, 96 Ariz. 290, 296, 394 P.2d 410, 414 (1964);

Also see Long v. Dick, 87 Ariz. 25, 347 P.2d 581 (1959); 80

A.L.R.2d 949 (1961).'?

Appellant’s additional contention that American Thrift

was relieved of its responsibility to file a return because it

ceased to exist as the result of a tax free reorganization is also

without merit. The regulations clearly state that if a corpora-

tion exists during any portion of a taxable year, it is ‘‘re-

quired to make a return for that fractional part of a year dur-

ing which it was in existence.’’'® Also see A.C.C.R.

R15-2-152(g)-c. '

Appellant next contends that in order to sustain a convic-

tion under A.R.S. §43-179(f), (now A.R.S. §43-842), the state

needed to prove that: a) appellant had a duty to file American

Thrift’s 1974 corporate income tax return b) American

Thrift’s failure to file the return was the result of appellant’s

intentional conduct c) American Thrift incurred actual tax

liability for the year 1974, and d) appellant acted with the in-

tent to evade the payment of taxes actually due and owing.

We are not in complete agreement.

In our opinion, in order to establish a violation of the

above section, the state must prove beyond a reasonable

doubt that the defendant: 1) was legally obligated to file the

return 2) willfully failed to file the return, and 3) acted with

the intent to evade the payment of state income tax.

'? We also note that appellant has proffered no authority or

reasoning which would justify a contrary conclusion.

'S A.C.C.R. R15-2-141(b)-1(b)(1954) states, in pertinent part:

**(b) A corporation having an existence during any portion of a

taxable year is required to make a return. If a corporation was not

in existence throughout an annual accounting period (either calen-

_ dar year or fiscal year), the corporation is required to make a

return for that fractional part of a year during which it was in ex-

istence.’’ (emphasis supplied.)

10a

As for the first element, there appears to be no dispute,

and the record supports the conclusion that appellant, as

general manager of American Thrift, was obligated to file a

return on behalf of American Thrift. See A.R.S.

§43-141(b)(2). (now A.R.S. §43-307).

In establishing the second element of the offense the state

bore the burden of proving that appellant ‘‘willfully’’ failed

to file American Thrift’s 1974 state corporate income tax

return. While our courts have never passed upon the meaning

of the word ‘‘willfully’’ as used in the context of our tax

statutes, the United States Supreme Court has interpreted the

word as meaning an intentional violation of a known legal du-

ty. United States v. Bishop, 412 U.S. 346, 93 S.Ct. 2008, 36

L.Ed.2d 94 (1973).'*

As a consequence, the failure to file must be intentional

and deliberate rather than due to negligence, carelessness, or

good faith mistake. United States v. Farris, 517 F.2d 226 (7th

Cir.), cert. denied, 423 U.S. 892, 96 S.Ct. 189, 46 L.Ed.2d

123 (1975). Thus, in order to convict, the jury must find that

the defendant intentionally and deliberately failed to file the

required return knowing that he was legally obliged to do so.

United States v. McCorkle, 511 F.2d 482 (7th Cir.), cert.

denied, 423 U.S. 826, 96 S.Ct. 43, 46 L.Ed.2d 43 (1975).

'* A.R.S. §1-215(36) provides that:

‘*In the statutes and laws of this state, unless the context other-

wise requires:

‘Wilfully,’ when applied to the intent with which an act is done

or omitted, implies simply a purpose or willingness to commit

the act, or make the omission referred to. It does not require

any intent to violate law, or injure another or to acquire any

advantage.”’

However, since our tax statutes are basically adopted from federal

law, we will give great weight to the interpretations given similar

statutes by federal authorities. Because we believe that the context

requires otherwise we hold that the statutory definition is inap-

plicable in the present case.

lla

Again we believe that the evidence was more than suffi-

cient for the jury to conclude that appellant acted ‘‘willfully”’

in failing to file the American Thrift return.

A review of the record indicates that appellant admitted

that he was an attorney and a tax specialist. This fact alone

would permit the inference that appellant knew of his duty to

file the return. United States v. Cirillo, 251 F.2d 638, 639 (3rd

Cir. 1957), cert. denied, 356 U.S. 949, 78 S.Ct. 914, 2

L.Ed.2d 843 (1958), Leet v. State, 203 Md. 285, 100 A.2d 789

(App. 1953). The evidence further discloses that he (appellant)

had an intimate working knowledge of American Thrift’s

business affairs which is another factor implying knowledge

of his duty to file. Lumetta v. United States, 362 F.2d 644

(8th Cir. 1966).

Finally, corporate returns were filed by American Thrift

for the years 1970, 1971 and 1972, years in which no state tax

was due and owing, each of which were signed by appellant in

his capacity as general manager. These previous filings are

also indicative of appellant’s awareness of his obligation to

file, despite the fact that no taxes were due. United States v.

McCabe, 416 F.2d 957 (7th Cir. 1969), cert. denied, 396 U.S.

‘1058, 90 S.Ct. 751, 24 L.Ed.2d 752 (1970), United States v.

Garguilo, 554 F.2d 59 (2nd Cir. 1977); United States v.

Lumetta.

The final element the state had to prove was that the ap-

pellant acted with an intent to evade the payment of state in-

come taxes. It is here that appellant purportedly finds support

for his claim that the trial court erred when it ruled that the

state did not have to prove that appellant acted with an intent

to evade the payment of state income taxes actually due and

owing. However, appellant’s entire argument rests upon the

assumption that the phrase ‘‘intent to evade’’ found in A.R.S.

§43-179(f) (now A.R.S. §43-842) is the functional equivalent

of the phrase ‘‘attempt to evade’’ found in 26 U.S.C. §7201,

the federal tax evasion statute, which has been construed as

requiring proof that a tax is duesUnited States v. Garber, 607

F.2d 92 (Sth Cir. 1979).

12a

The cardinal rule of statutory construction is to give ef-

fect to the legislature’s intent. State ex rel. Flournoy v.

Mangum, 113 Ariz. 151, 548 P.2d 1148 (1976). In ascertaining

that intent, we look to the words, context, subject matter, ef-

fects and consequences, reason and the spirit of the law. State

ex rel. Flournoy v. Mangum; State v. Schoner, 121 Ariz. 528,

591 P.2d 1305 (App. 1979). Furthermore, the words of the

statute should be given their plain and ordinary meaning,

unless it appears from the context that a different meaning

should control. State v. Schoner, State v. Arthur,

Ariz. , 608 P.2d 90 (1980). While we acknowledge that

A.R.S. §43-179(f) (now A.R.S. §43-842) is a hybrid version of

several different federal tax statutes, See 26 U.S.C. §§7203,

7207, the thrust of the offense concerns a willful failure to file

a return rather than an attempt to evade the payment of taxes

actually due and owing. As a result, we believe that the most

sensible construction would be to find that the intent element

is satisfied upon a showing that the defendant acted with the

requisite intent at the time of the alleged violation, regardless

of whether taxes were actually due. A review of evidence leads

us to believe that the state sufficiently met its burden.

Appellant next argues that the trial court erred when it

precluded his expert witnesses from controverting material

matters testified to by the state’s expert witnesses.

The state was permitted, in its case-in-chief, to produce

several expert witnesses who testified that American Thrift

had not been involved in a tax-free reorganization in 1974.'°

As a consequence, they concluded that American Thrift had

incurred substantial tax liability, as the result of the sale of its

assets to Lincoln Thrift.'* One of the state’s experts also

'SIn essence, the state’s experts testified that the sale of

American Thrift’s assets to Lincoln Thrift Association (Lincoln

Thrift) and the subsequent purported merger of American Thrift in-

to the American Bank of Commerce did not qualify as an in-

tegrated tax-free reorganization under 26 U.S.C. §368(1)(A)(F).

'6 No objection was made to the introduction of this testimony

apparently because appellant believed that the state was attempting

to meet its burden of proving that a tax was due and owing.

13a

testified to the effect that even if American Thrift had merged

with the American Bank of Commerce, that it (American

Thrift) still would have been responsible for filing a return for

that part of the taxable year during which it was in ex-

istence.'’ However, when appellant attempted in his case-in-

chief, to rebut the evidence with his own expert testimony, the

trial court sustained the state’s objection ruling that it would

not allow the witnesses to lecture the jury on the law of the

case.'®

The court further denied appellant’s subsequent motion

to strike.'* While the admission of expert testimony falls

largely within the sound discretion of the trial court, State v.

Dickey, Ariz. , 608 P.2d 302 (1980), State v.

Fierro, 124 Ariz. 182, 603 P.2d 74 (1979), if the state

endeavors to establish criminal liability by way of expert

testimony then the defense is entitled, as a matter of fun-

damental fairness, to use its own expert testimony. United

States v. Caserta, 199 F.2d 905 (3rd Cir. 1952), 35

Am.Jur.2d, Federal Tax Enforcement, §151. Moreover, while

we agree with the trial court’s conclusion that it was improper

'? Again, no objection was tendered because appellant intended

to rebut the conclusion with his own expert’s testimony that

American Thrift was not ‘‘subject to’’ state corporate income taxes

in 1974.

'* Appellant’s offer of proof indicated that his expert witnesses

would testify that based upon their interpretation of statutes,

revenue rulings and case law that 1) American Thrift had been in-

volved in a tax-free reorganization under federal law and 2)

American Thrift was not obligated to file a return as a result of the

reorganization. In sustaining the state’s objection, the trial court

reasoned that the testimony concerned only questions of law, which

fell within the special province of the court, and not the witnesses.

'? The gist of appellant’s motion was that the court should strike

all of the state’s expert testimony relating to American Thrift’s tax

responsibilities for 1974, since the defense was precluded from

rebutting it with its own expert witnesses.

l4a

for the defense witnesses to lecture the jury on the law of the

case, the prospective testimony was clearly admissible for the

limited purpose of lending credence to appellant’s assertion

that he never intended to evade the payment of taxes because

his research led him to believe otherwise. The mere fact that

appellant was allowed to testify concerning his reasons for

failing to file American Thrift’s return did not cure this error.

Since appellant’s conviction on the tax count (Count Twelve)

must be reversed and remanded for a new trial, we do not

believe that it is necessary to address the remaining issues

raised by appellant in respect to that count.

False Book Entry

Appellant contends that the false book entry count

(Count Three) was defective on the issue of appellant’s intent

to defraud. He asserts that ‘‘in the indictment an ‘intent to

defraud’ also includes an intent to ‘destroy’, ‘alter’ and an

‘intent to mulilate [sic] or falsify.’’’ But that under the ter-

minology of the indictment there is no requirement that the

acts of ‘‘making or concurring in the making of false entries

or omissions’’ be done with any intent at all. The indictment

thus makes the act of false book entry a crime of strict liabili-

ty. He further alleges that he preserved the issue for purposes

of appeal. We do not agree. We have reviewed the record and

find that appellant did not raise this issue within the time pro-

visions set forth in Rule 16.1(b), Arizona Rules of Criminal

Procedure, 17 A.R.S. As a result, it is waived for purposes of

appeal. Rules 13.5(c), 16.1(c), Arizona Rules of Criminal Pro-

cedure, 17 A.R.S.

Appellant further contends that the trial court’s jury in-

struction on Count Three was also defective on the issue of

appellant’s intent to defraud.

The jury was instructed that they had to find beyond a

reasonable doubt that the entries were made with an ‘‘intent

to defraud.’’ ‘‘Intent to defraud’’ was subsequently defined as

an “‘intent to deceive another person.’’ (emphasis supplied.)

Appellant contends that A.R.S. §10-193(A)(2) (Repealed Laws

15a

1975, Ch. 69 §7, effective . ‘ly 1, 1976) specifies that the ‘‘in-

tent to defraud’’ must be directed toward the corporation

itself, rather than just ‘‘another person.’’?® We do not agree.

There is nothing in the statute which indicates towards whom

the ‘‘intent to defraud’’ must be directed. Moreover, ap-

pellant’s construction does violence to the general aim of

these statutes which is to insure that persons who inspect the

books will receive a true and accurate description of the par-

ticular entity’s condition. United States v. Darby, 289 U.S.

224, 53 S.Ct. 573, 77 L.Ed. 1137 (1933). Based upon the

foregoing, we find no error.

Appellant next claims that the state failed to prove that

the 74-1 journal entries were ‘‘false’’ within the meaning of

A.R.S. §10-193(A)(2).?!

The evidence adduced at the trial established that Lincoln

Thrift had adopted a double entry accounting system. In its

most simplified form this meant that each entry into its

general ledger was supported by an external document with a

designated journal entry number. In essence, the external

document acted as the source of original entry into the

general ledger. In accordance with the appellant’s instructions,

Leonard Foreman prepared adjusting journal entry 74-1 to

record the acquisition of American Thrift’s offices and ac-

counts. However, in order for the credit and debit entries to

balance, and therefore show that Lincoln Thrift had received

value for the acquisitions, appellant directed Foreman to

capitalize certain expenses which were thereafter entered in the

7? A.R.S. §10-193(A)(2) provided that:

**A. It is unlawful for a director, officer or agent of a corpora-

tion or association to: ...

2. Defraud, destroy, alter, mutilate or falsify any books,

papers, writings or securities belonging to such corporation or

association, or make, or concur in making, any false entries or

Omit or concur in omitting to make any material entry, in a

book of accounts or other record or document kept by the cor-

poration or association, with intent to defraud.”’

*! See footnote 20.

°*

16a

debit (asset) column of the entry. On June 30, 1974, the en-

tries were posted in Lincoln Thrift’s general ledger with the

corresponding designation of 74-1.

Appellant initially argues that the state’s expert witnesses

only established that the entries in question were not in

accordance with generally accepted accounting standards, not

that the entries were ‘‘false’’.*? We do not agree.

While much of the expert’s testimony was couched in

terms of generally accepted accounting principles, the entire

tenor of their testimony was to the effect that certain of the

entries had no basis in fact as well as in theory.

Appellant also directs our attention to the following col-

loquy between his counsel and Leonard Foreman, which he

contends conclusively established that the entries were not

‘*false’’ within the meaning of A.R.S. §10-193(A)(2).

[By appellant’s counsel]

Q. ... After making the adjusting entries [74-1] to the

books of Lincoln Thrift Association, did the Lincoln

Thrift Association books reflect the total cost to Lincoln

Thrift of the transactions with American Thrift?

A. Yes.

In support of this argument, he cites the cases of State v.

Heron, 94 Ariz. 81, 381 P.2d 764 (1963) and State v. Grow,

93 Idaho 588, 468 P.2d 320 (1970). In Heron, with which this

Court is particularly familiar, the indictment charged the

defendant with having made a ‘‘false’’ deposit entry because

*‘in truth or fact said [sum] was never deposited’’ 94 Ariz. at

85, 381 P.2d at 767. While the state conceded that the deposit

had been actually made, it nevertheless contended that a true

and correct entry made with a fradulent intent constituted a

‘*false’’ entry under the statute. (A.R.S. §10-193(A)(2)). After

22 The state specifically alleged that the following intangible asset

categories were ‘‘false’’: 1) goodwill 2) acquisitions and retention 3)

branch offices 4) investment securities.

i.’

17a

an extensive review of the case law in the area, the Supreme

Court rejected the state’s position, reasoning that ‘‘a recital

on the books which speaks the truth cannot be a ‘false’ en-

try.” 94 Ariz. at 85, 381 P.2d at 767.”

In our opinion, Heron is factually distinguishable simply

because the accuracy of certain 74-1 entries was at issue from

the commencement of this case. In United States v. Darby,

289 U.S. at 225, 53 S.Ct. at 574, 77 L.Ed. at 1138, cited with

approval in Heron, the United States Supreme Court observed

that:

The crime of making false entries by an officer of a na-

tional bank with the intent to defraud ... includes any

entry on the books of the bank which is intentionally

made to represent what is not true or does not exist, .. .

(citation omitted). . . . To read the statute otherwise is to

be forgetful of its aim. Its aim was to give assurance that

upon an inspection of a bank, public officers and others

would discover in its books of account a picture of its

true condition. (citation omitted.) (emphasis supplied.)

While the 74-1 entries, taken as a whole, may reflect ap-

pellant’s personal analysis of the ‘‘costs’’** involved in acquir-

ing American Thrift’s offices and accounts, the evidence over-

whelmingly supports the jury’s conclusion that certain of the

entries represented assets which simply did not exist. Conse-

quently, we find appellant’s argument to be without merit.

Appellant further contends that the trial court erroneous-

ly stated that a ‘‘failure to comply with generally accepted ac-

counting principles’? was an element of the crime of ‘‘false

book entry’? under A.R.S. §10-193(A)(2). In support of his

claim appellant refers this Court to the Reporter’s Transcript

dated February 1, 1978, at page 45. The citation fails to sup-

?> We have reviewed the Grow decision and find that we need not

address it since it is factually distinguishable from the present case.

* Costs’? meaning the debit (asset) and credit (liability) entries

reflected in adjusting journal entry 74-1.

18a

port appellant’s assertion.** We have also reviewed the jury

instruction on Count Three and find that no mention was

made of generally accepted accounting principles.

Appellant next contends that the trial court prevented

him from developing a main theory of his defense by

precluding him from testifying on various subjects which were

allegedly related to his ‘‘intent’’ at the time he formulated the

entries (74-1) in question.

We begin our analysis premised on the fundamental prin-

ciple that the relevance and admissability of offered evidence

lies within the sound discretion of the trial court and such

discretion will not be disturbed on appeal absent a showing

that it was clearly abused. State v. Tulipane, 122 Ariz. 557,

596 P.2d 695 (1979); State v. Mosley, 119 Ariz. 393, 581 P.2d

238 (1978).

In support of his claim of error on the issue of intent ap-

pellant first asserts that the trial court erroneously precluded

him from testifying as to his ‘‘state of mind’’ leading up to

the formation of the American Bank of Commerce because it

was in fact relevant to the 74-1 entries. A review of the record

discloses that during the argument following the state’s objec-

tion to such testimony that appellant’s counsel never once

claimed that the evidence was relevant to the ‘‘false book en-

try’? charge. Having failed to offer the evidence for the pur-

pose suggested in this appeal, appellant cannot now predicate

error based upon its exclusion. Ross v. State, 23 Ariz. 302,

203 P. 552 (1922).

Appellant next contends that he was precluded from testi-

fying that he had relied upon legal research to support the

journal entries (74-1). Again the record does not support ap-

pellant’s claim, because he in fact testified on several occa-

sions that he had done legal research and that each and every

*> The statement we are referred to was made outside the

presence of the jury in reference to an element of a different

offense.

19a

entry was supported by relevant tax law. We note that the

trial court did prevent appellant from discussing the contents

and holdings of particular cases on the basis that it was inap-

propriate for the witness to lecture the jury on the law of the

case. We find no error.

Appellant further questions the trial court’s ruling pro-

hibiting him from testifying that he had relied on industry

practices in formulating the accounting entries (74-1). The

record discloses that appellant was asked if he had depended

upon any other source of information to justify the journal

entries. He (appellant) answered that he had relied on what

other banks and saving and loan associations had done in the

area. The state’s relevancy objection was sustained. However,

no motion to strike was tendered, consequently, even if the

court erred, it was harmless since the answer remained in the

record.*® Greene v. Hereford, 12 Ariz. 85, 95 P. 105 (1908);

Ross v. State; State v. Abbey, 13 Ariz.App. 55, 474 P.2d 62

(1970).

Appellant was also precluded from testifying about the

actual accounting practices of other financial institutions and

how his method of operation had purportedly conformed to

what the others had done. He argues that industry ‘‘custom

and usage’’ are relevant to a ‘‘state of mind’’ defense and

therefore the testimony was erroneously excluded.?’ While we

are not prepared to say that such evidence could never be pro-

*6 We have also reviewed the court’s jury instruction on the sub-

ject of objections. The jury was informed that a witness will

sometimes answer a question before an objection is interposed, if

the court sustained the objection, that it would then have to rule on

a motion to strike, and if it granted the motion, that it would in-

form them (jury) to disregard the answer. Since the jury was not so

informed we find nothing in conflict with the above cited rule.

2? The case of Lingenfelter v. Title Insurance Company of Min-

nesota, 442 F.Supp. 981 (1977), cited by appellant in support of his

position, is clearly distinguishable not only on its facts but also on

the law of the case.

20a

bative of a person’s intent, appellant’s assignment must fail

for lack of an adequate offer of pfoof. At no time did ap-

pellant proffer to the court what he intended to introduce by

way of specific testimony or otherwise. His counsel’s repeated

references to ‘‘state of mind’’ failed to sufficiently place the

trial court in a position of being able to determine whether

the proposed evidence was in any way probative of appellant’s

‘intent’? at the time he formulated the entries. Absent such

specification, appellant cannot claim error on appeal.

We have also reviewed appellant’s complaints concerning

other evidentiary rulings on the question of ‘‘intent’’ and find

them unsupported by the record and therefore without merit.

Appellant next contends that the trial court erred in

refusing to give an instruction on the defense of advice of

counsel. While there appears to be no Arizona case law on the

subject, the general rule is that in order to be entitled to such

an instruction the defendant must introduce evidence which

shows that: 1) he placed all the relevant facts known to him

. before his counsel 2) counsel rendered an opinion on the pro-

priety of a particular course of action 3) he believed that the

opinion was rendered in good faith, and 4) in reasonable

reliance upon that opinion he engaged in a course of action

which corresponded with his counsel’s opinion. United States

v. Danser, 26 F.R.D. 580, 587 (1959), affirmed, 281 F.2d 492

(ist Cir. 1960), Also see Bursten v. United States, 395 F.2d

976 (Sth Cir. 1968), cert. denied, 409 U.S. 843, 93 S.Ct. 44,

34 L.Ed.2d 83 (1972).

While it is a fundamental principle of law that a defend-

ant is entitled to an instruction on a defensive theory for

which there is any foundation in the evidence, State v.

Melendez, 121 Ariz. 1, 588 P.2d 294 (1978); State v. Gamble,

111 Ariz. 25, 523 P.2d 53 (1974); there was no evidence

presented at trial that appellant or anyone else ever consulted

attorney David M. West or any other counsel concerning the

propriety of the entries associated with adjusting journal entry

74-1. While Mr. West did testify that he advised appellant as

early as 1972 that the Thrift companies were not required to

2la

use generally accepted accounting principles, ‘‘in maintaining

their books and records or in preparing, [or] filing the reports

required by law,’’ on cross-examination, he admitted that he

had ‘not been consulted concerning the preparation of Lincoln

Thrift financial statements nor had he reviewed the books and

records before the financial statements were prepared prior to

October, 1975. Absent any evidence that Fendler received ad-

vice of counsel concerning the 74-1 entries, the trial court

acted properly iri refusing to give the requested instruction.

Appellant further contends that his false book entry con-

viction must be reversed because the trial court’s post-verdict

dismissal of the conspiracy count (Count One) raised the

distinct possibility that his conviction rested on an impermissi-

ble ground (i.e. the conspiracy count). Grunewald v. United

States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957). We

do not agree.

The jury was given an extensive instruction on con-

spiracy. As noted earlier, the jury subsequently found ap-

pellant guilty of conspiracy (Count One), false book entry

(Count Three) and failure to file a state corporate income tax

return (Count Twelve).** Prior to entering judgment, the trial

judge dismissed the conspiracy count because he had deter-

mined that it was fatally defective.** Appellant now argues

that he must be granted a new trial because it is impossible to

determine whether his conviction for false book entry rested

on the false book entry instruction or on the following por-

tion of the conspiracy instruction:

(d) The crime of conspiracy is a separate and distinct of-

fense from the crime or crimes which may have been the

** Holman was acquitted of the ‘‘false book entry’’ charge.

* The trial court determined that Count One was bad for duplici-

ty, in other words, it charged multiple offenses in a single count,

which violated the requirement that separate offenses be set forth in

separate counts. See Rule 13.3, Arizona Rules of Criminal Pro-

cedure, 17 A.R.S. The trial court’s order has been appealed by the

state. See State v. Fendler, 1 CA-CR 3400, filed Sept. 11, 1980.

22a

object or objects of the conspiracy. A co-conspirator

committing a crime pursuant to conspiracy is held to be

the agent of other conspirators. . . . Even though he did

not participate in the acts constituting the crime of false

book entry, either Mr. Fendler or Mr. Holman could be

found guilty of that offense if you are satisfied beyond a

reasonable doubt:

1. That the essential elements of false book entry have

been established,

2. False book entry was committed pursuant to a

conspiracy.

3. Mr. Fendler or Mr. Holman was a member of the con-

spiracy at the time that false book entry was committed.

It is inconceivable to this tribunal, based upon the record

before us, that the jury could have predicated its verdict on

the false book entry charge solely, if at all, upon the defective

conspiracy count. Appellant never disputed the fact that he

formulated the 74-1 entries and directed their placement on

the Lincoln Thrift books. Rather, appellant tried to escape

liability by attempting to establish the accuracy of the entries

and his lack of intent to defraud. However, the evidence ad-

duced at trial clearly permitted the jury to find to the con-

trary. In our opinion, there is no possible chance that the jury

could have found that the ‘‘essential elements’’ of false book

entry were established without also finding that appellant was

the culpable party. We find no error.

Prosecutorial Misconduct

Appellant next argues that the trial court erred by deny-

ing his motion to dismiss the indictment because of Leonard

Foreman’s alleged perjury before the state grand jury.

On February 8, 1977, Leonard Foreman testified before

the state grand jury concerning appellant’s alleged deletion of

footnotes from the December 31, 1974 financial statement of

Lincoln Thrift Association (Financial Statement) which was

filed with the Arizona Corporation Commission (Commission)

23a

in April of 1975. The testimony, in pertinent part is as

follows:

Q. After you prepared Exhibit No. 28, the statements of

financial condition for Lincoln Thrift Association as of

December 31, 1974, what did you do with it?

A. I gave it to Mr. Fendler.

Q. At the time that you gave the statement of financial

condition, which is Exhibit No. 28, to Mr. Fendler, was

Mr. Fendler fully aware that approximately $1,500,000 of

fictitious assets were represented on that?

A. Yes, sir.

* * *

Q. Mr. Foreman, I am now going to give you what has

been marked Exhibit No. 29 and ask you if you recognize

that?

A. Yes, sir.

Q. Would you tell the Grand Jury what that is, please?

A. Lincoln Thrift Association notes to the financial

statements, December 31, 1974.

Q. Did you prepare the original of that document?

A. Yes sir, I did.

Q. Exhibit No. 29 is a photocopy. To the best of your

knowledge, does it appear to you to be a true and correct

copy of the original which you. prepared?

A. Yes, sir. kee

Q. Were those notes an integral part of the 12-31-74 Lin-

coln Thrift financial statement; were they to be?

A. They were to be, yes, sir.

Were they in fact part of the financial statement?

No, sir.

Were they given to Mr. Fendler?

Yes, sir.

>O>0

24a

Q. Is there any reference in those notes to the financial

statement about the fact that Lincoln Thrift Association’s

books have approximately 1.5 million dollars in fictitious

assets?

A. Will you repeat that, please?

Q. Is there any notation that as to the 1.5 million dollars

in assets that were placed on the books of Lincoln Thrift

Association, June ’74?

A. Yes, sir, they are categorized in various different

documents.

Q. Was Mr. Fendler aware that the notes to the financial

statement were to be an integral part of that?

A. Yes, sir.

* * *

Q. Both [Fendler and Holman] were aware that the

display of financial statement or balance sheet without

the notes would misrepresent the financial condition of

Lincoln Thrift Association?

A. Yes, sir.

This testimony, at least in part, was responsible for ap-

pellant’s indictment in Counts Thirteen, Fourteen and Fifteen.

In the latter part of October, 1977, appellant’s counsel

discovered that Foreman had not prepared footnotes for the

Financial Statement until after it had been filed with the

Commission.*° Appellant’s counsel also learned that the state

was purportedly aware of this information prior to the indict-

ment being handed down, but had nevertheless failed to ia-

form the court, opposing counsel or the grand jury of the

possible discrepancy in Foreman’s testimony. Upon the revela-

°° Apparently, Foreman decided not to prepare footnotes for the

financial statement because they would have been identical to foot-

notes attached to another Lincoln Thrift financial statement which

was filed in August of 1974.

25a

tion of these facts, appellant promptly moved the court to

dismiss the entire indictment (17 counts) on the basis of

‘‘prosecutorial misconduct.’’ Appellant relies heavily on the

case of United States v. Basurto, 497 F.2d 781 (9th Cir.

1974), in support of his position: In Basurto, a person named

Barron, who was subsequently named in the indictment as a

co-conspirator but not as a defendant, testified concerning ap-

pellant’s activities in the conspiracy before the grand jury

which brought the indictment. Prior to the commencement of

trial, Barron informed the prosecuting attorney that he had

committed perjury before the grand jury in material respects.

After learning of the perjury, the prosecutor informed oppos-

ing counsel, but failed to notify either the court or the grand

jury. The Court of Appeals held:

that the Due Process Clause of the Fifth Amendment is

violated when a defendant has to stand trial on an indict-

ment which the government knows is based partially on

perjured testimony, when the perjured testimony is

material, and when jeopardy has not attached. Whenever

the prosecutor learns of any perjury committed before

the grand jury, he is under a duty to immediately inform

the court and opposing counsel — and, if the perjury

may be material, also the grand jury — in order that ap-

propriate action may be taken. 497 F.2d at 785, 786.

In our opinion, the factual posture of Basurto is clearly

distinguishable from the facts of the present case. Not only is

there some real doubt as to whether Foreman actually per-

jured himself,’' but appellant has also failed to sufficiently

establish that the prosecution was aware of the perjury and

that the alleged perjured testimony was material to the indict-

*' While we admit that Foreman’s testimony was far from a

model of clarity and probably was misleading, Foreman did in fact

prepare footnotes for the Financial Statement subsequent to its fil-

ing with the Commission and purportedly furnished the completed

work product to appellant. Furthermore, the footnotes were an in-

tegral part of the Financial Statement for without them the State-

ment was misleading.

26a

ment on Counts Three and Twelve, which are the only counts

before this Court in this appeal. See State v. Jacobson, 22

Ariz. App. 128, 524 P.2d 962 (1974); State v. Brewer, 26

Ariz. App. 408, 549 P.2d 188 (1976).

Appellant also claims that the above information was ex-

culpatory evidence which should have been presented to the

grand jury by the prosecution. While there is some doubt as

to whether the information was in fact guilt negating, we need

not address that issue because the Supreme Court recently

observed in State v. Baumann No. 4879 (Supreme Court Filed

March 26, 1980) that:

The contention that a grand jury must consider all ex-

culpatory evidence misreads the grand jury’s primary

function of determining whether probable cause exists to

believe that a crime has been committed and that the in-

dividual being investigated was the one who committed it.

(citations omitted) Any more would put grand juries in

the business of holding minitrials. (citations omitted) slip

op. at 6. :

Moreover, the alleged exculpatory evidence applied only to

Counts Thirteen, Fourteen and Fifteen of the indictment; con-

sequently, it would have been error if the trial court had

dismissed any of the other counts for the above cited reason.

See State v. Jones, 120 Ariz. 556, 587 P.2d 742 (1978).

Discovery

Appellant contends that Rule 15.2(c), Arizona Rules of

Criminal Procedure, 17 A.R.S., which requires a defendant to

disclose the names and addresses of all persons whom he in-

tends to call as witnesses at trial, is violative of his constitu-

tional right against self-incrimination. U.S. Const. amend. V.

Arizona. Const. art. 2 §10. We do not agree. While our

Supreme Court has upheld the validity of Rule 15.2, Wright

v. Superior Court, 110 Ariz. 265, 517 P.2d 1261 (1974); State

v. Talley, 112 Ariz. 268, 540 P.2d 1249 (1975), no Arizona

appellate decision has specifically addressed this Fifth Amend-

ment question. Nevertheless, we believe that the case of

27a

Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d

446 (1970), is dispositive of the issue. In Williams, the United

States Supreme Court held that the privilege against self-

incrimination was not violated by a pretrial discovery provi-

sion which required a defendant to disclose the names and ad-

dresses of his alibi witnesses. While the court’s holding was

limited to the pretrial discovery of alibi witnesses, we believe

that the logic and reasoning of that decision are just as ap-

plicable here.

Appellant’s reliance on case law of sister jurisdictions,

which have invalidated similar discovery provisions based on

state constitutional self-incrimination grounds is neither con-

trolling nor persuasive, Prudhomme v. Superior Court of Los

Angeles County, 2 Cal. 3d 320, 466 P.2d 673 (1970); Scott v.

State, 519 P.2d 774 (Alaska, 1974), since our Supreme Court

has held that Article 2, §10 of the Arizona Constitution does

not afford a criminal defendant any greater protection than

the Fifth Amendment of the United States Constitution. State

v. White, 102 Ariz. 162, 426 P.2d 796 (1967).

Appellant further contends that the trial court’s order

precluding him from calling two specific witnesses for lack of

compliance with Rule 15.2, Arizona Rules of Criminal Pro-

cedure, 17 A.R.S., violated his constitutional right to a fair

trial. U.S. Const. amends. VI, XIV.

On March 21, 1977, the state filed its initial disclosure

pursuant to Rule 15.1, Arizona Rules of Criminal Procedure,

17 A.R.S. When appellant failed to make the required

reciprocal disclosures pursuant to Rule 15.2, the state, on

April 6, 1977, moved the trial court to compel disclosure. On

July 6, 1977, the trial court ordered appellant to file his initial

disclosure within fifteen days. Appellant failed to comply. On

August 19, 1977, the trial court again ordered appellant to

comply with Rule 15.2 or face the possibility of sanctions.

Finally, on September 2, 1977, appellant filed his initial

disclosure which contained, in part, the names of over one

thousand prospective witnesses. The names of the two

witnesses in question, Messrs, Schaffer and Pierson were

28a

listed, but their addresses were designated as unknown. On

September 14, 1977, the state filed a motion complaining

about the inadequacy of appellant’s disclosure, because,

among other deficiencies, the disclosure contained 131 names

without addresses. The trial court agreed and ordered ap-

pellant to disclose the names and addresses of all witnesses he

intended to call. Appellant responded by filing an extensive

amended disclosure statement; however, the addresses of

Schaffer and Pierson were once again omitted. On October 6,

1977, the state moved the trial court to preclude appellant

from calling any witnesses whose name and address had not

been disclosed.*? The motion was granted. In spite of that

order, appellant filed numerous supplemental disclosures con-

taining the names and addresses of various prospective

witnesses, however, no effort was made to supply the missing

addresses of Schaffer and Pierson. On January 9, 1978, the

defense presented its list of prospective witnesses. The state

objected to certain names on the list, including Schaffer and

Pierson, and moved the court to enforce its prior exclusionary

order. Several days later the trial court entertained extensive

argument on the issue.’ The defense contended that they were

not put on notice of the relevance of Schaffer’s testimony un-

til the middle of the state’s case when the state questioned,

allegedly for the first time, the accuracy of the 74-1 entry en-

titled ‘‘investment securities’’. Appellant further argued that

the state was aware of Schaffer’s address as early as the con-

vening of the state grand jury,‘ and therefore any surprise or

32 We note that appellant’s amended disclosure still contained 106

names without accompanying addresses.

3 Appellant informed the court that Pierson would be called only

if Schaffer was unavailable, but that Schaffer assured him he would

testify. Consequently, the argument focused solely on Schaffer’s

testimony because of the cumulative nature of Pierson’s testimony.

As a result, our discussion and decision rests on the arguments

relating to Schaffer.

** It appears that both Schaffer’s and Pierson’s names were read

to the state grand jury as potential witnesses. However, their ad-

dresses were not disclosed.

29a

prejudice was due to the state’s own negligence in failing to

schedule an interview. The prosecution countered by arguing

that not only was Schaffer’s testimony irrelevant, but permit-

ting him to testify would prejudice the state’s case because it

had relied on the court’s prior order. The trial court reaf-

firmed its prior position and precluded the defense from call-

ing either witness based upon its determination that the

defense had received adequate notice on the ‘‘investment

security’’ issue so that no surprise was involved.

Rule 15.2(c) states:

c. Disclosures by Defendant. Simultaneously with the

notice of defenses submitted under Rule 15.2(b), the

defendant shall make available to the prosecutor for ex-

amination and reproduction:

(1) the names and addresses of all persons, other

than the defendant himself, whom he will call as

witnesses at trial, together with all statements made

by them in connection with the particular case. (em-

phasis supplied)

Rule 15.7 further provides that:

a. If at any time during the course of the proceeding it is

brought to the attention of the court that a party has fail-

ed to comply with any provisions of this rule or any

order issued pursuant thereto, the court may impose any

sanction which it finds just under the circumstances, in-

cluding, but not limited to:

(4) Precluding a party from calling a witness, offer-

ing evidence, or raising a defense not disclosed. .. .

While the appropriate sanction for noncompliance lies

within the sound discretion of the trial court, State v. Smith,

123 Ariz. 243, 599 P.2d 199 (1979), State v. Clark, 112 Ariz.

493, 543 P.2d 1122 (1975), the trial court ‘‘should seek to ap-

ply sanctions that affect the evidence at trial and the merits of

the case as little as possible. . . .”’ State v. Smith, 123 Ariz. at

30a

252, 599 P.2d at 208 (1975). Moreover, precluding a witness

from testifying should only be invoked ‘‘in those cases where

other less stringent sanctions are not applicable to effect the

ends of justice.’’*’ State v. Gutierrez, 121 Ariz. 176, 181, 589

P.2d 50, 55 (App. 1978); State v. Smith, State v. Fierro.

It is glaringly apparent from examining the record that

appellant willfully failed to comply with Rule 15.2(c) and the

numerous discovery orders of the trial court. Despite this fact,

appellant would have us disregard his flagrant abuse of the

rules based upon the state’s purported awareness of the

witnesses’ location prior to trial and the alleged prejudice suf-

fered by appellant as a result of the exclusionary order. While

we admit that Schaffer’s testimony might have been relevant,

we are of the opinion that appellant’s offer of proof was in-

sufficient to fully-inform the court of the relevancy, let alone

the vitality, of the proposed testimony. While appellant’s

counsel made some very broad assertions regarding the pro-

spective content of Schaffer’s testimony, counsel became ex-

tremely evasive when the court and opposing counsel attempt-

ed to inquire as to specifics. It is also apparent that the

defense sensed the need to offer Schaffer himself to effective-

ly clear the air concerning his testimony, since they insisted on

securing Schaffer’s attendance to make an offer of proof, an

event, we note, which never occurred. Another factor of some

import in our decision concerns the tardiness of appellant’s

claim. If Schaffer’s testimony was so vital to the ‘‘investment

security’ issue, then why did the defense wait for almost two

months after they discovered that it was an issue to inform

the trial court or opposing counsel that they needed relief

from the trial court’s prior order concerning the preclusion of

witnesses without addresses.** To wait until the presentation

** While we are aware that Smith articulated specific standards

for determining whether a witness should be precluded from testify-

ing, in the absence of a specific ruling requiring retroactive applica-

tion, we do not believe that it is appropriate to apply that specific

standard to the instant case.

** Through their argument to the trial court, the defense

acknowledged their awareness of the issue no later than November

21, 1977.

3la

of their own case to indicate that they actually intended to

call Schaffer might well have prejudiced the state’s case.

Based upon the foregoing, we find neither justification

for appellant’s conduct nor prejudice to his defense. Conse-

quently, the trial court acted properly in precluding the

witnesses’ testimony.

However, even assuming, arguendo, that the trial court

erred in precluding the testimony, the evidence on the other

entries was of such an overwhelming nature that we believe

any error was harmless beyond a reasonable doubt. Chapman

v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705

(1967).

Conspiracy Count

Appellant next contends that the trial court committed

‘‘fundamental’’ error when it allowed the state to introduce

evidence pertaining to the conspiracy count (Count One).

The facts are as follows: On September 30, 1977, ap-

pellant filed a pretrial motion to dismiss Count One on the

basis of duplicity. The motion was denied. Thereafter, the

trial commenced and the state introduced evidence bearing on

the conspiracy charge. While the jury subsequently found ap-

pellant guilty of several charges, including conspiracy, the trial

court reversed its prior position and dismissed Count One or.

the basis that it was duplicitous.

Appellant now claims that he was denied due process and

a fair trial because the trial court’s failure to dismiss Count

One prior to trial resulted in the introduction of highly pre-

judicial evidence which would have otherwise been

inadmissible.

Appellant prefaces his argument by conceding that the

vast majority of the evidence in question was admitted

without objection.*’ He also acknowledges that he is unable,

7 As a result, appellant attempts to avoid the waiver of such

issue by characterizing the error as ‘‘fundamental’’. See Rule 19.3

32a

except in two instances, which will be subsequently discussed,

to point to any evidence which would have been inadmissible

if the pretrial motion had been granted. Nevertheless, ap-

pellant proposes that we should presume that he was preju-

diced to the extent that it constituted ‘‘fundamental’’ error

because the jury may have been influenced by evidence

relating to a defectively pleaded count.** In our opinion, we

see no justifiable reason for setting aside appellant’s convic-

tions based upon his mere conjecture that he may have been

somehow prejudiced. We have reviewed the evidence pertain-

ing to the substantive counts in question and find that it amp-

ly supports the jury’s verdicts. Consequently, even if the

evidence relating to the conspiracy was erroneously admitted,

we believe that such error was harmless beyond a reasonable

doubt. Chapman v. California.

In conjunction with his general attack on the admission

of evidence relating to Count One, appellant additionally

claims that the trial court committed ‘‘fundamental’’ error

when it allowed Leonard Foreman (co-defendant) to testify

that he plead guilty to one of the offenses (conspiracy) with

which appellant was charged without subsequently instructing

the jury that such plea was not to be considered as substantive

evidence of appellant’s guilt.

Leonard Foreman’s guilty plea first came to light, or its

existence was at least implied, during defense counsel’s open-

ing statement to the jury when he suggested that Foreman’s

forthcoming testimony should be viewed with a jaundiced eye

in light of his plea bargain agreement with the state which re-

quired him to ‘“‘testify good.’’*®

Arizona Rules of Criminal Procedure, 17 A.R.S. We also note that

the objections that were actually made generally pertained to the

relevancy of the evidence as it pertained to the conspiracy count.

** Whether Count One was actually duplicitous is the subject of

an appeal by the state in State v. Fendler, 1 CA-CR 3400, filed

Sept. 11, 1980.

** We note that the state was specifically precluded from address-

ing this subject in its opening statement.

33a

Anticipating the defense’s attack on Foreman’s credibili-

ty, the state, on direct examination, solicited Foreman’s ad-

mission that he had entered into a plea bargain agreement

with the state and plead guilty to the charge of conspiracy.

Appellant’s counsel did not object to this line of questioning

or the subsequent admission of the plea agreement.*°

We further note that the trial court failed to give a

limiting instruction to the jury to the effect that Foreman’s

guilty plea was not to be considered as evidence of appellant’s

guilt.

The general rule in this jurisdiction is that where two or

more persons are charged with the same offense, the fact that

one defendant has plead guilty is not admissible as substantive

evidence of the other’s guilt. State v. McDonald, 117 Ariz.

159, 571 P.2d 656 (1977), United States v. King, 505 F.2d 602

(Sth Cir., 1974). The basis for this rule is founded upon the

notion that a defendant is entitled to have the question of his

guilt or innocence rest upon the evidence against him, rather

than on a co-defendant’s guilty plea to the same offense.

United States v. Fleetwood, 528 F.2d 528, 532 (Sth Cir. 1976),

Babb v. United States, 218 F.2d 538, 542 (Sth Cir. 1955).

However, the introduction of a co-defendant’s guilty plea is

permissible for certain limited purposes such as where it tends

to impeach a witness’ credibility in order to prevent the

defense from creating a misleading impression that the state

has something to hide. State v. McDonald, 117 Ariz. at 161,

571 P.2d at 658, United States v. King, 505 F.2d at 607,

United States vy. Del Purgatorio, 411 F.2d 84, 87 (1969).

In light of the defense’s opening remarks, we are not

convinced that the evidence in question was erroneously ad-

mitted. In our opinion, the state was entitled to purge any

‘° Furthermore, appellant’s counsel readdressed the subject of the

guilty plea during his cross-examination of Foreman and in his clos-

ing argument to the jury. The state also addressed the subject mat-

ter in its final closing argument.

34a

possible misimpression left by the defense to the effect that

the state was secreting material information which directly

bore on a forthcoming witness’ credibility. However, even

assuming that the evidence was improperly admitted, the fact

that a jury is informed of a co-defendant’s guilty plea does

not automatically constitute ‘‘fundamental’’ error. State v.

McDonald, United States v. King. This would be true even if

the trial court subsequently failed to give a limiting instruc-

tion. State v. McDonald, United States v. King. Therefore,

under ordinary circumstances, appellant’s failure to object to

the admission of such evidence or request a cautionary in-

struction would bar him from raising the issue on appeal.*'

State v. Wilson, 113 Ariz. 308, 553 P.2d 235 (1976). Rule

19.3, 21.3, Arizona Rules of Criminal Procedure, 17 A.R.S.

“' The state contends that appellant never requested a cautionary

instruction to the effect that Foreman’s guilty plea was not to be

considered as substantive of appellant’s guilt. We agree. Appellant,

on the other hand, claims that the following requested instruction,

which the court rejected, qualified as such an instruction:

One who testifies under a partial grant of immunity with a pro-

mise from the government that he will not be prosecuted for

some offenses or has been given promises with respect to

sentences he will receive, is a competent witness. His testimony

may be received in evidence and considered by the jury even

though not corroborated or supported by other evidence.

Such testimony, however, should be examined by you with

greater care than the testimony of an ordinary witness. You

should consider whether the testimony may be colored in such

a way as to further the witness’s own interest, for a witness

who realizes that he may procure his own freedom by in-

criminating another has a motive to falsify. After such con-

sideration, you may give the testimony of the immunized

witness such weight as you feel it deserves.

In our opinion, not only was the above instruction insufficient to

warn the jury as to the effect of a co-defendant’s plea, it could

have had the opposite effect and mislead the jury into believing that

it could consider the guilty plea as evidence of appellant’s guilt.

Furthermore, we believe that the trial court did not err in refusing

to give the above instruction because the same subject matter was

adequately covered by the instructions actually given by the court.

State v. Kelley, 110 Ariz. 196, 515 P.2d 569 (1973). 553 P.2d 235

(1976). Rule 19.3, 21.3, Arizona Rules of Criminal Procedure, 17

A.R.S.

35a

However, in McDonald, our Supreme Court held that if

a jury is informed of a co-defendant’s guilty plea, but no cau-

tionary instruction is requested or given, the reviewing court

must examine the facts and circumstances of the case in order

to determine whether the jury’s verdict was possibly influ-

enced thereby prejudicing the appellant’s case to the extent

that it constituted ‘‘fundamental’’ error. However, as noted

earlier, the evidence of appellant’s guilt on the substantive

counts was simply overwhelming. As a result, any error in the

introduction of the guilty plea or in the trial court’s failure to

instruct on its effect was harmless beyond a reasonable doubt.

State v. McDonald, Chapman vy. California.

Appellant further contends that the admission of Leonard

Foreman’s plea agreement constituted ‘‘fundamental’’ error.

For the same reasons previously discussed, we find that any

error in the admission of such evidence was harmless beyond

a reasonable doubt. Chapman v. California.

In section XI of appellant’s opening brief in 1 CA-CR

3376, he sets forth numerous miscellaneous points which he

contends require reversal. Since appellant has not argued these

propositions, we consider them to be abandoned. Rule 31.13,

Arizona Rules of Criminal Procedure, 17 A.R.S.; State v.

Smith.

We have also reviewed the remaining issues asserted by

appellant, with the exception of those we specifically declined

to address relating to the tax count, and find them totally

without merit. Therefore, in accordance with the foregoing

opinion, appellant’s conviction and sentence on Count Twelve

(failure to file a state corporate income tax return) is reversed

and remanded for a new trial, while his conviction and

sentence on Count Three (false book entry) is affirmed.

/s/ LAURANCE T. WREN

Laurance T. Wren

Vice Chief Judge

36a

CONCURRING:

/s/ DONALD F. FROEB

Donald F. Froeb

Presiding Judge

/s/_ FRANCIS J. DONOFRIO

Francis J. Donofrio

Judge

eens ene apne ty to —

ere ee

EXHIBIT B

37a

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

STATE OF ARIZONA

No. CR 96776

THE STATE OF ARIZONA, Plaintiff,

Vv.

ROBERT H. FENDLER, Defendants

JUDGMENT

Division 8, April 14, 1978

Honorable Charles L. Hardy, Judge

It is the Judgment of the Court that you, ROBERT

FENDLER, are guilty of the crime of false book entry as alleg-

ed in count three of the indictment and as punishment the

Court sentences you to serve not less than four nor more than

five years in the Arizona State Prison.

It is the Judgment of the Court that you, ROBERT

FENDLER, are guilty of the crime of failure to file a tax return

as alleged in court twelve in the indictment and as punishment

the Court sentences you to serve not less than one nor more

than three years in the Arizona State Prison, both of these

terms to run concurrently. It is ordered that you surrender

yourself to the custody of the Sheriff of Maricopa County on

April 21, 1978.

Sentence to commence from the time you are in the

custody of the Sheriff.

Charles L. Hardy,

Judge

‘%

°%

39a

IN THE

COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

1 CA-CR 3376

1 CA-CR 3748

(Consolidated)

Maricopa County

Superior Court No.

CR-96776 SGJ

STATE OF ARIZONA, Appellee,

ROBERT H. FENDLER, Appellant.

ORDER

The Court, Presiding Judge Donald F. Froeb and Judges

Francis J. Donofrio and Laurance T. Wren, having conferred,

It Is ORDERED vacating the order dated December 9,

1980.

It Is FURTHER ORDERED denying both appellee’s and ap-

pellant’s motions for rehearing.

DaTED this 11 day of December, 1980.

/s/ DONALD F. FROEB

Donald F. Froeb

Presiding Judge

Department A

A true copy of the foregoing order was mailed this 11th

day of December, 1980, to:

Mr. PHILIP J. MACDONNELL

Mr. MICHAEL C. CUDADY

Mr. SAMUEL P. GODDARD, III

Assistant Attorneys General

301 State Capitol Building

Phoenix, Arizona 85007

Attorneys for Appellee

| PRECEDING PAGE WAS BLANK |

101 North First Avenue, Suite 2860

Phoenix, Arizona 85003

and

Mr. THOMAS HORN

240 Stockton Street, Tenth Floor

San Francisco, California 94108

Attorneys for Fendler

Mr. ROBERT L. STORRS

45 West Jefferson Street, Suite 803

Phoenix, Arizona 85003

Attorney for Holman

Mr. ROBERT H. FENDLER

P O Box 21776

Phoenix, Arizona 85036

Appellant

GLEN D. CLarK, Clerk

By Joan W. Howarp

Deputy Clerk

EXHIBIT D

4la

SUPREME COURT

STATE OF ARIZONA

201-WEST WING

CAPITOL BUILDING

PHOENIX 85007

Supreme Court No. 5162-PR

Court of Appeals

Nos. 1 CA-CR 3376 and

1CA-CR 3748

(Consolidated)

Maricopa County

No. CR-96776 SGJ

STATE OF ARIZONA, Appellee,

Vv.

ROBERT H. FENDLER, Appellant.

The following action was taken by the Supreme Court of

the State of Arizona on December 23, 1980 in regard to the

above-entitled cause:

‘*ORDERED: Petitions for Review = DENIED.’’

Record returned to the Court of Appeals, Division One,

Phoenix, this 24th day of December, 1980.

MARYANN HOPKINS-YOUNG,

Clerk

/s/_ By ILLEGIBLE

Deputy Clerk

To:

E. Rem SOUTHERN, Esq., SUITE 2080, 101 NORTH FIRST

AVENUE, PHOENIX, ARIZONA 85003

THomaAS E. Horn, EsQ., 10TH FLOOR, 240 STOCKTON STREET,

SAN FRANCISCO, CALIFORNIA 94108

Hon. ROBERT K. CORBIN, ATTORNEY GENERAL, 200 STATE

CAPITOL BUILDING, WEST WING, PHOENIX, ARIZONA 85007

ATTN: MICHAEL C. CUDAHY

CHARLES F. HYDER, MARICOPA COUNTY ATTORNEY, 101 WEST

JEFFERSON STREET, PHOENIX, ARIZONA 85003,

42a

Hon. ROBERT C. BROOMFIELD, PRESIDING JUDGE, MARICOPA

CouNTY SUPERIOR COURT, 201 WEST JEFFERSON STREET,

PHOENIX, ARIZONA 85003

GLEN D. CLARK, CLERK, COURT OF APPEALS, DIVISION ONE,

STATE CAPITOL BUILDING, WEST WING, PHOENIX, ARIZONA

85007

ROBERT H. FENDLER, P. O. Box 21776, PHOENIX, ARIZONA

85036

EXHIBIT E

soy trey a iv

ye nae TPE WMAG >

43a

Daily Transcript page 59, line 7 (1/12/78)

Tue Court: Mr. Schaeffer was disclosed.

Daily Transcript, 1/12/78; beginning at p. 64, line 22

Tue Court: During the recess I examined Mr. Forman’s

testimony in the grand jury transcript, and have on page 89

on February 8th, last year, where he’s talking about adjusting

entry 74-1, those corresponding entries were investment

securities 250,000 which were an actual asset. Statutory

Reserve, 140,000 actual asset. And then Fendler created assets

goodwill, account acquisition and retention and branch of-

fices, so forth. And then there is other testimony that goes

along in that vein. So I think Mr. Horn is right, that until this

trial there was never any notice to the defendants that there

was a chance that the investment security entry itself was a

false entry or represented false value.

Daily Transcript, 1/12/78; beginning at p. 67, line 16

THE Court: Wait a minute Mr. Lebowitz. Due process

requires a defendant to be apprised of what he is charged

with.

Mr. LeEBow!Tz: He was.

THe Court: And here he’s charged with making false en-

tries. Doesn’t say which entries are false in the indictment. So

you have to go to the grand jury transcript.

Mr. Lesowl!Tz: It said 74-1.

THE Court: Doesn’t say what part of that is false. Then

you look at the testimony before the grand jury. There are

three counts there which are described as fictious, goodwill,

account acquisition and retention, and branch offices, and

that’s the whole testimony for pages and pages - where that’s

discussed. There’s never anything that I see — I’ve been able

to come across.

Mr. Lepowitz: Your Honor, the charge is 74-1 in its en-

tirety. 74-1 is an entity. There are not separate charges for

each facet of that are false. Now we gave them all the

44a

discovery that we had regarding — relating to 74-1 and what

people would say about it, we gave to them in March.

* * *

Daily Transcript, 1/12/78; beginning at p. 74, line 7

THE Court: What is Mr. Schaeffer going to testify to,

Mr. Horn?

Mr. Horn: The stock was American Thrift Leasing

stock, yes, American Thrift Leasing has its asset acquired the

First Industrial Bank of Adams County, and it was because of

that acquisition the book value increased from 10,000 to

250,000, and Mr. Schaeffer has direct knowledge of that, so

for him to come in and say that’s a phony asset when it’s bas-

ed on the acquisition of a bank is ludicrous. And Mr. Schaef-

fer knows that, was in the middle of the transaction, has a

real estate background himself and will testify concerning the

assets of that stock is based on, but will also be able to testify

as to value of that stock.

* * *

Daily Transcript, 1/12/78; beginning at p. 80, line 19

Mr. Horn: I want to offer Mr. Schaeffer’s testimony on

valuation. I want him to describe how it came about, how the

valuation for purposes of the securities was determined. And

bv nas — he’s more than a lawyer. He has an extensive real

-wtate background. He will qualify to have an opinion as he

did at that time, and that will be his testimony.

Mr. Storrs: His general knowledge about the bank and

about the total circumstances surrounding it, because he was

the Colorado lawyer.

* * *

Daily Transcript, 1/12/78; beginning at p. 82, line 27

Mr. Horn: He does in the sense he knows how the

figure investment securities valued at $250,000 carried on 74-1

came about and the basis behind it.

* * x

45a

Daily Transcript, 1/12/78; beginning at p. 83, line 5

Mr Horn: It isn’t the placing of the figure on the books

that they are suggesting makes it a crime. It’s that that figure

represents a phony asset. That’s their theory that makes it a

crime. Now, he has knowledge of whether it’s a viable,

legitimate asset or a phony asset.

Daily Transcript, 1/12/78; beginning at p. 143

THE Court: . . . I am inclined to sustain the State’s ob-

jection to his testifying (Schaeffer) . . . I recall very definitely

saying that the name is not enough, they need an address so

they can put somebody in contact.

Daily Transcript, 1/12/78; beginning at p. 145, lin

THE Court: Gentlemen, somewhere along t

quite sure I made an order where you did not list

EXHIBIT F

47a

Rule 15.2 Disclosure By Defendant

a. Physical Evidence. At any time after the filing in

Superior Court of an indictment or information, upon written

request of the prosecutor, the defendant shall:

(1) Appear in a line-up;

(2) Speak for identification by witnesses;

(3) Be fingerprinted, palm-printed, foot-printed or

voiceprinted;

(4) Pose for photographs not involving re-enactment of

an event;

(5) Try on clothing;

(6) Permit the taking of samples of his hair, blood,

saliva, urine or other specified materials which involve no

unreason ible intrusions of his body;

(7) Provide specimens of his handwriting; or

(8) Submit to a reasonable physical or medical inspec-

tion of his body, provided such inspection does not in-

clude psychiatric or psychological examination;

In connection with the particular crime with which he is

charged. He shall be entitled to the presence of counsel at the

taking of such evidence. This rule shall supplement and not

limit any other procedures established by law.

b. Notice of Defenses. Within 20 days after the arraign-

ment in Superior Court, the defendant shall provide the

prosecutor with a written notice specifying all defenses as to

which he will introduce evidence at trial, including, but not

limited to, alibi, insanity, self-defense, entrapment, impoten-

cy, marriage, insufficiency of a prior conviction, mistaken

identity, and good character. The notice shall specify for each

defense the persons, including the defendant himself, whom

he will call as witnesses at trial in support thereof. It may be

signed by either the defendant or his counsel, and shall be fil-

ed with the court.

PRECEDING PAGE WAS BLANK |

48a

c. Disclosures by Defendant. Simultaneously with the

notice of defenses submitted under Rule 15.2(b), the defen-

dant shall make available to the prosecutor for examination

and reproduction:

(1) The names and addresses of all persons, other than

the defendant himself, whom he will call as witnesses at

trial, together with all statements made by them in con-

nection with the particular case;

(2) The names and addresses of experts whom he will

call at trial, together with the results of his physical ex-

aminations and scientific tests, experiments or com-

parisons, including all written reports and statements,

made by them in connection with the particular case; and

(3) A list of all papers, documents, photographs and

other tangible objects which he will use at trial.

d. Additional Disclosure Upon Request and Specification.

The defendant, upon written request, shall make available to

the prosecutor for examination, testing, and reproduction any

specified items contained in the list submitted under Rule

15.2(c)(3).

e. Extent of Defendant’s Duty to Obtain Information.

The defendant’s obligation under this rule extends to material

and information within the possession or control of the defen-

dant, his attorneysaand agents.

f. Disclosure by Order of the Court. Upon motion of the

prosecutor showing that he has substantial need in the

preparation of his case for additional material or information

not otherwise covered by Rule 15.2, that he is unable without

undue hardship to obtain the substantial equivalent by other

means, and that disclosure thereof will not violate the defen-

dant’s constitutional rights, the court in its discretion may

order any person to make such material or information

available to him. The court may, upon request of any person

affected by the order, vacate or modify the order if com-

pliance would be unreasonable or oppressive.

49a

Comment

The first sign that the prosecution constitutionally could

obtain some disclosure of the defendant’s case before trial

came in Jones v. Superior Court, 58 Cal.2d 56, 372 P.2d 919,

22 Cal.Rptr. 879, 96 A.L.R.2d 1213 (1962). But see

Prudhomme v. Superior Court of Los Angeles County, 2

Cal.3rd 320, 466 P.2d 673, 85 Cal.Rptr. 129 (1970). Compell-

ed defense disclosures now have a more certain basis as a

result of the U.S. Supreme Court’s decision in Williams v.

Florida, 90 S.Ct. 1893, 399 U.S. 78, 26 L.Ed.2d 446 (1970). -

Rule 15.2(a). This section closely parallels

Ariz.Rev.Stat.Ann. §13-1424 (Supp. 1972) and ABA, Stan-

dards, supra, §3.1. Unlike §13-1424, however, the prosecutor

need make no showing of cause, nor obtain any court order,

to become entitled to the ‘‘non-testimonial’’ disclosures

specified.

Section (A) is qualified in two ways. The accused is en-

titled to the presence of counsel at any such proceeding. See,

e. g., United States v. Wade, 87 S.Ct. 1926, 388 U.S. 218, 18

L.Ed.2d 1149 (1967). And the prosecutor may use the pro-

ceeding only to obtain evidence related to the charge for

which the defendant already stands accused; tc investigate

other crimes, the prosecutor must follow the procedures of

§13-1424.

Rule 15.2(b). It is intended that the ‘‘notice of defenses’’

to be a broad disclosure of the defendant’s case, including his

rebuttal of the state’s case as well as his own ‘‘case-in-chief.’’

It is to include all matters which he will present at trial, in-

cluding those which he intends to introduce by his own

testimony.

The disclosure requirement goes considerably beyond

notification of ‘‘affirmative defenses,’’ yet is limited to mat-

ters as to which the defendant will introduce evidence. The

limitation is designed to allow the defendant to argue deficien-

cies in the state’s case (not requiring the presentation of

defense evidence) without prior warning, and to make his

50a

disclosure obligations sufficiently clear and predictable as to

be enforceable.

Under Rule 15.4(c), the defendant is not required to raise

at trial all defenses noted in the ‘‘notice’’? and no comment

will be allowed on his failure to do so unless the court con-

cludes that he abused the rules. Furthermore, the disclosure of

a defense will not serve to alter the proceedings at trial.

The requirement of a detailed notification of defenses

follows §3.3 of the ABA, Standards, supra (Supp. October

1970) and proposed Federal Rules of Criminal Procedure 12.1

and 12.2 (Preliminary Draft, April 1971). See also

Ill.Rev.Stat. Ch. 110A §413(d) (Smith-Hurd 1972) and pro-

posed Washington Rules of Criminal Procedure 4.7(b)(2)(xii),

(xiii) and (xiv) (May 15, 1971).

The defendant is not required to disclose his testimony,

but only the defense to be asserted or of the element of the

offense to be attacked, in sufficient detail as to notify the

prosecutor of the essence of the defense’s case. Rules requir-

ing advance notice of affirmative defenses — e. g., alibi and

insanity — have never been held to violate the privilege, even

when they would be established by the defendant’s own

testimony (and even when they require specification of the

place at which the defendant claims to have been, the time at

which he was there, and the witnesses thereto). See, e. g.,

State v. Wardius, 487 P.2d 1380 (Ore.App. 1971); State v.

Nunn, 113 N.J.Super. 161, 273 A.2d 366 (App.Div. 1971);

State ex rel. Simos v. Burke, 41 Wis.2d 129, 163 N.W.2d 177

(1968) (cited in Williams, 399 U.S., at 84 n. 15) all holding

that the defendant himself can be denied the right to testify to .

an alibi when he failed to give notice before trial as required

by statute or rule.

Rule 15.2(c). This section closely parallels the pro-

secutor’s disclosure obligatigig ah pder Rules 15.1(a)(1), (a)(3)

and (a)(4), except that it Hed to evidence which the

S5la

The extent of the defendant’s duty to make facilities

available for review and copying of materials and information

is the same as that of the prosecutor. See comment to Rule

15.1 under Meaning of Terms and comment to Rule 15.1(c).

Rule 15.2(d). This section also directly parallels the cor-

responding prosecution disclosure requirement in Rule 15.1(c).

The defendant may impose the same reasonable conditions on

release of items of evidence which Rule 15.1(c) allows the pro-

secutor to attach.

Rule 15.2(e). This section sets forth the extent of the

defendant’s duty to obtain evidence for disclosure. See Rule

15.1(d) for the prosecution’s similar duty.

Rule 15.2(f). This section gives the prosecutor the same

right to request additional discovery given the defendant in

Rule 15.1(e), with the additional warning that discretionary

discovery from the defendant must also take account of his

privilege against self-incrimination.

Rule 15.7 Sanctions

a. If at any time during the course of the proceeding it is

brought to the attention of the court that a party has failed to

comply with any provisions of this rule or any order issued

pursuant thereto, the court may impose any sanction which it

finds just under the circumstances, including, but not limited

to:

(1) Ordering disclosure of the information not

previously disclosed.

(2) Granting a continuance.

(3) Holding a witness, party, or counsel in contempt.

(4) Precluding a party from calling a witness, offering

evidence, or raising a defense not disclosed; and

(5) Declaring a mistrial when necessary to prevent a

miscarriage of justice.

b. If the defendant fails to comply with Rule 15.2 the

prosecution need make no further disclosure except material

52a

or information which tends to mitigate or negate defendant’s

guilt as to the offense charged as set forth in Rule 15.1(a)(7).

Amended May 7, 1975, effective Aug. 1, 1975.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.