State v. Porras

RICHARD M. DAVIS, Judge,

Pro Tem., dissenting.

I agree with the majority’s conclusion on the only issue presented on appeal. I disagree with the majority’s sua sponte determination that another formal submission of the cause in accordance with the dictates of Criminal Rule 18 is necessary.

I see no error, fundamental or otherwise. When this court reversed and remanded the initial judgment at 125 Ariz. 490, 610 P.2d 1051 (App.1980), it did so in order that the trial court could properly redetermine guilt or innocence by applying the proper legal standard to the evidence before it. This is clear from a reading of the court’s entire opinion, and especially the following excerpts:

We note that the court did not address the subject of whether the state had shown beyond a reasonable doubt that appellant had knowledge which would lead to a reasonable anticipation of personal injury.
[W]e are convinced the trier of fact did not consider this crucial issue.
Because this issue was not resolved, the judgment of conviction is reversed and the matter remanded for further proceedings consistent with this opinion.

125 Ariz. at 491-93, 610 P.2d at 1052-54.

The trial court accordingly ruled, correctly I believe, that the introduction of further evidence was inappropriate. It “took up” from the point where it had departed from a correct application of the law and redetermined the cause, using the proper legal standard. There was no mistrial, or any occasion to start anew with a different trier of fact. The evidence was in the breast of the court.

*421A replay of the litany is a carriage of anthracite to Scranton. More importantly, however, I can think of no basis for holding that the appellant had the right to require a re-presentation of the case to another trier of fact.

I accordingly dissent. I would affirm the judgment on appeal.

NOTE: The Honorable RICHARD M. DAVIS, a Judge Pro Tem. of a court of record, has been authorized to participate in this matter by the Chief Justice of the Arizona Supreme Court, pursuant to Arizona Const, art. VI, § 20.