The Supreme Court of Arizona requires pretrial objections to an indictment in order to allow correction of any alleged defects before trial begins. If a defendant makes a timely objection, the State can remedy any duplicity by filing a new indictment charging multiple counts, thus exposing a defendant to multiple penalties. By failing to object before trial and later seeking dismissal of allegedly duplicitous counts, a defendant seeks to have his cake and eat it too: he avoids the potential of multiple punishments by depriving the State of the opportunity to amend, and then attempts to avoid any punishment at all.
Before his first trial, defendant moved for a more specific indictment, but the trial court denied the motion. The trial court convicted defendant of armed robbery, conspiracy to commit first-degree murder, and three counts of first-degree murder. On appeal, the court declined to address the motion, overturned the convictions, and remanded the case. At the second trial, the trial court ruled that defendant had waived the attack on the indictment by not raising it prior to trial. Defendant was again convicted on all counts. Defendant appealed, raising numerous claims of error as to the indictment, his convictions, and his sentences. Defendant claimed the indictments were duplicitous. The state supreme court affirmed defendant's convictions and affirmed his sentences with the exception of the armed robbery sentence, which the court stated it would address in a supplemental opinion.
Did defendant waive his argument that the indictment counts charging armed robbery, conspiracy to commit murder, and first-degree murder were duplicitous?
Because the first appeal left the issue relating to the indictment unresolved, defendant was not relieved of the obligation to raise the objection anew after remand. By failing to object before the second trial, defendant traded the risk of a non-unanimous jury for the reward of only one potential sentence on each of the challenged counts and therefore waived any objection.