State v. Counterman
In State v. Counterman, 8 Ariz. App. 526, 531, 448 P.2d 96, 101 (1968), the defendant, while arguing with his wife's parents in their home, fired a revolver at his mother-in-law, narrowly missing her. 8 Ariz. App. at 529, 448 P.2d at 99.
The defendant then began to struggle with his father-in-law through several rooms of the house, and eventually he fired the revolver again, this time actually hitting the mother-in-law. Id.
The defendant was charged and convicted on a single count of assault.
He argued on appeal that the trial court should have required the State to elect which one of the two shots constituted the assault for which he was being tried. Id. at 530, 448 P.2d at 100.
The Court rejected that argument because the rule requiring the court to take such remedial measures "does not apply . . . 'where a series of acts form part of one and the same transaction, and as a whole constitute but one and the same offense.'" Id. at 531, 448 P.2d at 101.
The Counterman court "approved of the principle" used in the California cases to determine when separate acts constituted part of the same criminal transaction and "deemed it applicable" to the facts of that case. See id. at 532, 448 P.2d at 102.
In State v. Counterman, the defendant challenged a city's prosecution of him on charges related to domestic violence because one of the assistant city attorneys, uninvolved in that criminal prosecution, had represented the defendant's former wife in their divorce proceedings. 8 Ariz. App. at 529, 448 P.2d at 99.
On review, this court concluded that "the mere representation of the defendant's former wife by an Assistant City Attorney did not present an actual conflict of interest in relation to the State's responsibility in seeing that justice was done in prosecuting the defendant." Id. at 530, 448 P.2d at 100.
Ultimately, this court affirmed Counterman's conviction, concluding that "no conflict of interest . . . had deprived the defendant of the fundamental fairness" ensured by the Due Process Clauses. Id.
Counterman demonstrates that a defendant's right to fundamental fairness is not violated whenever the slightest "appearance of impropriety" can be insinuated.