State v. Koch

Arizona, Appellee, STATE of KOCH, Appellant.

Mark Alan

No. 5527. Arizona,

Supreme Court of

In Banc.

Oct. 1983.

Reconsideration Denied Nov. Corbin, Gen., William J. Atty.

Robert K. Counsel, Div., Schafer, III, Rob- Chief Crim. Phoenix, Golden, Gen., Atty. ert Asst. S. appellee. Tucson, for Postero, appel- Grey

Nancy lant.

GORDON, Vice Chief Justice: raises appeal: six issues on whether his motion for mistrial proper- On February appel- found denied; ly (2) whether certain evi- guilty degree lant of first murder viola- excluded; dence was properly (3) whether a tion of and 452. former A.R.S. 13^451 §§ hearsay description composite drawing 9, 1982, On March he was sentenced to life excluded; were properly (4) whether cer- prison parole in for possibility without tain questioning by prosecutor the denied jurisdic- twenty-five years. This Court has trial; him fair (5) whether a jury instruc- to Ariz. appeal pursuant tion to hear this Const, was properly tion given; and whether 5(3) 13-4031. art. and § A.R.S. § the trial judge acted improperly sending in the The of conviction and sen- judgment note the tence are affirmed. Motion for Mistrial 24, 1976, On the May body Richard at Danny appel- Rivera was a witness Johnson, whose hands were crippled by ar- During lant’s trial. direct examination Riv- thritis, was found near his car the in desert era referred to someone “the prosecutor Tucson, north of Arizona. The investiga- me Mark against appellant].”1 and [the the killing originally focused on a Appellant claiming moved for a mistrial Cassius, Michael but ran into a dead end. that Rivera’s statement alerted the It was not until approximately December of the fact that he was involved in other crimi- 1977 that the authorities became aware of activity. nal The motion was denied. No appellant’s possible involvement. Detec- cautionary requested instruction and tives learned and three given. none was Appellant argues the friends had been in Tucson at the time denial of the motion for was re- mistrial Richard Johnson disappeared. Late We, versible no error. find error. night, on way the back to Phoenix from Tucson, the car appellant and his friends grant deny decision to mo were riding in broke down. Appellant went tion for mistrial rests within the sound dis get help picked and up in a car cretion of the trial court and failure to fitting description ear, of Johnson’s grant a for only motion mistrial is error driven by someone with abnormal hands. such failure was a clear abuse of discretion. Appellant did return to the disabled car Co., v. United States Kahan & Lessin 695 that night. The following morning a friend (9th Cir.1982); F.2d United States v. appellant’s Phoenix, in Rivera, Danny Jackson, (4th Cir.1978); 585 F.2d 653 Unit received a phone call from appellant asking Nace, (9th ed States v. 561 F.2d 763 Cir. for help with the disabled car. Further- 1977); Love, United States v. 535 F.2d 1152 more, appellant told Rivera up him pick (9th Cir.), denied, 847, 97 cert. S.Ct. the side by of Interstate 10 on the way into (1976); v. United States Rivera Tucson. set out for Tucson with (9th Cir.), Faulkenbery, F.2d 879 Bruce McGhee. They had some trouble lo- U.S. cating but eventually Ramirez, found him (1973); L.Ed.2d 692 v. Interstate 10. They side of proceed- P.2d This is be they rejoined where ed to Tucson appel- cause the judge always trial best fixed They lant’s other friends and the car. position to determine whether a particular Though to Phoenix. returned there incident calls for a judge mistrial. The trial stories, in their both were inconsistencies is able to atmosphere trial, sense the appel- Rivera that after and McGhee stated the manner objectionable which the made, lant was indicated that he had picked up he statement was and the possible effect killed a before on crippled night man and trial. United Jackson, left him in supra; the desert. States United States v. Apparently reporter appellant’s mistrial, however, did not hear motion for a appear this statement as it transcript. does the trial the statement was made. arguments It is from clear Nace, supra; merely how he Love, relating supra; United States United States v. to have committed the crime. Faulkenbery, supra. supposed except recording, for Clark’s con- tape case, judge instant trial statement, played the jury. cluding found that Rivera’s statement was inadver thereof, minus also Clark’s con- transcript A tent, not solicited prosecutor, into statement, admitted evi- cluding that, in context, the appreciate used Clark’s vigorously Appellant dence. the statement associating appellant in an detectives statement earlier other criminal activity. say We cannot objected to him impeach effort trial abused his discretion in so find concluding judge’s exclusion ing. Love, supra; United States v. argues now comment. supra; Fa Faulkenbery, error. reversible exclusion constitutes vors, 375 P.2d 260 cf. agree. do not Wyant, (8th United States v. 1312 576 F.2d Cir.1978) (unsolicited statement from wit Clark’s excluded The trial court grounds ness not for or cautionary mistrial it em opinion guilt because Cassius’ instruction); Resnick, 488 to be decided braced an ultimate issue (5th Cir.), denied, F.2d 1165 cert. 704, A.R.S. However, 17A 991, 2400, 94 (1974) S.Ct. 40 L.Ed.2d 769 in Evid., “[testimony Rules of provides (motion for mistrial based on introduction other form of an inference opinion of evidence of activity unrelated criminal because objectionable wise not admissible is denied); Jackson, properly United States v. decided to be an issue embraces ultimate 423 F.2d (9th Cir.), 506 cert. 400 Thus, trial by the trier of fact.” 823, 44, (1970) U.S. 91 of statement judge’s exclusion (witness’ passing reference to fact that de this appeal, proper ground. On fendant had was not “another case” judgment uphold Court the trial court’s will grounds mistrial). for even reached legal the correct result reason. State wrong though based on the Opinion Evidence 354, 108 555 P.2d Dugan, 113 Ariz. of One by appel- theories advanced Cassius opinion We find that Clark’s lant in his defense was that Michael Cassius excluded properly victim was killed the had killed the victim. Part of this defense of 701, Rules A.R.S. based on Rule 17A rested on the testimony Henry Clark. Evid. Clark spent had a Pima days several in “in testimony provides lay Rule 701 County holding tank with Cassius and a is limited opinions or inferences form of William Taylor During this con- (a) are or inferences which opinions to those finement, spoke Cassius of the murder of perception of rationally based on the Later, Richard Johnson some detail. (b) helpful to a clear under- witness and bargain an a effort to strike with the state standing testimony his determina- sentence, regarding his Clark related this a in issue.” At the time of tion of fact conversation with to detectives. Cassius, Clark did not conversation with tape- His statement to the detectives was of the circumstances surround- any know saying and concluded with Clark recorded Johnson; he was ing killing of Richard it.” At quite “I he am sure [Cassius] not even aware that there had been kill- trial, appellant’s Clark testified ing. perception remotely even holding only in the tank that Cassius’ statements killing with the was his discus- for which he connected only referred to murder simply (Cassius) being investigated and that sion with Cassius. That suffi- 2. Limitation visory first-hand Berger, See Fed.R.Evid. 701 Ad- in Ariz.R.Evid. 602. Committee’s Weinstein’s Evidence knowledge or observation embodied (a) is the familiar Note; J. Weinstein & M. ¶ requirement of ^[02] at 701- under rule knowledge.”) 633 P.2d admissible 701 because not “based on cf. State v. (1981) as a Jessen, lay (witness’ witness 130 Ariz. testimony personal opinion 7, cient to an rationally support opinion upon parties re- with shortly] after [contact garding responsible who was for the killing. the accident” their as to who was There may well be cases in which a witness’ driving the car was not rationally based on perception only includes not a conversation cf. excluded); perception properly their individual, with an but also sufficient Adamson, 665 P.2d knowledge of the circumstances of the act denied,-U.S.-, 104 S.Ct. aor sufficiently close association (statement 77 L.Ed.2d individual that may witness rationally bombing car victim that “did defendant it” opine that the individual did the act. Cf. upon arranged based facts that defendant Williams, hotel, meeting called victim while was (1982) (woman’s recorded opinion that waiting meeting place, change at hotel to she boyfriend’s believed her confession to parking and bomb was detonated in lot as her that he had murdered his ex-wife ruled go leaving newly-arranged victim was admissible). case, however, The instant is meeting place should not have been admit not such a case. There is no evidence that ted because not based on vic sufficiently Clark and Cassius prior knew each other personal knowledge). tim’s put each being holding tank. Hearsay Description Composite addition, Cassius had a self-serving motive appellant’s One the witnesses at discussing the killing3 and Clark Sergeant De Guzman the Pima self-serving motive for relating that discus- County Department. During Sheriff’s sion to the detectives.4 None of these fac- cross-examination it was established that or tors the fact cross-exam- days body two after the victim’s was discov- ined Clark on apparent his change per- ered, detective, the direction of a De ception of Cassius’ statement heighten the spoke Guzman with a Hyatt. Mr. Arthur reliability perception of Clark’s or his re- Hyatt reported that he had information sultant opinion. As Clark’s that he a “suspect” about in the killing Johnson “quite sure” Cassius killed the victim gave description. Using “Identi-Kit,” an cannot be said to have been rationally based De Guzman made a composite of this sus- perceptions, it was properly ex- pect and photographed the composite.5 Skeet, See cluded. By the time of appellant’s trial photo- the (9th Cir.1982) F.2d (opinion testi- graph had been lost. De police Guzman’s mony properly “predi- excluded because not report, which contained Hyatt’s description cated on concrete facts within witness- [the and the information necessary own to recon- observation and recollection —that es’] composite, struct the perceived senses, facts from their were availa- own Guzman, ble. In distinguished opinions questioning or his from conclusions De de- facts,” drawn Randolph quoting from such fense counsel attempted get descrip- Collectramatic, Inc., 590 F.2d tion contained in report 847-48 into evidence. Henricks, (10th Cir.1979)); The prosecutor’s objections hearsay were (Mont.1982) (because two sustained. At a later outside proceeding “[t]he accident,” witnesses here did not see the jury’s presence, argued defense counsel opinions and because were based that the photograph loss of the com- “[t]heir tank, person detectives, holding among things, 3. The in the third William 4. Clark told other Taylor, being and Cassius were accused of co- exchange about Cassius’ comments in for the conspirators in another crime. Cassius had year prison, of a withdrawal four-to-twelve sen- frequently by been called out of the cell detec- year proba- tence and the substitution of a six questioning tives him about the John- Richard tion term. killing. Taylor, apparently son afraid Cas- evidence, going sius was to turn state’s con- description appellant, 5. The did not match Mi why being fronted him as to he was called out Cassius, anyone chael or else connected with appease Taylor, so often. To Cassius detailed the case. being ques- the murder about which he was cellmate, Clark, tioned. Their also heard Cassi- recounting us the matter. condition, or immedi- ceiving the event or posite pre-trial violated disclosure rules case, In instant charges against ap- ately he moved to have the thereafter.” declarant, relating the alternative, pellant Hyatt, dismissed. per- argued description description perceiving that the was admissible while he Indeed, an exception hearsay immediately rule under or thereafter. son 803(1) 803(24). find Ariz.R.Evid. from the information cannot determined be against trial court ruled his informa- properly obtained Hyatt available how appellant. present are not statements Hyatt’s tion. 803(1). under Rule sense impressions

First, we find that the loss of the photograph composite, resulting does not fall the description being provided copy, hearsay rule exception within the pre-trial violate disclosure rules. Ariz.R. 803(24). 803(24) pro Rule created 15.1(a)(7)requires Crim.P. the prosecu spe “not for statements exception vides an tor make available to the “mate defendant foregoing any of cifically covered mitigate rial or information which tends having equiva exceptions [803(l)-(23) but ] negate guilt.” pho the defendant’s of trustwor guarantees lent circumstantial tograph composite case instant oth the trial court makes provided thiness” and, falls within rule if the state instant In the specific er determinations. the photograph possession, in its rule guarantees case, there are no circumstantial would its require disclosure. The state state Hyatt’s of the trustworthiness did, however, not have photograph. It above, infor is no ment. stated there As have the formula from which the composite how obtained indicating Hyatt mation and, therefore, could have been reproduced information. do not fall statements Hyatt’s prosecutor could have made another 803(24). within Rule photograph question disclosed it. required is whether Rule 15.1 that he do so. argu an additional Appellant makes hold it did not. claims, He for the first appeal. ment on time, foun lay proper that his failure provided De Guz- hearsay Hyatt’s dation for the admission report The that report. man’s indicated was the state’s fault. It was statements a given description, that Hyatt Arthur fault, claims, appellant the state’s because description that was composite based on a state, the either because it failed to collect made, compos- a of the photograph and that the or it lost infor information because the report . the ite taken. mation, provide him with the in could not from which com- the formula the included necessary about Hyatt lay formation the reproduced. Appel- have could posite ar Consequently, appellant’s foundation. position a to create just good was in as lant concludes, a gument sanction the trial composite photograph newa any court should have waived foundation in the absence Consequently, the state. or at least instruc requirements given an so, do the that it request by appellant any ap tion lost evidence such as was about pro- 15.1 to required by not Rule state was Willits, proved in composite for a photograph duce new (1964). with Appellant’s claim is appellant. merit. out Second, court we find that the trial that there is no parenthetically We note statements correctly Hyatt’s ruled that or destroyed indication that the state lost admit describing person were De Guzman any concerning Hyatt. any information not within the hearsay and tedly event, 803(1), appellant in the court below 803(24) exceptions. Rule 803(1) or argument request nor that make this impression”, creates “present sense entitled or be waived requirements foundational rule for state exception hearsay the an given. Willits instruction be or “describing explaining an event that or ments have considered may may or not per- the trial while declarant condition made hold, such sanctions appropriate. deciding how- “In whether the is Defendant ever, that he or not do not the certainly required guilty guilty, was not consider However, possible are punishment. you them own impose on his motion. advised that the death not penalty does Question by Prosecutor apply particular in —in this case.” trial, appellant At his Larry called Appellant argues that instruction inmate, an Raidy, Arizona Prison as a State brought it improper because information During defense witness. cross-examination about possible sentencing before the prosecutor the by following exchange the argues He that it was prejudicial because occurred: promised jury the would re- appellant “Q. How long you have known Mark convicted, ceive a light sentence if thus Koch? convincing jury the to convict on evi- weak “A. Since agree about dence. We the appellant given. instruction should not have been “Q. Are you and he pretty good friends? do agree, close, “A. Never real but we were prejudiced improper instruction. friends. Arizona, In a criminal trial “Q. Do you belong to any organizations exclusive function is to deter Mark Koch belongs to? mine guilty whether defendant is Objection, “[DEFENSE COUNSEL]: trial guilty. The court determines matters Your Honor. of punishment. “A defendant entitled Yes, “THE COURT: I’ll sustain ob- a fair trial and to a verdict of a jury upon jection.” without evidence consideration of Appellant argues Burnetts, inflicted,” asking ques- punishment membership 208, 212, about See organizations (1956). Ariz. 295 P.2d Dyke, State v. Van prosecutor improperly implying that both Consequently, court’s Raidy were members of instructions generally should touch Aryan This, Brotherhood. appellant ar- the subject punishment except to advise gues, was improper evidence bad the jury not to consider it. Appellant’s character. argument fails. There is When instructions nothing prosecutor’s improperly ques- mention subject punishment, re tion that would the jury lead to infer that viewing must determine whether appellant belonged to the Aryan Brother- error was prejudicial. United States hood any other sinister organizations. Davidson, (6th Cir.1966). 367 F.2d 60 In the Aryan Brotherhood was never men- case, context of this pun reference to during tioned the trial and there is no indi- prejudicial ishment have it might if cation that the even jury knew it existed. convicted, had suggested appellant, that if Questioning Raidy revealed that and would leniency, be treated with and had appellant had known each other since 1969 to thereby jurors induced reach a com gone and had to high school together. They v. See United States promise verdict. could have been members of any number of Glick, (2d Cir.1972) 491 and United 463 F.2d context, organizations. the prosecutor’s Davidson, v. supra States (trial in judge questioning appears nothing to be more jury structed deadlocked that it could rec attempt than an show Raidy to that ommend leniency jury shortly thereaft appellant and, were long time friends there- er guilty returned verdict with recommen fore, Raidy that was biased in favor of If, however, leniency). dation of the refer appellant. It did improper not amount to punishment ence to did not indicate that of appellant’s evidence bad character. be leniency would treated Jury Instruction does not to have appear compro induced In its instructions the trial jury, mise of the and if part jury jury on the court told the jury: pun- instructed not to consider properly

106 ishment, appreciable might then there is no dan be imposed suggest nor did it that Cox, ger prejudice. United v. See States appellant would not receive the maximum (11th Cir.1983) (trial 696 F.2d 1294 applicable sentence in the event he was explained range punishment but possible guilty. may found Even instruction maximum, did not refer to a specific be interpreted suggesting appellant might intimate what sentence he be in would be treated with there is no leniency, clined that give, jurors and informed the jury indication that was induced to potential punishment was not their con compromise on that basis. The instant case Calandrella, cern); v. 605 United States Glick, supra, is not like v. United States (6th Cir.), denied, F.2d 236 cert. Davidson, supra, v. United States State 522, 100 62 L.Ed.2d 420 S.Ct. Burnetts, v. in which consideration of supra, (trial judge inadvertently jury possible told part jury in the leniency clearly played sentence not to consider jury but told and, Davidson, deliberations, in Glick earlier re punishment disregard and to his juries. “unlocked” deadlocked actually Paduano, marks); United v. 549 F.2d States (cid:127) the erroneous instruction denied, (9th Cir.), U.S. advis- accompanied by proper instruction (1977) (trial judge S.Ct. not to consider ing jury that it was jury advised non-deadlocked it could recom its verdict. possible punishment reaching that the leniency question pun mend but ignored jurors will not that the presume up shortly ishment was to the court and absent some indication this admonition verdict with jury guilty thereafter returned Parker, 116 Ariz. did. v. they State no recommendation of United leniency); v. Reynolds, P.2d (6th Cir.1973) Craig, 477 F.2d 129 (App.1980). (trial judge explained sentencing procedure not prejudiced conclude that but did not would be leniency indicate and his convic- instruction the erroneous granted jury punishment and advised on that basis. up judge); United States need not be reversed tion Jackson, (5th Cir.1972), cert. 470 F.2d 684 3019, 37 U.S. to Jury Note (1973) (trial advised judge

L.Ed.2d 1004 deliberate, retired to jury After non-deadlocked it could recom jury stating: “Can judge a note to the trial sent mend but also made clear that the leniency Without transcript?” some of the we see determination as court made the ultimate counsel, pros- or the appellant, States, notifying Pittman United punishment); a note to the ecutor, judge sent (9th Cir.1966) (trial 368 F.2d 560 court made to the sponse jury. error). reversible prej- have been possibly could not case falls udiced the error. We find that the instant there within the of cases in which category Arizona, judge may not In prejudice. of appreciable danger was no the defend with a unless communicate advised the The erroneous instruction and notified have been ant and counsel apply that the to penalty death present. to be State opportunity given what sentence case. It did not indicate McDaniel, 188, Justice, v. FELDMAN, 136 Ariz. concurring. P.2d specially (1983); Mata, v. State Ariz. disagree I because I the ma- write with P.2d 938, 101 of jority’s analysis pertaining the issues see, 22.3, of Clark’s characterization the “Cassius con- This is A.R.S.R.Crim.Proc. true whether fession.” the communication occurs before or after that though Defendant contends even the jury retires to deliberate. v. State portion tape opinion excluded was an Mata, supra. judge The trial in the instant not it perception, based was admissible case should have notified impeachment of direct testimony. Clark’s sending counsel before note jury. to the judge recognized The trial this issue that stating rule, It is also the that gives ... version that now in his [Clark] reversal not is if it required can be said ... present testimony certainly is less beyond a reasonable doubt that the defend beneficial the defense than the version ant prejudiced by was not the improper gave that he in that that he statement communication. McDaniel, supra; State v. made Detective Back Gordon.... Mata, State v. supra; Benford, well, flat out indicated sure [Clark] (App.1981). This telling was me what he had [Cassius] rule applied was McDaniel, State su [, I done so therefore and] believe[d] pra. McDaniel, jury requested tran done had it.... Now [Clark has] scripts testimony two witnesses. statement, strong come off of that The trial responded with a note stat puts being ... in the word was [Cassius] “It is not ing: available.” 136 Ariz. at investigated suppos- [the crime] 665 P.2d at 79. This Court held that edly ... had done [it]. communication to jury, though improp words, In other the issue before the er, prejudicial. was not it held that was whether Cassius’ statement to Clark operated simply as a answer, refusal to explana- was a confession of a crime or an it did not involve the giving the jury investigation. the police The initial information concerning the facts ap or law police quite statement to the that “I am plicable case, and, therefore, it,” may sure have therefore [Cassius] could have not coercive any effect on admissible, for the substantive improper communication in purpose but as showing opinion, Clark’s indistinguishable instant case is from impeachment testimony Clark’s trial in McDaniel. are there implied though explicitly which never — no present circumstances sug this case stated —that Cassius had an in- described gesting communication, though vestigatory process rather than a con- made McDaniel, non-prejudicial in prejudicial Williams, fession. See State v. conclude, this case. Consequently, we we McDaniel, did in that the error course, regard Of prejudicial and reversal not required. confessing truly whether Mata, See also supra; State on either side of issue. admissible Benford, supra. side, subject If admitted on one it We have examined record for funda- impeachment directly on the indirectly mental error as required by 13- A.R.S. § However, other. directly Clark never 4035 and find none. judgment of con- directly asked and never stated whether viction and the sentence are affirmed. confessing merely Cassius had been re- and, best, lating suspicions police HOLOHAN, C.J., and HAYS and CAM- portion only excluded statement had ERON, JJ., concur. tendency impeach.' an indirect In addi- circumstances, I believe Under these cross-examina-

tion, admit under Clark did should not have the portion even if had not told that he by defense counsel error, prejudi- excluded, any, relating simply police that Cassius cial. ini- that his information investigatory “what police had told

tial statement did.” times did it three

Q. You said [Cassius]

here?

A. Yes. notes Reporter’s reference over the de power stating: to its broad “None guilt Therefore, fendant of his but fol you event transcribed. have been with instruc lowed erroneous comment collective recollec- depend your should disregard possible by communi- argues that tions.” decision); Er punishment arriving at its him notifying without cating with the States, (6th win v. 242 F.2d 336 reversible error. committed judge the trial Cir.1957) (trial judge’s instruction that failing err in that the We find certain miti guilty the event of a verdict and his jury’s note notify appellant be considered gating circumstances should sending the re- response before intended sentence, setting the Court in find,

Case Details

Case Name: State v. Koch

Court Name: Arizona Supreme Court

Date Published: Oct 6, 1983

Citation: 673 P.2d 297

Docket Number: 5527

Court Abbreviation: Ariz.