*1 Arizona, Appellee, of STATE MORALES, Appellant.
Joe Cota
No. 3769-2. Arizona,
Supreme of Court
In Banc. 1981.
Rehearing July Denied Corbin, Atty. by William
Robert K. Gen. Grant, Schafer, III and R. Asst. J. Gerald Gen., Phoenix, appellee. for Attys. Morrison, Callahan, & Gorman Cathcart Cathcart, Jr., Tempe, Martin & F. Edwin Feldhacker, by William H. Feldhacker Phoenix, appellant.
CAMERON, Justice. appeals Morales Joe Cota
Defendant first murder and of a conviction imprisonment. We have life sentence *2 jurisdiction pursuant going A.R.S. 13-4031 stabbed victim §§ and was to return and 13-4035. park to the to “finish him off.”
The issues
we must resolve
April
are:
On 20
Morales and Melendez
Tony
1.
were indicted for the murder of
Calis-
Whether the trial
deny-
court erred in
ing
together,
tro. The two men were
juve-
defendant access
tried
to the
murder,
guilty
nile file of a
were found
of first
key
State’s
witness and
subsequently
and were
Cruz Martinez.
sentenced to death.
Melendez,
v.
State
2. Whether the trial court erred in not
Morales,
directing a verdict for the defendant
P.2d 236
prove
the evidence failed to
the defendant killed the victim with
participant
The third
in the murder was
premeditation.
Martinez,
years
Cruz
who was 15
old in
plea agreement
1976. He entered into a
gave
Whether the trial court
a mis-
leading
with the
in
in
incomplete
return for his
jury
and
instruc-
Morales,
tion on
Melendez and
murder
torture.
he
would be treated as a
rather than
The facts necessary for a determination
tried as an adult. Martinez testified and
of this
appeal
matter on
are as follows. On
placed
was then
in
in
custody Adobe Moun-
April
Tony
Calistro and Cruz Mar-
School,
juvenile facility.
tain
tinez went
purchase
to a store to
beer and
while there met Ruben Melendez and Mo-
This court reversed the convictions of the
rales.
obtaining
After
whiskey,
beer and
a new trial because
defendants and ordered
the four
backyard
walked to the
of defend-
the cross-examination of
of limitations
testimony.
ant’s
drinking
home. All four had been
his
regarding
Martinez
inducement for
during
day,
and Martinez testified that
supra.
ee
S
injected
he had
himself with heroin about
defendant,
Before the second trial of
de-
day.
10:00 a. m. that
Melendez and Morales
the trial court to com-
fense counsel moved
began wrestling and Calistro made remarks
pel discovery of the
file on Mar-
comments,
Angered by
to them.
his
Melen-
made
tinez to review statements
Mar-
dez knocked Calistro down and hit him.
at Adobe
tinez to various counselors
Moun-
joined
Morales and Martinez
Melendez in
psychological
and to examine
tain School
hitting
kicking
They
Calistro.
then
prepared
psychiatric reports
after he
clothing
removed his
and carried him to a
placed
custody.
was
in
This motion and a
nearby park
playground
which contained
for a mental examination of
defense motion
equipment. They put
the victim on the
prior to trial.
Martinez were denied
merry-go-round
spun it
for a few min-
separated
and Morales were
Melendez
this,
Following
they put
utes.
him on the
Morales was tried and
retrial. Defendant
ground and kicked and beat him. At some
degree murder. Melendez
convicted of first
point, Martinez left and returned with a
pleaded
degree murder and
guilty to first
garden
yellow paint.
hoe and
The victim
received a life sentence.
Melendez,
was
paint
sodomized
him,
poured on
the handle of the hoe was
FILE
ACCESS TO JUVENILE
times,
thrust
into his rectum several
and he
climbing
key
was tied to a
witness was Martinez.
concrete
device. At
during
night,
some time
he received 19 Defendant asserts that the trial court erred
following
compel
stab
morning
denying
discovery
wounds. The
his
his
motion
body
Martinez,
was found with his clothes tied around
of the file
which was main-
on
neck,
his
arms and
feet. The cause of
tained
of Corrections.
multiple
death was
stab wounds to the Defense counsel' desired the file for two
First,
According
testimony,
chest.
to Martinez’
reasons.
from a discussion with a
the three returned to Morales’ home and
at
Adobe Mountain
counselor
School
held,
the defendant
told Martinez that he had where Martinez was
there was reason
prevent
state-
used to
had made
that Martinez
to believe
records when it conflicts with a defendant’s
inconsist-
case which were
about the
ments
against him and
to confront witnesses
at
the first
trial.
ent with his
juvenile’s
test
necessary
it was
counsel contended
Defense
c
e
d
whether
the file to determine
to examine
i
r
l
i
were made
inconsistent statements
other
b
y
*3
in order to
to other counselors
t
Martinez
i
(1960).
.
705
The United States Su
impeach
effectively cross-examine and
him
preme
has balanced the defendant’s
Court
prior inconsistent statements.
with these
society’s
with
need for confrontation
need
to
mental
The second reason related
the
preserve
confidentiality
juvenile
of
the
Defendant be-
reports on this witness.
records:
information on the
lieved the file contained
policy
protecting
“The
interest in
State’s
sniffing and heroin addiction of Mar-
glue
confidentiality
juvenile
a
the
of
offend-
could be
and that
this information
tinez
require yielding
er’s record cannot
of so
experts to evaluate the
to defense
taken
right
vital
constitutional
as
the effec-
testimony.
credibility of Martinez’
tive cross-examination for bias of an ad-
however,
State,
contended that
The
* * *
verse witness.
State can-
[T]he
reads,
8-207(C), which
A.R.S. §
not,
right
with
consistent
the
of confron-
ju-
in the
disposition of a child
The
“C.
tation, require
petitioner
the
to bear the
against the
may not be used
venile court
vindicating
full burden of
the
in-
proceeding
any
in
any case or
child in
secrecy
juvenile
terest in the
of
criminal
court,
juvenile
wheth-
than a
court other
Alaska,
308,
records.” Davis v.
415 U.S.
reaching majority, ex-
er before or after
320,
1105, 1112,
347,
94 S.Ct.
39 L.Ed.2d
proceedings after
cept
dispositional
in
(1974).
356
purposes of
felony for the
conviction of a
Note,
Restraints on the Ex
Constitutional
investigation
report
presentence
in the Defendant’s Fa
clusion of Evidence
28-444.”
except
provided
§
Alaska,
Implications
vor: The
of Davis
disposi-
prohibits
only
of
the
1465,
1471
ex
73 Mich.L.Rev.
juvenile
juvenile
the
court but of
tions of
388,
A.S.,
N.J.Super.
court erred in to direct a verdict of guilty degree degree to first murder because based its first premeditation charge there was no evidence of oth- on two theories: murder murder agree. Although by torture. do not an instruction premeditation with and murder defining by satisfy is no doubt that an instruction on murder torture “to some There by was authorized. An- propensity” standing might murder torture See alone untoward not., Torture, by Murder 83 A.L.R.3d misleading, we vague be or must read judge instructed the After the trial entirety, instructions in their and consider gave jury premeditation, on he the follow- Richardson, them as a whole. State v. ing instruction on murder torture: 48, (1973), cert. denied type
“Another
of first
murder is 415 U.S.
94 S.Ct.
of this court. whole, When the instructions are read as a perpetrated by “Murder is torture when propensi- the term “or some other untoward the assailant to cause cruel suf- intends ty” misleading result a or erro- does not fering purpose revenge, for the extor- neous instruction. tion, persuasion, satisfy or to some other Reversed and remanded for new trial. (citations omitted) propensity, untoward There need not be an intent to cause HOLOHAN, J., V. and C. HAYS and
death, separate but there must be a in- GORDON,JJ., concur. pain suffering tent to cause extreme and STRUCKMEYER, Justice, purposes, (ci-
for one of the enumerated Chief concur- omitted) ring. enough tations It is not pain
defendant intended to cause extreme Martinez, repeating It bears that Cruz suffering; there must also be evi- juvenile, plea agreement had entered into revenge, dence that he did so for extor- prosecution by with the in return for tion, persuasion or some other untoward testimony against his he would be (citations omitted) propensity, Further- being treated as a rather than tried more, the death must have been caused situation, for murder In this I adult. torture, (citation omitted)” think a defendant whom a Brock, 168, 171, expected testify right is should have P.2d juvenile’s to examine the file to discover asserts, however, matters, any particularly The defendant that this defensive relevant incomplete misleading instruction was statements which would be inconsistent juvenile’s possible testimony. court did define the term with the jury. propensity” “untoward for the opinion I am therefore attempts, by dictionary dependent Defendant defini- should not be tion, prior propensity” that “untoward is whether information has been show obtained, possibly surreptitiously, instruction not clear and that incomplete misleading. may therefore We counselor or from others who have confidentiality breached
record.
630P.2d 1020
In the Matter of Member of the State SWARTZ, Arizona,
Bar of John F.
Respondent.
No. SB-72-2. Arizona,
Supreme Court of
In Banc.