State v. Riggs

another claim of The State concedes that The trial court’s have merit.

error does mistakenly entry reflects

minute crimes on committed the while

Defendant release, of A.R.S. section

felony in violation allegation That was withdrawn

13-604.02. sentencing. at given no effect entry 13- in the minute to section

reference be deleted.

604.02should for funda- reviewed the record

We have error and have found none.

mental

judgments of conviction and sentences entry minute

affirmed. The reference felony being release

to the Defendant is deleted. at time of the offense

status GARBARINO, P.J., J.,

PATTERSON,

concur. P.2d 714 Arizona, Appellee,

STATE of RIGGS, Appellant. Martin

Donald

No. 1 CA-CR 94-0970. Arizona, Appeals of

Court of 1, Department B.

Division

April 1996. 21, 1996.

Review Granted Oct. Woods, Attorney

Grant General J. Paul McMurdie, Counsel, Chief Appeals Criminal Section, Cattani, and Kent E. Assistant At- General, torney Phoenix, Appellee. for Bassett, Phoenix, Appellant. Neal W. OPINION THOMPSON, Judge. (defendant) Riggs appeals

Donald Martin his convictions and sentences for six counts forgery, claiming that business records expert and improperly were admit- ted into evidence his and that to con- frontation per- was violated when he was not victim, Enos, Timothy mitted to examine pre-trial about Enos’s refusal to allow a in- following reasons, terview. For the af- we firm. AND

FACTS PROCEDURAL HISTORY business, and Defendant Enos started a Gay (PGMS), Matching Personal Service checking June 1993. PGMS business had a account with Chase Bank Arizona and signators both defendant Enos were sign the account. Enos allowed defendant to his name to checks in absence his for busi- advertising purposes. ness Two la- months ter, Island, leaving Enos moved to Rhode charge defendant in constructive the now insolvent PGMS. December, 1993, attempted store, grocery

to cash a PGMS check at a but handwriting objected not a being that Bloch was the store while the check left expert not render made out defen- and could verified. check was objection was signed Enos’s name. Alerted with on the matter. dant pos- police subsequently found defendant overruled. made of five checks session additional PGMS signed or he had not testified that Enos signed name. to himself with Enos’s out and any his name to sign to authorized defendant he police admitted that believed Defendant question. in On cross-examina- of checks the the account. were no funds in PGMS there tion, if he had refused asked Enos defendant consequently indicted on Defendant was The trial to trial. prior to be interviewed Bloch, trial, forgery. six At counts of Sharon objection the court sustained the state’s for First Interstate the records custodian However, Enos stated question. on re-direct (which acquired prior Bank Chase Bank had grant an that, he believing did not have to trial), to provide called as a witness was attorney, he had the defense interview to for of PGMS’s foundation the introduction re-direct, af- so. On Enos declined do signature and card. bank statements signator on the that was a firmed purpose the statements were to be used for account. showing insufficient funds of that there were on all six counts was convicted Defendant presented had cover the check defendant mitigated, repeti- forgery and sentenced to of store, thereby demonstrating that de- at the tive, year for each eight concurrent sentences forge checks with fendant had motive to judgment timely appealed from He count. disputed as to Enos’s name. Because it was jurisdiction pursu- and and we have sentence witness, an undisclosed

whether Bloch was (AR.S.) § 12- ant to Ariz.Rev.Stat.Ann. testimony laying limited the trial court her 13-4033(A). 13-4031, 120.21(A)(1), and for of the bank docu- foundation admission ments. DISCUSSION jury’s presence, Bloch testified Out the and of the Bank Statements Admission kept in her that the documents had been Signature Card custody regular the the use of the bank in that the course of business. She testified alleges that the bank Defendant at or statements would have been made out improp signature card were statements and checking the that the transactions near time erly rec admitted into evidence. Whether signature She testified that the occurred. sufficiently admitted is reliable be ords day would have been filled out the card trial court. left the discretion the sound cross-examination, ad- was dated. On Bloch Petzoldb, 272, 275, 836 P.2d State v. personal she not have knowl- mitted that did pre prosecution (App.1991). indi- edge prepared the records that were the custodian rec sented from practices Chase’s had cated what business support bank in the for the successor ords regards preparing in records. She been question. in the documents admission of that the documents had not further testified documents were that the custodian testified true Over been certified as and authentic. kept regular course business objections, the documents were defendant’s or near the time when the were made at admitted into evidence. relating to checking that account transactions rec The trial court admitted the jury’s occurred. presence, defense counsel ords, in the any inconsistencies noting that to describe five of the checks asked Bloch weight that signatures procedures to the clerical went question. Bloch noted that documents, rather be hand should accorded appeared to be written different re-direct, admissibility. with We concur than to their their endorsements. On than analysis the docu signa- and find that compare court’s then asked Bloch to state See Saks were admitted. question to ments on one of the checks ture “Export Champion”, signa- Inc. v. Int’l handwriting on the PGMS M/V Cir.1987) (documents (2d signa- F.2d Bloch indicated that ture card. under the business properly admitted appeared dissimilar. Defendant tures also exception permission records even when foundation their he had to cash checks in employee is laid a witness who is not an question, handwriting on his Bloch’s them). prepared entity inconsequential in event. any was Further, because the statements Cross-Examination of Enos simply were cumulative of insuffi evidence funds, cient because defendant admitted that Defendant that when the trial asserts he were believed there insufficient funds to objection court sustained the to de state’s checks, cover the authentici because the question fense counsel’s to Enos ty issue, signature any card was not at pre-trial the refusal to his conceivable was necessarily error harmless. to confrontation was violated. The Turrentine, See State v. argues ruling proper given state that the (error 238, (App.1986) admitting P.2d 243 in 13-4433(E). implications § the of A.R.S. already by evidence admitted to is defendant that, if provides This statute a defendant harmless). essentially We do not see how comments at trial victim’s on the refusal to testimony signatures the the that on checks interviewed, jury the is to be be instructed did the signature not match defendant’s as it right that the victim has the to refuse an appeared signature prejudiced on the card interview, pursuant Arizona to the Constitu the defendant. light analysis right tion. of our of the to below, a defense set forth refuse Expert Testimony Custodian’s 13-4433(E) § providing we construe a Defendant contends that he was remedy in the event comment on the victim’s unduly Bloch, prejudiced assertedly when an right constitutional is in fact made. The witness, go to undisclosed was allowed be recognize right does not a statute defendant’s yond testimony the limitations on her im inquire to as to the reason a victim has posed by the court giving trial her interviewed, declined to be as there is no signature on his recog when she was not a right. such handwriting expert. nized The admission of right to a cross-examine witness expert testimony will not on be disturbed part right is a vital of the of confrontation. appeal a clear absent abuse of discretion. Texas, 400, 403-04, Pointer 380 U.S. 85 441, 425, Mincey, State v. 141 Ariz. 687 P.2d 1065, 1067-68, (1965); 13 L.Ed.2d 923 1180, 1196(1984), denied, cert. 469 Correll, 468, 473, State v. 148 715 Ariz. P.2d (1984); 105 S.Ct. 83 L.Ed.2d 409 (1986). Furthermore, § A.R.S. 13- DeFrancesco, 88, 92, McGuire v. Ariz. 4433(E) clearly contemplates possibility (App.1990). 811 P.2d It is not nec might that defendant a comment about the essary expert possi that highest an have the pro victim’s refusal be to interviewed and qualifications degree ble or or of skill knowl Nothing a vides corrective instruction. in edge testify. City to Lay order of expressly prohibits a the statute defendant Mesa, 168 Ariz. 815 P.2d questioning from a victim about the exercise (App.1991). expert opinions An is one whose right discovery to of the refuse defendant’s special acquired knowledge based on request. study through experience or which careful is general. people unknown to v. Su State 2.1(A) However, II, § Article Court, perior 152 Ariz. 732 P.2d expressly permits the Arizona Constitution 218, 221 (App.1986). unwilling victims to refuse defendant’s dis O’Neil, trial, spe covery requests. At Bloch testified her about State v. signature 180, 181-82, cial knowledge comparison (App.1991). ac 836 P.2d 394-95 quired past experience working Although permit from her this right does not a victim trial, testify bank. The trial court to did not abuse its dis to refuse at defendant’s S.A. Court, allowing testify Superior cretion in Bloch to that the signature (App.1992), provision recognize checks match the did not does handwriting signature “right defendant’s on the a victim’s to remain silent” in the face attempts by pre- card. Because defendant’s defense was that to conduct claim, by the reject advanced We interrogation. the trial We hold trial dissent, right to confront that the defendant’s attempt precluded defendant’s court trumps the victim’s testifying victim impeach the victim’s trial silence, to be implicit in the right, through inquiries the exercise imputation that the real reason from free constitutional decline right was of a constitutional for the exercise fundamentally unfair It is interview. Notwith testimony at trial.1 allow false person to advise arrested state rights may be some victims’ standing that then later intro silent and remain due give way to required to silence to post-arrest of such duce evidence process rights, the victim’s decline testimony. trial impeach a defendant’s Roscoe, State an interview is “absolute.” against post-arrest use of protection such (1996).2 to decline 912 P.2d 1297 itself. State v. implicit is silence right of in the “rooted” defense interview Sorrell, P.2d Ariz. fairness, respect, “to treated with victims be (1982). Victims too must be advised intimidation, from dignity, and be free in constitutional their harassment, abuse, throughout the crimi terrogated by the Ariz. defendant. Const. II, justice Ariz. art. process.” Const. nal 2.1(A)(2), (12). II, § It be funda would art. 2.1(A)(1). § to be sub To allow the victim mentally unfair to exercise allow victim’s jected imputations as a result to baseless by to this constitutional burdened of be of an “absolute” constitutional the exercise (A)(1) consequent attacks on trial which of the right would render subsection Rights nugatory.3 Bill of compelled provide. the victim can be to Victims’ dictated, holding Zile a at the time Van The believes that the defendant has a 1. dissent different 443, Peter, People constitutional to cross-examine victim authored. In v. 55 Ill.2d was denied, (1973), grant regarding pretrial inter the refusal to a cert. 417 U.S. 303 N.E.2d 398 920, 2627, (1974), string by view. entire of In the citations offered 41 L.Ed.2d 225 94 S.Ct. attempt in an to that it is dissent establish trial Supreme Court held that the court Illinois to reversible error for a trial court to refuse disallowing in did not its discretion abuse opportunity to allow the defendant the cross- prosecution wit to cross-examine examine a victim about the victim’s declination regarding participate in their refusal to nesses participate pretrial only trial, to one noted the defense interviews before case, 851, Atteberry, Ill.App.3d People v. 213 157 general trial courts have broad latitude rule that 365, (1991), 572 434 found re Ill.Dec. N.E.2d Peter, at 404. The in such cases. 303 N.E.2d Atteberry, versible error in such a scenario. In Brown, holding People in 87 was reached v. same District, Illinois, Appellate of Third Court 586, 368, III.App.3d 42 409 N.E.2d 81 Ill.Dec. Timmons, People opinion in v. relied on its own (1980) (defense impeach vic counsel could not 861, 762, Ill.App.3d 449 114 70 Ill.Dec. N.E.2d by eliciting victim had re tim information that (1983), which in turn a an 1366 followed rule by prior counsel fused to be interviewed defense by panel sitting a of the court in nounced same Williams, 703, trial), People v. 86 Ill.Dec. to Zile, People 48 District in v. Van Fourth 1082, (1985) (no N.E.2d 475 N.E.2d 1082 475 747, 972, Ill.App.3d (1977). 6 429 Ill.Dec. 363 N.E.2d excluding of in cross-examina abuse discretion 366, Atteberry, at 572 157 Ill.Dec. refusal to talk to defense tion witness's Timmons, 435; at 449 N.E.2d at 70 Ill.Dec. counsel). N.E.2d at 1371. Neither nor Van Zile Timmons by unpersuaded the dissent’s citation to We are reversed on the of the refusal to convictions basis pertinent holding ignore the which Illinois cases challenge allow the defendant to a witness as to supreme court that state. of the rule on this the refusal to interviewed. The thusly: very few that has in Zile announced "No Arizona is one a states issue Van was 2. rights squarely point.... [T]he cases are cited to us to constitutional status. elevated victims’ puzzlement. Mississippi, is a We think that it is nor the source of the lack cases Neither Illinois dissent, bring proper upon out the fact so. to on cross-examination has done cases relied Comment, Dixon, has to the exam that the witness refused talk Crimi- See Thomas B. Arizona 751-52, Rights 6 at iner's side of the case....” Ill.Dec. Bill Procedure the Victims’ nal After Implications 363 N.E.2d at 433-34. a Victim's Absolute Amendment: Discovery Request, "puzzlement” regard- Right 23 Ariz.St. Van court Zile Refuse (1991). precedent, ing purported led to 17 lack of which L.J. 833 n. consequent determination that the court nothing here which in the record 3. There is proper its own rule as to free scope tion, fashion any suggest for the victim’s would other reason kind situa- of cross-examination this the fact that to be interviewed than is declination on the absurd when it seen borders clear, an such interview. ample, binding precedent but he had did exist 578

A to confrontation to cross-examine a witness is a subject Alaska, is part reasonable limitations. Michi vital of confrontation. Davis Lucas, gan 145, 148-50, 308, 315-16, 1109-10, U.S. 111 S.Ct. 415 U.S. 94 S.Ct. 1743, 1746, (1991) (restric (1974). However, 114 L.Ed.2d 205 39 L.Ed.2d 347 cross-ex tions on a criminal defendant’s to con may amination be restricted based on con front arbitrary adverse harassment, witnesses not be prejudice, marginal cerns for or disproportionate or purpose Lucas, to the it was Michigan relevance. 500 U.S. designed serve); Alaska, 1743, 1746, Wood v. 957 F.2d 111 S.Ct. 114 L.Ed.2d 205 (9th Cir.1992) (Sixth (1991); 122, 125, Amendment Fleming, State v. (1977). to cross-examination need not include 571 P.2d The balance be presentation evidence; of irrelevant is competing hinges upon tween these interests within the trial court’s discretion to deter oppor whether the defendant was denied the relevancy); mine Romley State ex rel. tunity present bearing information on the Court, Superior credibility issues the case or on the of a (trial (App.1992) judges Arsdall, retain wide witness. Delaware v. Van latitude, insofar as the 680, 106 1431, 1435-36, Confrontation Clause 89 L.Ed.2d concerned, impose (1986); reasonable limits on Fleming, 117 Ariz. at cross-examination based on concerns such as P.2d at 271. safety interrogation only witnesses’ that is A witness’s refusal to in- relevant). marginally thusWe construe Ar clearly terview is relevant. State v. Van 2.1(A) § ticle II implicitly protect a victim Zile, Ill.App.3d 6 Ill.Dec. interrogation where, here, from at trial (1977), N.E.2d 429 the court reasoned: the victim has simply refused an interview credibility always of a witness is because he was told he had a constitutional correctly, issue —more A issue. refusal Moreover, right to do so. on re-direct exam to talk in advance of trial to the other side ination, Enos testified about his reasons for reasonably hostility by could indicate denying pre-trial Consequently, interview. side, inquiring witness to the or at least a question put answer to the was before for, in, bias or an interest a favorable jury. We find no violation of defendant’s caking say outcome for the side him. We rights. constitutional ‘could’ because triers the fact need not conclude, invariably they reasonably so but

CONCLUSION can do so. that Bloch’s ted and dant’s fundamental error and have found none. Be- ords cause we find that the PGMS business rec- improper, tions and sentences. We have examined the record before us for were to decline a inquiry insignificant, we into the victim’s exercise of the affirm was pre-trial admitted into the trial court convic- and that both properly interview was the defen- evidence, admit- witnesses who wik tedly, used tedly But not to be interviewed if covery, both sides at a minimum know the Under our interview ^[*] this against too, both sides have refusal, witnesses have a ^[*] present system them to other’s witnesses. Admit- ^[*] oppose our argue ^[*] right they opinion, them. Admit- corollary right bias, of liberal dis- * * so choose. hostkity, attempt can be outcome, interest ak of which look to

EHRLICH, J., concurs. credibkity. It is a risk the witness or his KLEINSCHMIDT, Judge, dissenting: side takes. That there are reasonable in- ferences from such gain- conduct cannot be respectfully I dissent I because believe inexorable, Although they said. are not that limiting cross-examination of the victim they up are reasonable. It is to the trier his refusal to in- accept reject of the fact to or them. terview violated the defendant’s to con- frontation under the United Ari- States and Id. 6 Ill.Dec. at 363 N.E.2d at 429. See McCollum, zona People Constitutions. Ill.App.3d also v. 239

579 (1992) (state s attor- defendant or the defendant 240 If the Ill.Dec. 607 N.E.2d 180 re- at trial on the victim’s ney comments is right to defense interview witness’s interviewed, the court shaU to be fusal bias, hostility, preju relevant demonstrate victim has the jury that the instruct outcome); dice, People Alli or interest v. under the Ari- an interview right to refuse son, 116, 602 Ill.App.3d 236 177 Ill.Dec. zona Constitution. (1992) (same); People Atte v. N.E.2d 1288 acknowl- legislative as a I this statute view berry, Ill.App.3d 213 157 Ill.Dec. who refuse interviews (1991) State, edgement that victims (same); Lacy N.E.2d v. 572 434 about such likely to cross-examined (Miss.1993) (same); v. Tolbert 629 So.2d 591 majority suggests that the stat- refusal. (Miss.1987) (same); State, 511 So.2d to cover situations merely ute intended was Hallman, 31, 668 P.2d 874 State refusal to be interviewed the victim’s where (1983) (inquiry into refusal defense witness’s placed be- inadvertently improperly or subpoena cred to honor State’s is relevant to jury. legislature If that is fore the what ibüity). Whüe a victim’s refusal be inter intended, presume I it have said so. would may nothing viewed be based more than that, important than if section 13- But more alone, desire be left it must remain 4433(E) is to bar cross-examination of read jury’s prerogative to decide whether such a grant an inter- victim about his refusal to credibiHty. refusal reflects on the victim’s view, separation the doctrine of violates Zile, supra 6 Ill.Dec. at 363 N.E.2d Van powers. purview It not within the is Refusing to at 429. aUowthe cross-examina evidence is rele- legislature define what was unreasonable violated the De tion Susong, 156 Ariz. vant. See Barsema fendant’s to confrontation. State (statute (1988) pur- P.2d Taggart, (App. Ariz. P.2d coverage porting bar of insurance evidence Allison, 1996); supra; Atteberry, supra. unconstitutional). provide does Arizona Constitution unconvincing majority’s I also find deposition, a victim “refuse an analogy victim’s not be inter request discovery other the defendant.” si to a to remain viewed defendant’s 2.1(A)(5). §II, majori Ariz. Const. Art. remain A süent lent. “absolute,” ty rely characterizes this safeguard springs from the constitutional Roscoe, ing on dicta from State v. against self-incrimination. Davis United 29, 1996), States, 452, -, February (Ariz-App. which (1994); 2354, constitutionality classifying with the 129 L.Ed.2d State dealt 295, 672, Anderson, 298, on-duty 102 Ariz. 428 P.2d peace officers as “victims” under (1967). is rooted in “distrust of It Rights Act. a Victims’ However “absolute” self-deprecatory and desire statements” right to refuse interview victim’s into the “cruel putting a defendant to avoid law, yield clearly state it must under when self-accusation, perjury or con trilemma conflicts with the to confront witnesses tempt.” Murphy v. Comm’n protected the United States Constitution. Waterfront Harbor, 52, 55, 84 S.Ct. New York Sims, 584, 533, Reynolds v. 377 U.S. 84 S.Ct. (1964). 1596, 12 L.Ed.2d 678 On denied, 1362, 1393, 506, rehr’g 12 L.Ed.2d hand, pre other a victim’s 13 L.Ed.2d 76 379 U.S. protect rests on the desire trial interview (1964) (Supremacy Clause controls conflicts privacy and minimize contact with victim’s constitutions); and between state federal City ex Dean defendant. State rel Romley Superior ex rel Court State Tucson, P.2d 173 Ariz. Court of County Maricopa, For (1992). (Victims’ (App.1992) Rights Act P.2d 445 weight of more against self-incrimination is pro yield rights to due must to defendant’s right not to be interviewed. than the victim’s of wit cess and effective cross-examination Moreover, of a victim cross-examination nesses). his refusal to an interview does about privacy any Annotated more of an invasion Arizona Revised Statutes not entail 13-4433(E) (“A.R.S.”) the defendant than provides: or a contact with section already requirement inherent in the that the testify

victim at .A Superior trial. S v. Court County

In and For Maricopa, 171 Ariz. (Victims’ (App.1992) 831 P.2d 1297

Rights give Act does not crime victim testify

to refuse to at defendant’s criminal

trial). words, In other such cross-examina victim,

tion of the unlike cross-examination

concerning defendant’s exercise of his silent,

to remain purpose does not defeat the

for which the was established.

Violations of a defendant’s confrontation susceptible analy- to harmless error Arsdall,

sis. Delaware v. Van 475 U.S. 1431, 1435-36, 106 S.Ct. 89 L.Ed.2d 674

(1986); Medina, State (1994). The victim and the business, partners failing

defendant were

and at trial the victim asserted that sign was not authorized to Thus,

victim’s name the business cheeks.

the victim’s conceivably self-

serving restricting cross-examination

precluded thorough inquiry into his motive denying pretrial prej- interview. The

udice that ensues from this kind of error self-concealing.

tends to be Nor Ido believe because, problem is solved on redirect

examination, simply the witness said he de-

nied a interview because he “did not

want to [talk defense A friend- counsel].”

ly question by prosecutor hardly Thus,

substitute for I cross-examination.

cannot find that the error was harmless be-

yond a reasonable doubt and would reverse.

925 P.2d 721 Arizona, Appellee,

STATE of PAXTON, Appellant.

Lawrence D.

No. 1 CA-CR 94-0449. Arizona, Appeals

Court of 1, Department

Division A.

April 1996.

Review Denied Oct. 1996.

Case Details

Case Name: State v. Riggs

Court Name: Court of Appeals of Arizona

Date Published: Oct 21, 1996

Citation: 925 P.2d 714

Docket Number: 1 CA-CR 94-0970

Court Abbreviation: Ariz. Ct. App.