*1 135 the instant 460, the court said: “[i]n prosecution allegation
there no de-
suppressed favorable evidence
fendant; therefore, the failure grant Appellant’s motion
court to 482 at 464.
reversible error.” P.2d rules, existing
Under the the defendant required to show more before he is enti- picture.
tled
DEATH PENALTY not, in opinion,
We discussed involving the penalty.
issues death Fur 238, Georgia,
man 408 v. U.S. 92 S.Ct.
2726, 33 346 (1972) L.Ed.2d and Stewart v.
Massachusetts, 2845, 408 U.S. S.Ct. L.Ed.2d In accordance
with our policy announced regard, penalty
the death is set aside and reduced imprisonment.
to life
Taylor,
State v.
P.2d
(1973);
Chatman,
109 Ariz.
(1973) B subd. A.R.S. §
Judgment affirmed.
HAYS, J., STRUCKMEYER, C. HOLOHAN,
LOCKWOOD and con- JJ.,
cur.
515 P.2d 880 Arizona, Appellee,
The STATE of SKINNER, Appellant. Lee
Robert
No. 2365.
Supreme Arizona, Court In Banc.
Nov. 12, 1973.
Rehearing Denied Dec. *2 present,
when the defendant was not right violate the defendant’s of con- frontation ? As of counsel:
B. to misconduct it reversible error Was *3 prosecutor accomplice to call an Phoenix, by Gen., Nelson, Atty. Gary K. stand, knowing that accom- Fell, Asst. L. and Howard S. O’Dowd John plice would invoke the Fifth Amend- Tucson, appellee. Attys. Gen., for privilege ment not to C., by Franklin, P. Messing, Hirsh & position case where the defendant’s Hirsh, Tucson, appellant. Robert predicated on the mutual inno- J. cence of himself and the accom- CAMERON, Vice Chief Justice. plice ? appeal jury This an from a verdict prejudicial 2. and Was reversible guilty to the judgment and thereon of prosecutor, closing error for the robbery, and crimes of armed 13-641 §§ argument, willfully misstate mate- A.R.S., murder, degree (B) and first 13-643 rial evidence jury with a view defend- 13—151 and 13-452 A.R.S. §§ of purposefully misleading jury of ant sentenced to concurrent terms as to the effect of that evidence? years robbery eight ten for the armed prosecutorial 3. itWas misconduct imprisonment and to life for the murder. prosecu- and reversible error for the following
We are asked to answer the repeated tor to make and warrant- questions appeal: on objections less to defense counsel’s evidentiary A. As to matters: jury, opening voir dire state- May prior ment, 1. impeach- unsworn cross-examination of material ing witnesses, document of a State’s witness be and direct examination of substantively admitted against defense witnesses ? criminal defendant violating without 4. itWas reversible error for the
the hearsay rule and the criminal
willfully fail to dis-
to.
right
defendant’s
of confrontation?
close evidence inconsistent with the
state’s case ?
2. Was it reversible error for the
impeach
prosecutorial
its
5.
own witness
Was
misconduct
prosecu-
inconsistent
and
statements?
reversible error for the
continually
tor
repeatedly
vi-
theWas
admission into evidence
olate the Code
Re-
of Professional
of four
autopsy pictures
morbid
sponsibility and the American Bar
a blood soaked shirt reversible error
Association’s Minimum Standards
where a defendant
dispute
did not
for Prosecutors ?
the fact that a murder was commit-
necessary
The facts
for a determination
ted and
issue for the
appeal
this matter on
are as follows.
to decide was whether the defendant
men,
Thomas,
Four
Donnell
David Wil-
O.
any
connection with the com-
liams,
(the
Robert Lee Skinner
defendant)
mission of the homicide?
and Paul
Wright
charged
Lawrence
4. Did the court erroneously deny with the crimes
robbery, conspir-
of armed
the defendant
right
present
acy
robbery,
to commit armed
and murder.
motive,
evidence of a State witness’s
lengthy preliminary
After a
hearing on all
bias, and
in testifying
interest
charges,
these
magistrate
held Don-
5. Did the admission into evidence nell Thomas and David Williams to answer
accomplice’s
of an
unsworn,
robbery
out
on the
conspiracy
counts.
court statement made at a time
magistrate
at
time found that
probable
there was not
to hold either
cause
fornia.
When
returned he stated
Wright
the defendant or
approached
the Skinner
him on October 1969
charges
complaint
in the
again
dismissed the
asked
Liquor
him to rob Crown
complaint as to those two
with Donnell
Wright.
Thomas and Paul
defendants.
Later, pursuant
petition by
parte
an ex
day,
McDonald refused. The next
4 Octo-
attorney,
county
ordered
the court
ber
the three
some
showed McDonald
preliminary
pistols
robbery
examination as to defend-
and talked
again.
about
Wright
reopened. Following
ant and
trial, however,
McDonald testified at the
hearing
magistrate
untrue,
that he was
Wright
held the defendant
to answer
jail
at the time the statement was made
complaint. As
on all three counts of the
being
and that he made
after
the statement
petitioned
result defendant and
robbery
told that if he did
seven armed
so
special
court for a writ of
action. This
*4
charges against
him
either
accepted jurisdiction
court
but denied the
dropped or
and
Also his aunt
filed.
relief
on
requested
9 October 1970. Skin-
$1,000
aget
uncle would
if he were
reward
Superior
ner v.
Court of
of Arizona
State
give
a statement
police.
Pima,
County
in
287,
and for
106 Ariz.
testimony
There
Lucius
from one
P.2d
defend-
(1970).
271
Thereafter
Sorrell, an
and her-
admitted user of LSD
Wright’s
ant’s and
cases
severed.
oin
an inmate
Arizona
and
of the
State
charging
Also
I of
Count
the information
Hospital,
Williams, Thomas,
that
Skinner
conspiracy
with
to commit armed
Skinner
Wright
apartment
the
and
came to his
on
robbery was
then went
severed. Skinner
evening
At that time
of October 1969.
in
to trial
the instant matter on Counts II
Thomas
could borrow
Donnell
asked
he
information,
robbery
and III of the
armed
time
gun.
a
that a short
Sorrell stated
murder,
February
on 22
and
1971.
and
Donnell
came back
thereafter
Thomas
charges
incident
from which these
gun.
he
need
told him
did not
the
Liquor
the robbery
stemmed was
of Crown
left his
then stated that as he
Sorrell
in Tucson on 4
Store
October 1969. The
four
apartment a short time later he saw
clerk,
Branch,
Mason
dead
was found
in a direc-
people running
park
the
across
gunshot wounds,
robbery.
a
victim
He
liquor
away
from
store.
dispute
The defendant
did not
Skinner
Don-
people were
four
claimed
these
robbery
place—
and
had taken
murder
Thomas,
Williams,
Wright
Paul
David
nell
issue
he was in-
was whether
testimony was
and defendant. Sorrell’s
Dixon,
felon,
volved. Willie
a convicted
impeached
cross-examination
somewhat
on
that he
testified
and Donnell
saw Skinner
his
prior inconsistent statements
Thomas inside the
a short
liquor store
time
damaged by the
credibility was
place.
robbery
before the murder
took
Dixon,
independent
Willie
witnesses.
He
stated
further
that he saw
Skinner
instance,
Sorrell
saw
testified
Wright at
Paul
a friend’s house
short
stolen car
in a
evening
of October
finger-
time after the
A
crime occurred.
narcot-
apparently under the influence
print belonging
to David Williams
that Sorrell
testified
Dixon further
ics.
cigar
lying
found on a
box
near
de-
apartment
particular
in that
did not live
prose-
ceased
liquor
inside
store.
day
question.
not there on the
and was
cutor,
objection, read
over defendant’s
behalf
his own
took
stand
Skinner
George McDonald,
statement of
day with
spent
that he
and testified
Prison
an inmate of
Arizona
State
stated
He
Thomas, Wright and Williams.
Skinner,
he, Robert
convicted felon that
in front
parked
of them were
that the four
Wright and
Thomas
dis-
Paul
Donnell
left
liquor
when Williams
store
go in
September
robbing
Liquor
going
stating
cussed
Crown
that he
group
testified
liquor store to rob it. Skinner
trip
Cali-
McDonald then made
Wright, and Don-
car
Paul Lawrence
then left the
that he and Paul
Thomas,
you came
on foot.
nell
to wait until
proceeded
home
toward
back from California?
last defendant
was the
Skinner
twice,
“A
Thomas was tried
No.
tried. Donnell
tion,
der with
L.Ed.2d 274
Alabama,
alty.
mand
der
sentencing judge. His case was reversed
Williams
sulting in a
sult of
P.2d
this court in
and was
first
865,
On
Williams
hung jury
plead guilty
No.
appeal
first murder and life im- was prisonment. Wright tried and Paul was No, didn’t. “A guilty manslaughter, found of voluntary “Q speak Liquor I of Crown When robbery, conspiracy. armed and October, 1969,Septem- and in Store gave judge Wright probation. ber, 1969, speaking I am Evidentiary A. As to Matters: Liquor between Crown Store Fourth and Sixth Avenue Grant SUBSTANTIVE USE OF MCDON- Road. ALD’S STATEMENT “A Yes. George At the trial McDonald was ? “Q you And knew where was a called as witness was State. He “A Yes. asked whether he knew that was the “Q you And understand men, the defendant and the three other talking in the place about I was Thomas, Wright, Donnell Paul and David question ? Williams. McDonald stated that he did: Yes, “A I did. Now, “Q going Sep- to the month of Defendant, you Robert “Q Did tell the tember, 1969, day and on the Skinner, that there Lee at time September 6, 1969, you did have oc- working there and a black man was casion to come in contact with this get hurt ? that someone would Defendant, Skinner, Robert Lee Thomas, well, Wright, Paul and Donnell “A I don’t know who Yes— a rob- told that working and have about I never conversation there. bing ? Liquor the Crown Store man that. No,
“A I didn’t. Mason Branch? “Q you Did know Mr. “A Yes. you “Q they date did ask On same at the you knew he “Q And worked ? Liquor to rob Crown Store Liquor ? Store Crown No, they “A didn’t. Yes, “A I did. ****** 4th, didn’t the De- “Q you Then on October “Q did tell And on that same date again pres- in Skinner, fendant Skinner the Defendant Robert Lee only if nec- Thomas, Thomas, Angeley, to be used tective ence of Donnell Liquor essary make the Crown and Paul David Oliver Williams you homicide. Wright, again talk to about helping Liquor them Crown rob 6, 1969,myself Rob- September On Store Wright Don- and Paul ert Skinner Capitan El No, nell Thomas were they “A didn’t. Apartment Capitan El Apartment B. “Q 4th of date, On that same Octo- B, Liquor. talking Crown robbing about ber, 1969, you they did show some said, But ‘No. until I come I Wait pistols ? back from I went to Cali- California.’ No, they didn’t. “A September, I fornia. the 11th On ‘them,’ speak “Q When I I am came I came back on the 1st back. speaking Defendant Robert ap- October and Robert Skinner Skinner, Wright, Lee David Paul proached again me on the 3rd of Octo- Donnell Oliver Thom- Williams again go ber and then he asked me as? him, Donnell Thomas and Paul “A I understand. fellow, possibly another you pistols, Newton, “Q they Did show three rob Newcomb or Crown .22, .25, ‘No;’ him, .22 .32 cali- Liquor .25 Then I told Store. working ber ? man there a black get there and that someone would No, “A they didn’t. they go. hurt. didn’t Then So Satur- 4th, day, they talked October about display any of “Q Did this Defendant again, and this time showed me weapons those on that date? pistols: pistol. There three two No, he “A didn’t. caliber, I .25 or a but .22’s one .32 statement, “Q read Have which *6 to don’t know which one used for identifica- is Exhibit 66 State’s shoot him. ? Yes, “A I have. only testify in if it becomes I will court “Q signed by And the statement was necessary. absolutely you? McDonald, typed George Signed George Yes, it “A was. Muhl, McDonald, L. witnessed W. by And it dictated “Q by Muhl, signed signed by L. Rex W. Yes, “A it was. Lawrence, 285, typed Angeley, by R. 22nd at 69 at at October P.C.S.O. “Q lady typed And dictat- as hours.” ed it? Right.”
“A all refuting further testified McDonald pertinent statements made Detec- court, Previous to this examination the out Angeley tives and Muhl. cross-exami- On presence jury, ar- heard by brought nation defense it was counsel gument that the of counsel and had ruled robbery charges armed out seven George would be statement McDonald against been Mc- which could have filed substantively. prosecutor admitted The exchange his Donald were not filed in for jury then read to Exhibit 66 as State’s jail statement that McDonald was in and follows: at the time made the It was statement. Sergeant Bunting. “To brought refut- out that McDonald had also I, following George many ed occasions McDonald make the statement after Muhl and De- in Deputy
statement he made it—both legal proceedings concerning “(d) other are not hearsay. Statements which Liquor case. A hearsay Crown Store statement is not if— question There is no that the statement “(1) by Prior The statement witness. purposes could be admitted for the of im- hearing declarant at the trial or testifies peachment admittedly hostile wit- subject is con- to cross-examination precise question ness. The before this statement, cerning the and the statement court, however, whether the is testimony, or is inconsistent with his (A) substantively prove could be admitted testimony consistent with his (B) in the facts recited the state- the truth of express implied an or offered to rebut ment. charge against him of recent fabrication admitting motive, the state- court or improper (C) influence or George ment of McDonald into evidence person one of identification of a made ” * * * him; did so on the basis of the United States perceiving after Supreme in California v. Court’s decision And the to that as note rule reads follows: Green, 149, 90 26 L. 399 U.S. S.Ct. “ tradi- (A) Prior inconsistent statements consid- Ed.2d case Green impeach tionally have been admissible constitutionality 1235 of the ered the of § but not as substantive Under evidence. provides California Evidence Code which they rule are substantive evidence. “(e)vidence statement made a^ As has been said Law by the California witness is not made inadmissible respect to a Revision Commission with is inconsist- hearsay rule the statement provision: 1235 admits similar ‘Section testimony hearing his at the ent with be- inconsistent statements of witnesses compliance is offered 770.” Section dangers against cause the which Green, supra, rejected the orthodox view hearsay protect are designed rule is statements such are inadmissible is in largely The declarant nonexistent. the truth of the facts contained therein be- may court and cross- examined they may not have been made under cause regard statements examined oath, may the declarant been sub- many cases, the subject their matter. jected to cross-examination and the likely to inconsistent statement more time could not observe his demeanor at the of the witness true than the contrast, By he made the statement. at made nearer the trial because it was Green, supra, per- rule followed in it relates time matter to which mit the use of inconsist- substantive by the likely and is to be influenced *7 less theory ent the statements on the usual litiga- controversy gave rise to the dangers hearsay largely of are non-existent declarant The trier fact has the tion. of where the witness at trial: testifies demeanor before and can observe his “ * * * subsequent opportunity The testimony he de- nature of his as the for cross-examination at trial with re- explain away incon- nies or tries to the spect present past both versions posi- sistency. Hence, good in as is event, adequate equally make of the is falsity the truth or of tion to determine admissible, as far the as confrontation prior to determine the statement as it is casual, concerned, is clause both falsity inconsistent the truth or of the stranger, and the off-hand remark to a Moreover, testimony given in court. testimony prior carefully recorded at a party provide a with Section 1235 will * * *” 168, 149 at hearing. 399 U.S. protection against the “turn- desirable at 1930 1940. 90 S.Ct. story his changes coat” who witness calling position deprives party is con-
Support for this latter the stand and Proposed Rules his case.’ 801 of the him of evidence tained Rule essential Comment, of for Courts Evidence Code Evidence United States California § The Magistrates: See also McCormick 39. § 142
Advisory
agree
Judge
finds
views
stated.
Committee
these
We
Learned
expressed
convincing
more
than those
Hand:
“
646,
*
People
*
*
Johnson, 68 Cal.2d
v.
indeed
We should
welcome
599,
Cal.Rptr.
(1968).
P.2d 111
help disentangle
us from
efforts
Constitutionality
Advisory
of the
Com-
impede
pur-
archaisms
our
still
upheld
mittee’s
view was
California
suit
truth.”
States Allied
United
Green,
1930, 26
U.S.
90 S.Ct.
Stevedoring Corp.,
“ * * * Where a witness testifies to BY NESS PROSECUTION something different from what Dixon, an Willie inmate Arizona expected but whose Prison, as a was called for witness necessarily prejudicial damag- Dixon testified that a little aft- State. ing calling him party the cause of the p.m. er evening 9:00 on the of the homi- he may party be cross-examined such Wright cide he saw defendant and Paul at for purpose of refreshing his memo- response of a mutual friend. home ry may to former reference be made prosecutor’s question, to the Dixon testi- given by statements made or testimony that David man whose fied Williams purpose such refresh- witness store, fingerprints had been found ing memory aiding and in him to tes- alleged was not with the other two accom- * * * tify to the truth. plices —Skinner —after “However, before such witness can shooting. prosecutor, over defendant’s impeached he must have testified to objections, tried to “refresh witness’ some fact that prejudicial, damaging memory” to the effect that Williams ” * * * party calling him. together. defendant Dixon denied Lane, 236, 242, State v. 211 P. that Williams had been with defendant. 2d 824-825 An extensive discussion between court and Subject presence place decision of took counsel out *8 person court a may jury. hearing as to when After that the witness cross-exam- the impeach witness, had, occasions, ine and previous a we believe that Dixon testified the better rule is to been allow the substantive that David had with defend- Williams statements, use of properly such when ad- ant the court held the was enti- that State mitted, impeach- not transcript them read the of Dixon’s limit for tled to ment only. doing persuaded testimony impeach question. In to him on this we are by futility of requiring previous- the that the trier of It noted had also was that Dixon fact, be or judge jury, ly consider such testified at the trial Paul that of purpose present the impeachment statements for had not de- Williams been only and for the not the truth of facts at the trial fendant friend’s house. The case, that evidence Lane we indicated judge instructed prece surprise and that is a impeachment while condition was to be used cross-examining dent own wit by substantively. be them to one’s not to considered ness, adversity is a condition prejudice cross-exam- or prosecutor, objection, The over precedent impeachment he identified to one’s ined as whether own Dixon to preliminary clearly distinguished at between David Williams defendant’s witness. We right hearing. right that the David Wil- to cross-examine and the Dixon stated impeach. may that party’s liams not the “Davie” he was same Before witness night impeached house the to some had seen at a friend’s must testified Superior prejudicial damaging to The then called fact crime. State that was Birdsall, who, acting calling as a party Ben him. Judge Court prelimi- presided magistrate, had over the In the instant Dixon’s statement allowed nary hearing. Judge Birdsall was that he had not defendant with seen objection Dixon had over preju- David after the crime was Williams prelimi- at the identified David Williams dicial to the case. There was no State’s nary hearing. crime, eye-witness to and the State’s necessarily case was built on careful that a early The common law rule was compilation of circumstantial evidence. by his party calling a witness was “bound fingerprints were found at the Williams’ testimony” question the and could truth scene The needed crime. called the thereof. This is sometimes link David defendant Williams. origins rule and its historical “voucher” prejudice testimony to the of Dixon’s English may primitive have come from the obvious; need to im- case is State’s practice trial in which “oath-takers” peach testimony is We believe clear. party’s particular behind a called stand proper. impeachment procedure was position controversy. any Clayton Penrod, 109 See also State & recent agree We with the 720, 27, September filed 514 P.2d Supreme the United Court States “[wjhatever validity the ‘voucher’ rule may apart enjoyed, have once from PHOTOGRAPHIC EVIDENCE today in the whatever it retains usefulness autopsy photos victim’s process, present civil trial it bears little re- body as those offered at the are the same lationship to the of the criminal realities codefendant, Donnell of defendant’s process.” Mississippi, 410 Chambers v. U. 110 Ariz. Thomas. In State v. Thomas 284, 296, 1038, 1046,35 L.Ed.2d 93 S.Ct. S. day, 2199, filed this 515 P.2d No. admittedly pictures, though we held We have stated: purpose of ex prejudicial, did serve “ * * * It was a rule of both civil illustrating the plaining autopsy calling party law that a common no abuse of paths of the bullets. We find witness was bound into admitting them evidence. discretion under could not circumstances thereof, question truth
heard to IMPROPERLY DEFENDANT WAS strictly adhered to ELICITING rule both FROM PROHIBITED LUCIUS SOR- OF until after EVIDENCE state and federal courts TESTIFY- MOTIVE IN RELL’S century except middle the nineteenth ING? applied party as witnesses which example, compelled call, such for first Lucius Sorrell When *9 ” * ** testify the he claimed called a to State to State as witness a will. date Lane, 241, that to remember the supra, at 211 he was unable
v. 69 Ariz. P.2d surrounding crime. The this at events 144 testimony apparent the It from ruled, initial ina- was judge after Sorrell’s testi- pre- presented, that Lucius Sorrell responsively, the before
bility
that
Donnell Thomas
fied,
defendant and
transcript
not be
the
liminary hearing
could
linked in
fact situation surround-
defendant’s were
the
into evidence because
admitted
in
in-
the facts
the
present
prelim-
ing
crime.
had not been
at the
this
Under
counsel
by
case,
legal theories
there
two
hearing and
defendant
stant
were
inary
therefore
regarding
of Sorrell
right
denied his
to confrontation. which
would be
properly admitted.
again
by the
and Thomas’ statements was
Sorrell was
called
State
able to recall the circumstances
was
conspiracy need
The
that
first
previously
at the
that he had
testified to
charged
proof
not be
in
thereof
order
preliminary hearing. At this time Sorrell
conspiracy
admitted.
has been
Once the
subjected
thorough
was
cross-examina-
conspirator’s extra-judicial
state
shown
jury was
defendant’s
The
counsel.
against
may be
fellow
ments
introduced
the first
time
made aware
between
rule,
hearsay
conspirators
spite
in
time he
Sorrell testified and the second
Robinson,
373,
People
38 Cal.
v.
61 Cal.2d
prosecutor
was visited
890,
Rptr.
(1964),
such
ecutor, have Horton stated: Tuc- “Q you We long Weiss. have lived How “ * * * son? alone will not Misconduct a reversal,
cause as a new trial should years. “A About six granted punish not be counsel his “Q person by name you Do know misdeeds, but has where defendant Lee Skinner Robert ? denied a been fair trial as a result of the grounds “A I to answer on the refuse counsel, actions of we will reverse. it might incriminate me. * * *” Moore, at this request “MR. I would HIRSH: P.2d grant immunity the prosecutor time mind, Keeping this standard we will tes- him to to this witness to enable charges review the raised misconduct concerning any matters tify to the defendant. Arizona Robert Lee Skinner under Revised Statutes. IT ERROR WAS REVERSIBLE FOR grant going I am not “MR. WEISS: THE TO CALL PROSECUTOR him immunity grant him and will not STAND, PAUL TO THE WRIGHT immunity. KNOWING WRIGHT WOULD ‡ THE He ‡ ‡ TAKE FIFTH AMENDMENT? ‡ ‡ person by the name “Q you know a Do told Defendant’s counsel Donnell Thomas opening in his statement that the evidence grounds “A I to answer on the refuse in this case would show defendant and incriminate might me. Wright company of Paul left the David Williams when announced in Williams name “Q person by Do know tention commit crime. Defendant’s of David Williams? Oliver prosecu advised that the counsel the court grounds “A. I to answer on the refuse tor Wright intended to to the stand in call might incriminate me. Wright order to have take Fifth jury. “Q your the date of Calling Amendment attention to front Defend 4, 1969, did occa- ant’s counsel court October asked make Skinner, sion Robert Lee determination whether to with Williams, and Donnell privilege. invoke the Fifth Amendment David Oliver chambers, During argument Thomas ? the fol- *11 that, in grounds upon “A I ‘seemsto rest refuse to answer on the conclusion case, infer- might incriminate me. the circumstances aof ences from a answer witness’ refusal to Salter, “THE let me ask COURT: Mr. weight prosecution’s added critical to the you Apparently you this: are advis- subj case in a form not ect to cross-exami- your ing going client and it is nation, unfairly prejudiced and thus your your client to have advise to defendant.’ Fletcher [footnote omitted]” concerning any- him the Fifth take States, U.S.App.D.C. v. United thing might any in be related 332 F.2d way anything we have before us case, in is that correct ? this Fletcher, In the conviction was reversed correct, that the “MR. That is Your because court determined wit- SALTER: ness’s refusal added critical Honor. answer weight prosecution’s in a case form question. “MR. : more WEISS One subject not to cross-examination and thus ques- “THE Tell me what the COURT: unfairly prejudiced the defendant. The going tion is to be first. by in circumstances considered the court going “MR. I am him WEISS: to ask Fletcher, reversing prejudice, Thomas, he went with Donnell Da- government (1) that the and the court both vid and Robert Lee Oliver Williams knew that the witness would refuse to tes- Skinner and Donnell Thomas to tify upon privilege his claim of under the Liquor area the Crown Store. Amendment; (2) Fifth “THE COURT: No. I think the indi- questions depicted asked a series of which any is
cation
and I will not allow
alleged
entirety;
(3)
in its
offense
that,
questions
further
on
on
based
testimony sought
principal
was the
source
response
Mr.
made.
If
Salter
support
govern-
for the
of the
questions
outside
witness;
re-
(4)
ment’s
the witness’s
area,
I will allow
to ask
in the
fusals to
were not incidents
them.”
him;
testimony given by
course of other
testimony;
gave
(5)
other
the refus-
no
The District of Columbia
has
Circuit
trial;
long
in a
als were not mere incidents
discussed
matter as follows:
part
it was a short trial and the witness’s
question
“The
before this
is wheth-
court
major
proceed-
feature of
er
proceedings involving
the witness
ing.
prejudice
were so unfair
their
States,
In
U.S.
Namet United
defendant on trial as to constitute re-
(1963), the
There was substantive time of trial the whereabouts during trial to link the defendant with court, two were unknown. The women shooting. Although after Williams report, nothing after reading the found regard conduct report Angeley’s Detective to contradict his exemplary, find failure far short of we testimony already had been and im- distinguish between substantive no during the find error. trial. We prejudicial. not peachment evidence is failure correct As to the REPEAT- DID THE PROSECUTOR’S George he had McDonald’s THROUGHOUT ED OBJECTIONS convictions, prior felony no defendant ad THE TRIAL ALL STAGES OF mits that recall he did not McDonald DEFENDANT THE PREJUDICE impeach prior him on his re-examine out, points As complete felony the State tran conviction. We read if brought even had been out find no error script of the and we an induce rights. have served show on defendant’s (cid:127)undue limitations Moore, po- supra. ment McDonald’s statement to why like I did “A He me lice, already brought Yes. asked been a fact which testify. not had seven armed by showing that he out robbery counts McDonald, ing the statement. We dropped as a which were, find no result according to prejudice. giv- “Q [*] Lucius, ton Weiss [*] what else did [*] talk about [*] you Saturday [*] "and [*] Hor- be- your being sides tired when alleged to correct Sor- failure As came court last week? into prosecu- testimony, fact that the rell’s Sorrell, if a deal with Lucius tor had made why “A didn’t and that He said I certainly directly jury, told before, I testified I was testimony: following made obvious it, everything, thinking about going and that he to have Lucius, living right “Q where are *13 lawyer talk to me. now? you “Q Did he do that for
“A Nowhere. “A Yeah. “Q living anywhere? You are not You County Jail, at the living are over “Q you your lawyer? did talk to When you? aren’t “A day. The next living. “A I That is not I am there. you “Q again? Did talk to Mr. Weiss living. am not “A Yeah. understand, staying “Q you are I but “Q there a then about Was discussion there ? you changes that caused to be these “A Yes. County being reduced Jail you? against “Q you charges pend- Did criminal have Well, “A say My like he didn’t it. law- ing against Saturday ? you on yer did. object. “MR. I WEISS: “Q lawyer Your said that?
“Q Saturday of last week? “A Yeah.
“MR. Immaterial and irrele- WEISS: “Q you felony charges He told vant. against going to be you were “THE Overruled. COURT: dropped ? Really,
“A I couldn’t be
I don’t
sure.
“A
they
dropped
He said
could be
I
know.
testified;
dropped
not
but reduced.
“Q
You would have to
and then
“Q
you
Did
talk to Mr. Weiss on Satur-
they
it to
would reduce
a misde-
day?
meanor ?
“A Yeah.
“A That would be better for me to do
that.”
“Q You
you
talked to
Did
him.
talk to
Sunday?
Mr.
onWeiss
was made aware of the deal-
ings
prosecu-
between the
and the
witness
“A Yeah.
They
weigh
determining
tor.
could
“Q
felony charges
Were
told that
credibility
find
witness. We
no
going
to be reduced
mis-
to a
prejudice to the defendant.
demeanor ?
“A He said he would see about it.
THE
VIOLATION OF
ABA
“Q He would see about it.
STANDARDS
“A Yeah.
Defendant next contends that
“Q
[*]
You and
[*]
Mr.
[*]
Weiss,
[*]
did
[*]
have
[*]
was reversible
continually
and repeatedly violate the trial
error
prosecutor
chat
Saturday?
on
judge’s orders, the Code of Professional
damaging
As-
case
and the American Bar
such
Responsibility,
party calling
for Prose-
“If there
Minimum Standards
witness.
sociation’s
surprise
exists no
such
cutors.
evidence.should
at 241 and
admitted.” 69 Ariz.
trial, not
party
entitled to a fair
A
is
P.2d at 824. For an additional discussion
perfect
purpose
appeal
For
one.
States,
Young
subject
of this
see
United
case,
a criminal
we will review misconduct
97 F.2d
A.L.R.
part
to determine
the defendant has been denied
whether
analysis of
Irrespective of whether the
fair trial.
the Code of Professional
While
not, the ma-
is
Lane decision
correct
Responsibility and the Minimum Standards
rule
abandoned the
jority
apparently
helpful in de-
certainly
for Prosecutors are
position
in the
established
termining
com-
whether or not the conduct
allowing
clearer
the admission
becomes
plained
acceptable,
question
of is
be-
prior statements
evidence of
fore us
the trial is
If
whether
fair.
instance
George McDonald.
neither
merely to
fair,
will not
we
reverse
prose-
of McDonald nor Dixon was
punish the
misdeeds
counsel.
testimony given on
surprised at the
cution
Moore, supra.
no
We find
error.
repudiat-
the stand for these witnesses
testimony be-
Judgment and sentence affirmed.
ed their statements or former
*14
case.
being
in this
fore
as a witness
called
HAYS,
J., STRUCKMEYER, J., and
C.
statement
an unsworn
McDonald had
Ap-
KRUCKER,
HERBERT F.
Court of
a
custody
in
and faced with
while he was
peals Judge, concur.
is conceded
felony charges.
of
It
number
robbery
charges
of armed
some seven
NOTE:
LORNA
LOCK-
E.
Justice
he
against
after
McDonald
participate
did
in
de- were not filed
WOOD
not
the
impli-
prosecution
gave a statement to the
termination of this matter.
re-
Later McDonald
cating the defendant.
occa-
pudiated
statement on several
the
HOLOHAN,
(dissenting).
Justice
sions,
aware
prosecutor was well
and the
myself
disagree-
I
in
In two
find
matters
the
repudiated
state-
the
witness
majority
ment
of
in
with the decision
the
ment.
holding
the instant
the
case.
I concur in
and
Young
in
and Lane
Under the rule
matters,
as
the other
matter
but in the
prosecu-
rule, the
American
the traditional
of the introduction of
of
the statement
as
McDonald
tor
not be able to use
would
impeachment
the
of
George McDonald and
the
pointed
Young,
out in
a
As
witness.
Dixon I
Willie
must dissent.
know-
prosecutor
not call the witness
could
impeachment
the
of
In the matter of
testify ac-
not
ing
the
witness
in
the
Arizona
Willie Dixon
rule followed
statement, claim
previous
cording to the
Lane,
set
as
forth in State v.
was
previous
the
surprise,
expect to use
and
disagree
I
been very often has little choice as to its wit- L.Ed.2d 489 U.S. S.Ct. The must nesses. defense Burger points out in Chief Justice accept necessity the case as it is with the holding concurring opinion that the using as have witnesses those who that the California the Court Green case; knowledge of the there- facts of the statutory evidence was not viola- rule of a party fore should be free to use and Fourteenth Amend- Sixth any purpose. out-of-court statement for It must to the Federal Constitution. ments foregoing logical seemingly noted, however, that the Chief Justice position reasonable were it not for the dan- points which Court also out a caution it, gers attendant to and the at issue case accepted: should have certainly highlights dangers. some of the California, statute, recently order to
“Here, secure a statement favorable to that, position party, proposed as Mr. adopted a of evidence does the rule observes, long securing falsity been rule truth has aid WHITE Justice actually leading telling McDonald truth Was advocated commentators. States, concerning the Kentucky and Wis- his statement defendant Two other felony charges dropping of seven mere- consin, past year em- within ly an inducement to secure the truth —or by judicial deci- doctrines braced similar lying? available to rule is yet had has None these States sions. prosecution. as well as the the defense their innova- experience with sufficient position quest aid in Does the academic or not determine whether tions to provides a My fear that it for truth? *15 sound, wise, worka- modification unscrupulous, dishonest, and tool for the 90 S.Ct. (Emphasis supplied.) ble.” tempta- truth. crafty obscure the 1930at 1941-1942. get a favorable unsworn tremen- chosen has from a witness at cost will Despite such caution this Court object get some favorable dous. The being experiment any real need without worded, as the paper, far as version shown. permit, favorable in the most witness will 646, 68 People Johnson, 68 Cal.2d party taking the statement. for the terms prior Cal.Rptr. (1968), 441 P.2d get real longer any need to There is no Supreme California the Green anything he’ll from the version witness— pro- repudiated the Court had Green balks, used, and, if he sign can be Su- posed The California Federal rule. adver- statement can What used. “aca- preme the rule as Court describes witness as turncoat tised the cure reading may plague of the decision be a on the rest position.” A turn out to demic system our of evidence. ac- why the gives a sound basis Johnson