State v. Narten, 1381

• Decision Date: 28 October 1965
• Docket Number: No. 1381,1381
• Parties: The STATE of Arizona, Appellee, v. Karl Hines NARTEN, Appellant.
• Court: Arizona Supreme Court

Page 81

407 P.2d 81

99 Ariz. 116

The STATE of Arizona, Appellee, v. Karl Hines NARTEN, Appellant.

No. 1381.

Supreme Court of Arizona, In Banc.

Oct. 28, 1965.

Rehearing Denied Nov. 23, 1965.

Robert W. Pickrell, Atty. Gen., Norman E. Green, Pima County Atty., for appellee.

Jack I. Podret and William H. Tinney, Jr., Tucson, for appellant.

BERNSTEIN, Justice.

Appellant, hereinafter called defendant, appeals from a judgment of conviction on two counts: first degree murder upon which the jury recommended and the court assessed the death penalty, and assault with intent to commit murder for which the court imposed life imprisonment.

The facts, viewed to support the verdict of the jury pursuant to our well established rule, are as follows: On January 31, 1963 Rickel Hanson and his fiance went hiking in Reddington Pass, Pima County. As they were returning to their automobile they heard two shots and saw someone standing on a bluff where they had to pass. When they reached that area the person they had seen, later identified as defendant, approached them. Rickel Hanson only had time to say 'Hi' before the defendant fired eight rifle bullets into him. He died instantly. Defendant ordered the fiance down the hill and forced her to disrobe. After fondling her and threatening to kill her if she didn't behave, he let her put on her clothes. He took her to his automobile, drove farther up the mountain and parked whereupon he made her feel his private parts while he tried to kiss her. When she did not respond he became angry, ordered her out of the car, shot her in the head and left. The wound was superficial and the young lady eventually got to a road where she was picked up and taken to a hospital. Defendant was arrested six days later in Mexico.

In defendant's first assignment of error he contends that he was deprived of his right to a preliminary examination, Rule 79, Rules of Criminal Procedure, 17 A.R.S., because his attorneys were denied adequate time to prepare for the hearing and because the magistrate refused to issue subpoenas duces tecum compelling witnesses to provide investigation reports referred to during their testimony.

Two attorneys were appointed on February 11, 1963 to represent defendant. The preliminary examination began February 13, 1963 but testimony was not taken until the 18th at which time only one witness testified. The hearing was recessed until the 25th and continued daily thereafter through the 28th. The state produced 5 witnesses while 15 were called by the defense. The record shows defense counsel appeared to be adequately prepared.

In Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 it was held that the right to counsel means the right to effective counsel and requires that there be a reasonable time between assignment of counsel and trial. See also Anno: 84 A.L.R. 544. In Shaffer v. Territory, 14 Ariz. 329, 127 P. 746, we held that to deny counsel sufficient time to prepare the case is to deny defendant a substantial right. But in Stirling v. State, 38 Ariz. 120, 297 P. 871, we said the trial court did not abuse its discretion in denying a continuance where counsel failed to point out how defendant would be prejudiced unless the time extention was granted. The principle in Stirling is pertinent to the case before us. Furthermore, the time between assignment of counsel and the preliminary examination was not so inordinately brief as to compel the conclusion of prejudice in the absence of a showing thereof. We find the court did not abuse its discretion in denying a continuance.

Defendant further contends that the magistrate erred in denying counsel's requests for subpoenas duces tecum. As its first witness, the state called Officer Guenther who referred to certain photographs he took and turned over to the County Attorney. When the state objected to defense counsel's request that they be produced, the court said it would consider the matter at the noon recess. It was not mentioned again. Officer Ruiz of Sonora, a state's witness, referred to notes he took during a conversation with defendant. The magistrate denied counsel's request for them but the request was withdrawn when the County Attorney provided the information. From the witnesses called by defendant, 4 referred to notes or reports then demanded by counsel. Only one, Officer Smith, actually testified at the superior court trial at which time defense counsel had access to all reports he had mentioned at the preliminary examination. Hence, defendant suffered no actual prejudice in terms of being deprived of effective cross examination or the opportunity of fully developing his defense. Cf. State v. Essman, 98 Ariz. 228, 403 P.2d 540.

Counsel relies upon State v. Ashton, 95 Ariz. 37, 386 P.2d 83 (the so-called Jencks rule) where we held that the trial court committed prejudicial error when it refused to allow defense counsel to examine, for impeachment purposes, a report concerning his written sequence of events at the time of arrest to which the officer testified at trial. We said it was not within our province to inquire into the possibilities for impeaching the officer's testimony from information contained in his report. We could not speculate as to what use might have been made of the narrative report by defense counsel. In this case counsel did have access at the trial to the information he sought and we do not have to speculate concerning the use to which he put it. However, the Ashton decision is inapplicable due to a more fundamental distinction. That case dealt with the defendant's right of cross examination which is constitutionally protected. Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; State v. Holden, 88 Ariz. 43, 352 P.2d 705. In this case, as pointed out above, the only evidence fefense counsel did not obtain during cross examination of the state's witnesses were some photographs. If counsel thought their production was important, he would have demanded that the magistrate rule upon his request. It is not the province of an appellate court to pass upon questions not acted upon by the court from which the appeal is taken. Wharton v. People, 104 Colo. 260, 90 P.2d 615; Matlow v. Matlow, 89 Ariz. 293, 361 P.2d 648.

Counsel argues that the Ashton principle applies to police officers called by defense counsel because they are hostile witnesses. At the preliminary examination counsel made the following statement:

'I aver to the Court, of course, that these witnesses that we are speaking of are hostile witnesses, not hostile in the sense unfriendly to me, but hostile because they are of necessity police officers doing their jobs and they must be considered in the class of hostile witnesses, and as such, I am allowed to lead them and cross examine them as under the Jenckes [sic] Case, and entitled to the reports they have.'

Generally, one may not cross examine his own witness. The court in the exercise of sound discretion may permit one to cross examine his own witness upon an adequate showing of suprise, or that the witness is hostile to the party calling him or unwilling to testify. State of Arizona v. Guerrero, 58 Ariz. 421, 120 P.2d 798; General Petroleum Corp. v. Barker, 77 Ariz. 235, 269 P.2d 729. There was no showing of hostility in this case. Therefore, we need not rule upon defendant's argument that the Ashton principle applies in such a situation.

It is next argued that defendant was denied due process of law by not having a fair trial because two of the 12 petit jurors had opinions of his guilt when the trial started. The pretrial publicity consisted of TV, radio, newspaper and magazine coverage from the date of the homicide, January 31, 1963 until the trial, May 14, 1963, but local coverage diminished almost entirely by the end of March.

The panel of prospecitive jurors was extensively examined by the prosecutor and defense counsel. Of the veniremen examined, approximately one-half knew of the case through publicity before trial. One-third held opinions of defendant's guilt or innocence at the time of voir dire or prior thereto. The jury that tried defendant indicated during voir dire examination their knowledge of the case as follows: eight held no opinions at any time. Two had opinions but shed them by the time of voir dire. One held a qualified opinion at the time of voir dire and another may have, his testimony being confusing.

A prospective juror may be disqualified if he is biased for or against defendant § 21-211, subsec. 4, if he holds an unqualified opinion, Rule 218, or if his opinion will prevent him from acting with entire impartiality Rule 219, subsec. 13. If his opinion is based upon rumor or news reports about the truth of which he has expressed no opinion, he is competent to be a juror if he swears he can fairly render a verdict and the court is satisfied of the truth of such statement. Rule 220. ¹

A prospective juror need not be disqualified unless his opinion is unqualified. Such an opinion is defined as a fixed, settled and abiding conviction as to the guilt or innocence of the defendant. Where the opinion is less strong it is qualified and the court will inquire into its strength and the information upon which it is founded. That the juror will carry an opinion into the jury box or that it will take evidence to remove it are not, in themselves, grounds for disqualification. Leigh v. Territory, 10 Ariz. 129, 85 P. 948. Cf. Stephens v. State, 20 Ariz. 37, 176 P. 579. This court has also held that a disqualifying opinion must be, not merely that, if what the juror has heard is true a certain conclusion as to the guilt or innocence of the defendant necessarily follows, but that what he has heard is true as a matter of fact, and that such belief as to its truth would follow him into the jury box and would be considered by him in determining the verdict he would return. Burnett v. State, 34 Ariz. 129, 268 P. 611. The trial court...