State v. Axley

• Decision Date: 10 May 1982
• Docket Number: No. 5024,5024
• Citation: 132 Ariz. 383,646 P.2d 268
• Parties: STATE of Arizona, Appellee, v. Timothy Brian AXLEY, Appellant.
• Court: Arizona Supreme Court

Page 268

646 P.2d 268

132 Ariz. 383

STATE of Arizona, Appellee, v. Timothy Brian AXLEY, Appellant.

No. 5024.

Supreme Court of Arizona, In Banc.

May 10, 1982.

Robert K. Corbin, Atty. Gen. by William J. Schafer III, Jack Roberts and David R. Cole, Asst. Attys. Gen., Phoenix, for appellee.

Charles K. Ledsky, Phoenix, for appellant.

HAYS, Justice.

A jury found appellant, Timothy Brian Axley, guilty of first degree murder, attempted armed robbery with a deadly weapon and conspiracy to commit armed robbery. He was sentenced to life imprisonment without possibility of parole for 25 years on the murder charge and to concurrent terms of 71/2 and 7 years on the remaining charges.

An appeal was filed pursuant to A.R.S. § 13-4031. In the interim, appellant filed a Motion for Post-Conviction Relief in accordance with 17 A.R.S. Rules of Criminal Procedure, rule 32.1(e), alleging newly discovered evidence. The petition was denied and Axley appealed. We consolidated the petition for review of the post-conviction relief order with the appeal from the convictions and sentences. Jurisdiction of this case is premised upon A.R.S. §§ 13-4031 and 13-4035.

On the evening of July 13, 1979, appellant Axley was driving a yellow Vega with a black racing stripe and the codefendant, ¹ Michael Eugene Sodders, occupied the passenger seat. Sodders directed Axley to a location at 27th Avenue and Camelback Road in Phoenix. While Axley remained in the car, Sodders stepped out of view behind a fence. Sodders then entered the Suntown Laundry, asked for money, and shot the attendant, Teddie Tomlin. She died a short time later.

After the shooting, Sodders ran around the fence and entered the passenger side of the car which immediately departed. A witness, David Tanzy, called police and identified the vehicle. Police Officer Jeffrey Fenton heard an emergency police radio transmission which described the shooting and indicated that the suspects were two males driving in a yellow Vega with a black stripe running from the trunk over the top. Fenton spotted a vehicle fitting the description and after following the car while it made several abrupt lane changes, he stopped behind the vehicle in the parking lot of a restaurant. Several other police cars arrived shortly thereafter. Police searched the Vega and arrested both occupants.

Additional facts pertinent to the questions raised by appellant will be discussed as necessary.

Appellant asserts six arguments on appeal:

1) Introduction of a police officer's testimony regarding what appellant told him after the officer destroyed his handwritten interview notes prejudiced appellant and entitles him to a new trial.

2) Failure of the trial court to grant immunity to a defense witness denied appellant his right to compulsory process of witnesses and his right to a fair trial.

3) The stop-and-search of appellant's vehicle violated the fourth amendment and any evidence obtained should have been suppressed.

4) Appellant was denied his constitutional right to a unanimous jury verdict by the use of a duplicitous indictment.

5) The trial court committed reversible error by not instructing the jury as requested by appellant.

6) The trial court erred in failing to grant a judgment of acquittal.

Following our discussion of the six issues raised by appellant, we will address the trial court's denial of appellant's Motion for Post-Conviction Relief.

DESTRUCTION OF HANDWRITTEN NOTES

Following his arrest, appellant was taken to police headquarters where he agreed to an interview. No tape recording was made of the interview although the interviewer, Officer Marks, did take notes. These handwritten notes were transcribed, and after Marks checked the transcription for accuracy, the notes were destroyed.

At the trial it was established that Officer Marks did not have complete recollection of the appellant's statements made during the interview. The police officer relied on the transcribed notes in responding to the questions of counsel. Appellant maintains he is entitled to a new trial because the prosecution introduced the officer's testimony but failed to produce his handwritten interview notes. ²

Appellant argues that handwritten notes taken by police investigators during an interview with a defendant must be preserved and provided to the defense. Rule 15.1(a)(2), Rules of Criminal Procedure, provides:

"a. Matters Relating to Guilt, Innocence or Punishment. No later than 10 days after the arraignment in Superior Court, the prosecutor shall make available to the defendant for examination and reproduction the following material and information within his possession or control:

....

(2) All statements of the defendant and of any person who will be tried with him;"

The comment to this rule indicates that the term "statement" is to be interpreted in accordance with Rule 15.4(a) and the use of the term under Miranda case law. Rule 15.4(a)(2) states:

"Superceded Notes. Handwritten notes which have been substantially incorporated into a statement shall no longer themselves be considered a statement."

Officer Mark's handwritten summary of Axley's oral communications comprised a statement as defined in Rule 15.4(a)(1)(iii). ³ However, Marks testified that "the typed report accurately depicted what was on the notes." Since the handwritten notes were substantially incorporated into a typewritten statement, the notes themselves could no longer be considered a statement. Hence, they did not need to be made available to the defendant under Rule 15.1.

Appellant maintains, nevertheless, that he was denied his right to discovery under Rule 15.1(a)(1) and (2). He argues that "(t)he judiciary should not depend on the mere conclusions of a police officer who is in the competitive enterprise of ferreting out crime when protecting an individual's constitutional rights." In United States v. Harris, 543 F.2d 1247 (9th Cir. 1976), the Ninth Circuit Court of Appeals reviewed the F.B.I. practice of destroying interview notes once they had been incorporated into a formal report. It held that "(s)ince the routine disposal of potentially producible materials by the FBI amounts to a usurpation of the judicial function of determining what evidence must be produced in a criminal case, ... such original or rough interview notes must be preserved." Id. at 1248. The requirement to preserve rough notes or tape recordings was reiterated in United States v. Well, 572 F.2d 1383 (9th Cir. 1978), and in United States v. Parker, 549 F.2d 1217 (9th Cir.), cert. denied, 430 U.S. 971, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977). However, all of these cases relied on an interpretation of a federal statute, the Jencks Act, and, as such, are not applicable to state criminal trials. United States v. Augenblick, 393 U.S. 348, 356, 89 S.Ct. 528, 533, 21 L.Ed.2d 537 (1969). In State v. Johnson, 122 Ariz. 260, 594 P.2d 514 (1979), we declined to follow the Ninth Circuit and found that destruction of rough interview notes taken by a detective did not result in reversible error.

With respect to the instant case, we find appropriate the language of a recent court of appeals decision:

"The interrogating officer testified that he had taken notes during the interrogation which he used to refresh his memory while preparing a departmental report. After the departmental report was prepared, he reviewed it for accuracy and found it correctly reflected the substance of the interviews with appellant. He then destroyed the notes, which he stated were substantially embodied in his report."

State v. Brooks, 127 Ariz. 130, 135, 618 P.2d 624, 629 (App.1980). The court of appeals concluded, as do we in the present case, that "the trial court did not err in denying appellant's motion to suppress his confession and in allowing the officer to testify at trial." Id. at 136, 618 P.2d at 630. Appellant is not entitled to a new trial.

In concluding that rough notes need not be preserved if substantially incorporated into a written report, we are mindful of the heavy responsibility placed upon the police officer to transcribe accurately the essence of a defendant's statements. In the instant case, the officer was interviewing an accused following the commission of a serious crime. The record indicates that tape recorders were readily available at the interview site. Under these circumstances, we indicate that use of a recording device would enhance the verity of the statement.

REFUSAL TO GRANT IMMUNITY

Axley maintains that the refusal of the prosecutor to grant immunity to the codefendant, Sodders, resulted in the inability to secure the testimony of this essential defense witness. Appellant concludes that this refusal denied him his constitutional right to a fair trial and to the compulsory process of witnesses. Both parties stipulated that if Sodders were called to the witness stand he would state his name and would refuse to answer any other questions based on his fifth-amendment privilege against self-incrimination. Axley asked the court to grant the witness use immunity but his request was denied because, pursuant to A.R.S. § 13-4064, ⁴ the County Attorney did not request immunity for the witness.

In State v. Buchanan, 110 Ariz. 285, 518 P.2d 108 (1974), we were asked to determine whether the then existing immunity statute extended to requests by the defense for immunity from prosecution for witnesses called to testify on behalf of the defense. We concluded:

"(The respondent-defendant was) not prevented from exercising any right guaranteed by the Sixth and Fourteenth Amendments, but the witness called is entitled to the rights provided by the Fifth Amendment. Faced with a claim of the privilege against self-incrimination there is nothing in the Fourteenth Amendment which gives a criminal defendant the right to have immunity granted to the witness."

Id. at 289, 518 P.2d at 112. In fact, "(i)t is a matter of prosecutorial discretion to decide when the public...