State v. Caldwell
| Decision Date | 21 December 1977 |
| Docket Number | No. 3744,3744 |
| Citation | 573 P.2d 864,117 Ariz. 464 |
| Parties | STATE of Arizona, Appellee, v. Russell Lee CALDWELL, Appellant. |
| Court | Arizona Supreme Court |
Bruce E. Babbitt, Atty. Gen., William J. Schafer, III, Chief Counsel, Criminal Division, Georgia B. Ellexson, Asst. Atty. Gen., Phoenix, for appellee.
Westover, Choules, Shadle & Bowen, P. C. by Allen J. Clark, Yuma, for appellant.
On the evening of July 15, 1976, Harry Seth and Robert Guy arrived at a house occupied by Tucker to purchase some marijuana from three of Tucker's friends, Lester Fenderson, Lex Allen and the appellant. Seth and Guy entered the house at different times where, pursuant to a prearranged plan, they were bound and robbed by Tucker's friends. 1 While there is no evidence that Caldwell did the shooting himself, Guy was murdered later that same evening.
The major pieces of evidence linking appellant to the robbery were testimony by Fenderson that appellant had been a participant and Seth's identification of appellant as one of his assailants.
The appellant was tried and convicted of two counts of robbery, two counts of kidnapping and one count of first degree murder under the felony murder rule. We have jurisdiction of his appeal pursuant to A.R.S. § 13-1711. Additional facts necessary for the resolution of the case will be developed as each issue is discussed.
At one point during the presentation of the state's case to the grand jury, one of the grand jurors, Mrs. Schell, stated, In response to this unsolicited comment, the prosecutor questioned the juror about her feelings, suggesting that she withdraw from consideration of the case if her past experience would influence her vote. The juror stated that it would not. At this point, the grand jury foreman stated "When Rick is talking to the people on the other side of the room, would he please speak up because we cannot hear what he is saying to them over there." After this statement by the foreman, the prosecutor asked the grand juror to repeat what she had told him in order to clear up the possibility that some grand jury members had not heard their dialogue.
After the indictment was returned, the appellant filed a motion for a new finding of probable cause pursuant to Rule 12.9, Arizona Rules of Criminal Procedure. The motion was denied. His first contention on appeal is that the request by the foreman indicates that certain members of the grand jury were unable to hear portions of the evidence presented at the proceedings. Considering the context in which the foreman's question was asked, we are satisfied that the only discussion certain jurors were unable to hear was the above mentioned dialogue between the prosecutor and Mrs. Schell. Since no part of that dialogue constituted testimony offered in support of a determination of probable cause, it is irrelevant that some members of the grand jury did not hear it.
Rule 12.2 of the Arizona Rules of Criminal Procedure provides that grand jurors who are biased in favor of the state shall be disqualified. The appellant's next contention is that the grand juror's statements about "not liking the case" indicate that she was biased in favor of the state. Proof that a juror harbors strong feelings about a case or type of crime does not, without more, demonstrate that the juror is biased. State v. Salazar, 27 Ariz.App. 620, 557 P.2d 552 (1976). Furthermore, as in Salazar, the juror in this case stated that her feelings would not influence her consideration of the evidence. We find that the trial judge did not abuse his discretion in determining that Mrs. Schell was not biased in favor of the state. 2
Appellant further contends that the dialogue between the prosecutor and the grand juror constituted "prejudicial" conduct creating such an " emotional atmosphere" that the grand jury was not able to decide the case "free from sway" within the rule of State v. Good, 10 Ariz.App. 556, 460 P.2d 662 (1969). We cannot agree. The county attorney acted properly when he attempted to determine whether the grand juror could deliberate the case with impartiality after making such a comment. Furthermore, the discussion was a short, isolated incident in these proceedings. It was not calculated by the county attorney to improperly influence the jury's actions. Id. We find that the grand jury acted with impartiality. Since appellant was not denied any substantial procedural right during the grand jury proceedings, the trial judge did not err in denying the motion for a new finding of probable cause. (See State v. Hocker, 113 Ariz. 450, 556 P.2d 784 (1976)).
The appellant alleges that he was denied his right to an impartial jury because up to twenty-four members of the panel from which the jury was selected had been prospective jurors in one or more cases of appellant's codefendants.
The record on appeal does not include the proceedings relating to the impaneling of the jury or the voir dire examination of the prospective jurors. The record before us does indicate, however, that the trial judge conducted voir dire examination of each prospective juror, that counsel for each side was permitted to examine the jurors on any response made to a question asked by the judge, and that the judge made a determination that the panel was not "contaminated" after considering appellant's allegation.
Because of the state of the record, we cannot make an independent determination of how many members of the panel actually had been prospective jurors in other cases. Neither can we determine whether the trial judge's questions and the prospective jurors' responses actually demonstrated the jurors' impartiality. In such cases, we have stated, State v. Bojorquez, 111 Ariz. 549, 553, 535 P.2d 6, 10 (1975). We find that the trial judge did not abuse his discretion in determining that the jury or any of its members could decide the case without bias or partiality. State v. Narten, 99 Ariz. 116, 407 P.2d 81 (1965), cert. denied 384 U.S. 1008, 86 S.Ct. 1985, 16 L.Ed.2d 1021 (1966).
The appellant alleges that the trial judge erroneously denied his motion for a change of venue under Rule 10.3(b) of the Rules of Criminal Procedure. The evening before the jury selection process was begun, The Yuma Daily Sun printed a brief article stating that final arguments had been made that morning in the trial of one of appellant's codefendants. The article also indicated that two other codefendants had already been convicted on all charges. Appellant's name was not mentioned in the article. Appellant contends that because there is a substantial likelihood that many of the prospective jurors read the article, a fair trial could not be had in Yuma. In State v. Richmond, 112 Ariz. 228, 230, 540 P.2d 700, 702 (1975), we stated, We agree with the trial judge that the newspaper account in this case was "factual and restrained" rather than "sensational or inflammatory", Id. and that the story did not operate to deny appellant a fair trial. We find that the court did not abuse its discretion in denying the motion. State v. Ruffin, 110 Ariz. 364, 519 P.2d 63 (1974).
Appellant objects to the fact that the trial court admitted a photograph of the deceased's body into evidence. The trial judge has considerable discretion in admitting or excluding photographs of a murder victim. State v. Thomas, 110 Ariz. 120, 515 P.2d 865 (1973). So long as the photos have some probative value, they are admissible even though the photographs may be inflammatory or may arouse the emotions of the jury. State v. Ferrari, 112 Ariz. 324, 541 P.2d 921 (1975). State v. Thomas, supra. Here, as in Ferrari, the photograph tended to corroborate the state's theory of how and why the homicide was committed, to illustrate and explain testimony and to prove malice aforethought. We find no abuse of discretion.
During the cross examination of Fenderson, one of appellant's codefendants and one of the state's key witnesses, the following exchange took place:
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