State v. Carlos

Decision Date25 January 2001
Docket NumberNo. 2 CA-CR 99-0546.,2 CA-CR 99-0546.
Citation17 P.3d 118,199 Ariz. 273
PartiesThe STATE of Arizona, Appellee, v. Francisco Feliciano CARLOS, Appellant.
CourtArizona Court of Appeals

Janet Napolitano, Arizona Attorney General by Paul J. McMurdie and Donna J. Lam, Tucson, Attorneys for Appellee.

Michael A. Villarreal, Florence, Attorney for Appellant.

OPINION

BRAMMER, Presiding Judge.

¶ 1 Following a jury trial, appellant Francisco Feliciano Carlos was convicted of dangerous or deadly assault by a prisoner and promoting prison contraband by knowingly making, obtaining, or possessing a "shank," a type of handmade knife. He was sentenced to aggravated, consecutive, 7.5-year prison terms. Carlos argues on appeal that the trial court erred by precluding him from calling as a witness F., the alleged victim of the assault, and by denying his motion for a judgment of acquittal, made pursuant to Rule 20, Ariz.R.Crim.P., 17 A.R.S. Although we find that the evidence presented was sufficient to withstand the Rule 20 motion, because we conclude that the trial court erred by precluding F. from testifying, we reverse Carlos's convictions and sentences. We do not address his additional arguments on appeal.

Facts and Procedural History

¶ 2 We view the evidence and reasonable inferences therefrom in the light most favorable to sustaining the verdicts. State v. Nihiser, 191 Ariz. 199, 953 P.2d 1252 (App. 1997). In August 1997, Carlos was an inmate at the state prison in Florence. A corrections officer, M., was escorting a group of inmates, including F., from the dining hall to their dormitory when he saw Carlos, an inmate not part of the group, "run up and start attacking" F., twice hitting him in the face. Although M. saw a third inmate, Garcia, join the fight and use some type of weapon to beat F., M. could not initially see whether Carlos also had a weapon. However, after breaking up the fight, M. saw that Carlos was, in fact, holding a shank. Another officer also saw both Carlos and Garcia holding shanks after the fight and ordered them to drop the weapons and lie on the ground. An investigator later recovered two shanks from the area where the attack had occurred. F. was treated for stab wounds to his upper torso and face that, according to his doctor, had been made by "a sharp cutting instrument." Neither Carlos nor Garcia sustained any documented injuries.

¶ 3 At Carlos's first trial in June 1999, he was allowed to call F. as a witness, although it was unclear whether F. would agree to testify. The court overruled the state's objection to Carlos's calling F. as a witness, stating Carlos had an "obvious" right to do so. F., however, refused to take the witness's oath, twice responding before the jury, "F___ that," to the court's request that he raise his right hand to be sworn. When asked by the court whether he would "cooperate at all in this courtroom," F. responded, "Nope," and was excused. The record reflects that F. also "turned his back" on the judge and refused to face the attorneys. The court eventually declared a mistrial after the jury was unable to reach a verdict. ¶ 4 The second trial began in September 1999. Carlos filed a pretrial motion in which he stated he intended to call F. as a witness, arguing that his testimony would be highly relevant. The state filed a motion in limine to preclude F. from being called as a witness, arguing that he would "not provide any testimony whatsoever," given his lack of cooperation at the first trial and his refusal to be interviewed since then. The court ruled that Carlos could not call F. as a witness unless he could "first establish that [F. would] cooperate as a witness" at trial.

¶ 5 On the first day of trial, Carlos asked the court to reconsider its ruling and allow him to call F. as a witness, arguing there had been no indication that F. would "invok[e] his Fifth Amendment privilege." The state objected, stating F. "offers nothing of probative value" because "he refuses to even take the oath." Carlos responded that, even if F. again simply refused to take the oath, as he had at the first trial, the jury could still draw significant inferences from his refusal. The court asked Carlos's counsel if she had interviewed F. to determine whether he would cooperate with the court. She answered, "I cannot establish that, no, Your Honor. He refuses to meet with me." The court stated, "I'm not going to have him back in here and say as he did last time a comment about the Court." Carlos argued that it would be unfair to assume that F. would behave the same as he had at the first trial. The court reiterated that Carlos's counsel should have interviewed F. Without conducting a hearing, the court affirmed its previous ruling.

Rule 20 Motion

¶ 6 Carlos contends that there was insufficient evidence from which reasonable jurors could have found him guilty of the charged offenses and that the trial court erred in denying his motion for judgment of acquittal pursuant to Rule 20, Ariz.R.Crim.P. We disagree.

¶ 7 A person commits dangerous or deadly assault by a prisoner if, while incarcerated, he or she commits an assault while using or exhibiting a deadly weapon or dangerous instrument or intentionally or knowingly inflicts serious bodily injury on another. A.R.S. § 13-1206. A person promotes prison contraband if, while incarcerated, he or she knowingly makes, obtains, or possesses contraband, such as a deadly weapon. A.R.S. § 13-2505(A)(3). We review a trial court's denial of a Rule 20 motion for an abuse of discretion and will reverse a conviction only if there is a complete absence of substantial evidence to support the charges. State v. Sullivan, 187 Ariz. 599, 931 P.2d 1109 (App. 1996).

¶ 8 Testimony was presented that Carlos had attacked F. without apparent provocation, that F. had sustained numerous stab wounds, and that Carlos had been seen holding a shank immediately after the attack. No contradictory evidence was presented that Carlos had acted in self-defense when fighting with F. or when acquiring the shank. Thus, there was sufficient evidence to withstand Carlos's motion for a judgment of acquittal on each charge. See Ariz.R.Crim.P. 20(a); Sullivan.

Preclusion of Victim as Witness

¶ 9 Carlos contends that the trial court erred when it precluded him from calling F. as a witness, arguing that F.'s presence was "crucial" to his defense and, therefore, that his Sixth Amendment right to call witnesses and present evidence was violated. U.S. Const. amend. VI; see also Ariz. Const. art. II, § 24 ("In criminal prosecutions, the accused shall have the right ... to have compulsory process to compel the attendance of witnesses in his own behalf."). The state argues that, because F. refused to cooperate with the court at Carlos's first trial, he was likely to be uncooperative again at retrial. According to the state, it would have been pointless for Carlos to have called F. to testify at retrial because he would not have provided any testimony, much less testimony that would have been relevant to the case. Furthermore, even if F. had testified, his testimony would not have been favorable to Carlos because F. was the alleged victim of an assault by Carlos. Therefore, the state argues, the court was not required to subpoena F. to testify unless and until Carlos assured the court that F. would cooperate at retrial. And, if Carlos was unable to do so, the court was not required to hold a hearing to determine if F. intended to cooperate.

¶ 10 We review for an abuse of discretion a trial court's decision on whether to allow witness testimony. State v. Talley, 112 Ariz. 268, 540 P.2d 1249 (1975); State v. McKinley, 157 Ariz. 135, 755 P.2d 440 (App. 1988). We find that the trial court abused its discretion by denying Carlos's request to call F. as a witness, without first determining whether F. would, indeed, refuse to cooperate. We can find no basis for upholding the trial court's ruling. See State v. Nadler, 129 Ariz. 19, 628 P.2d 56 (App.1981) (reviewing court may uphold trial court ruling on any basis if correct result reached).

¶ 11 We first reject the state's assertion that F.'s proposed testimony would have been irrelevant or immaterial. It does not appear that the trial court, even implicitly, ruled that F. could not be called as a witness for this reason. Indeed, the trial court apparently acknowledged the relevancy of F.'s testimony in the first trial when it stated Carlos had an "obvious" right to call F. as a witness. Rather, the record reflects that the court precluded Carlos from calling F. as a witness based on its concern that F. would again be disrespectful to the court and uncooperative. In any event, we agree with the intuitive conclusion the trial court expressed at the first trial that F.'s testimony would be relevant and material because he was the victim. See Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) (error to preclude witness capable of testifying from personal observation).

¶ 12 Next, we find no merit to the state's argument that we may affirm the trial court's ruling because Carlos was unable to show that he was denied favorable evidence when the court precluded him from calling F. as a witness. Although the state argues that a defendant generally can rely on the Compulsory Process Clause to compel the attendance of only those witnesses whose testimony is favorable to the defense, we find no authority requiring a defendant to show that a victim will provide favorable testimony before being permitted to call such a witness to testify.1

¶ 13 The state relies on the Supreme Court's decision in United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982), for the proposition that a defendant's Sixth Amendment right is not violated if the defendant is prevented from calling a witness, unless the defendant can first show that the proposed witness's testimony would be both material and...

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