State v. Ceja

• Decision Date: 11 February 1976
• Docket Number: No. 3102,3102
• Citation: State v. Ceja, 113 Ariz. 39, 546 P.2d 6 (Ariz. 1976)
• Parties: STATE of Arizona, Appellee, v. Jose Jesus CEJA, Appellant.
• Court: Arizona Supreme Court

Page 6

546 P.2d 6

113 Ariz. 39

STATE of Arizona, Appellee, v. Jose Jesus CEJA, Appellant.

No. 3102.

Supreme Court of Arizona, In Banc.

Feb. 11, 1976.

Bruce E. Babbitt, Atty. Gen., by William J. Schafer III, Chief Counsel, Grove M. Callison, Georgia Butcher Ellexson, Asst. Attys. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender, by John Foreman, H. Allen Gerhardt, Jr., Deputy Public Defenders, Phoenix, for appellant.

STRUCKMEYER, Vice Chief Justice.

On June 30, 1974, Randy Leon and his wife, Linda, were found dead from gunshot wounds in their home in Phoenix, Arizona. The Leons were known narcoties dealers, specializing in the sale of marijuana. The appellant, Jose Jesus Ceja, was thereafter charged with their murder. After trial he was convicted by a jury of both homicides and the death penalty was imposed as punishment. This appeal followed. Judgment of conviction and sentence reversed.

The court instructed the jury on flight, to the effect that it could consider any evidence of the appellant's running away from the scene of the crime with the other evidence in order to infer the appellant's guilt. A flight instruction is ordinarily only warranted where there is evidence that an accused fled from the scene of the offense, as upon pursuit or an attempt to avoid revealing his identity. There was introduced by the prosecution no evidence whatsoever of how or under what circumstances appellant departed from the scene of the crime. Leaving the scene of a crime is, in itself, not of sufficient significance to support an inference of guilt. State v. Salazar, 112 Ariz. 355, 541 P.2d 1157 (1975); State v. Bailey, 107 Ariz. 451, 489 P.2d 261 (1971); State v. Castro, 106 Ariz. 78, 471 P.2d 274 (1970); State v. Rodgers, 103 Ariz. 393, 442 P.2d 840 (1968). The instruction permitted the jurors to infer that there was evidence of flight by appellant. It was plainly erroneous.

The State argues from State v. Douglas, 2 Ariz.App. 178, 407 P.2d 117 (1965), that the instruction on flight was correct. We do not think that because a defendant left the scene of the offense and the instrument with which the offense was committed was never found that these circumstances justify the giving of a flight instruction. Any inference to the contrary in State v. Douglas is overruled.

During the trial, a prosecuting witness, Lucian Haag of the City of Phoenix Crime Laboratory, was permitted to testify over objection that another employee, by the name of Gieszl, of the crime laboratory, made certain ballistic comparisons of bullets from two guns known to have been in appellant's possession and with bullets found at the scene of the crime. The testimony was to the effect that some of the bullets found at the scene of the crime were fired from a revolver owned by Leon and that other bullets, because of their markings, were consistent with having been fired from either of the two guns. This testimony by Haag was patent hearsay.

Nevertheless, the State argues that the evidence was admissible as a business record exception to the hearsay rule under A.R.S. § 12--2262. Assuming that § 12--2262 has application here, a question which we expressly do not decide and to which we express grave reservations, Section B of the statute refers only to the introduction of a business record in evidence. It does not allow a witness to testify as to what the record contains nor thw witness' conclusions about facts contained in the record. One having no independent knowledge cannot establish by oral testimony facts contained in a written record. Mitchell v. Emblade, 80 Ariz. 398, 298 P.2d 1034 (1956). The failure of the court below to restrict the testimony of Lucian Haag was reversible error.

During the course of the investigation, a Phoenix police detective, Eloy Ysasi, talked with appellant's wife. She told Officer Ysasi about certain statements which her husband had made to her. At the trial, counsel for the appellant moved the court to suppress any testimony by Officer Ysasi concerning what had been told to him by the appellant's wife. The deputy county attorney who prosecuted the case stated to the court:

'I will grant Mr. Sullivan that if Mr. Ysasi was to get on the witness stand and say, 'I talked to Mrs. Ceja and she said this, and she said that, and the said something else,' then we would certainly have hearsay. But what we have here is Officer Ysasi testifying: 'I was talking to the defendant. He was telling me certain things. I would then turn to him and say, 'Look, I've talked to your wife, and this is what she told me. Why are you telling me this which is entirely different'.'

This is certainly not hearsay, Your Honor, but a means of interrogation and certainly does not fall within the privilege statute which Your Honor is looking at.'

The principle which precludes one spouse from testifying against the other without the consent of the other is well expressed in Peek v. United States, 321 F.2d 934, 943 (9th Cir. 1963):

'The rule that a husband or wife who seeks to testify In behalf of his or her spouse is disqualified as a witness has been abolished in the federal courts. What remains is the rule that a husband or wife cannot be Compelled to testify Against his or her spouse, and cannot be Permitted to do so unless the other spouse consents. This rule is one of privilege, and the privilege may be waived. Olender v. United States, 9 Cir., 1954, 210 F.2d 795, 42 A.L.R.2d 736. And this privilege includes the prohibition against a third person relating a statement made by one spouse against the other which that spouse would not be allowed to relate if called as a witness.'

In the instant case, Officer Ysasi testified that he was talking to the appellant when he said to him:

'my statement was, 'You told Tammy that Randy pulled a gun on you and you shot two times and he fell to the floor and you heard him groan."

To this, appellant replied:

'Yeah. That was all a lie.'

Officer Ysasi further testified:

'I pointed out that Randy had been shot in the front and that, when I observed him, he was laying face down, and he had been shot in the back, and it appeared as though he was on the floor face down when he was shot, which would be the last time, since he was found that way, and I asked him, 'You know, what about it, Joe? Is it the way I've told it,' and he said yes and nodded his head * * *.'

We think, therefore, that Officer Ysasi's statement concerning what the appellant's wife had told him was not prejudicial and was harmless beyond a reasonable doubt, since all the evidence repudiates any suggestion that the homicide may have been committed in self-defense. Cf. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

The above-quoted question is not objectionable as hearsay for it was not offered to prove the truth of the words spoken, but to prove the conversation between appellant and the police officer.

During his closing argument, the prosecutor stated:

'Let me ask you this question: What evidence has been presented to you? The only evidence that has been presented to you has been presented by the State. You have heard no other evidence. The evidence as presened to you is uncontradicted. That's the reason I say to you: We have proven the case beyond all doubt. You have nothing except what has been presented to you by the State.'

Appellant did not testify in the case. He now contends that the county attorney's argument was an improper comment on the defendant's failure to take the witness stand.

The law in this State is clear.

"* * * It is only objectionable to comment on the failure of defendant personally to testify; a comment that certain facts brought out by the prosecution are uncontradicted is not objectionable. The true test is, was the reference calculated or intended to direct the attention of the jury to the defendant's neglect to avail himself of his right? * * *." State v. Acosta, 101 Ariz. 127, 129, 416 P.2d 560, 562 (1966).

See also, State v. Adair, 106 Ariz. 58, 470 P.2d 671 (1970); State v. Pierson, 102 Ariz. 90, 425 P.2d 115 (1967); Tomaris v. State, 71 Ariz. 147, 224 P.2d 209 (1950); State v. Serna, 69 Ariz. 181, 211 P.2d 455 (1949). At the time of appellant's trial, Rule 8.2(b) of the Arizona Rules of Criminal Procedure, 17 A.R.S., provided that trial was to commence within 60 days of a defendant's arraignment if he was held in custody. Appellant argues that Rule 8.2(b) was violated.

Appellant was arraigned on July 29, 1974. The jury was selected for his trial on November 8, 1974, 102 days after the arraignment. However, on August 28, 1974, the defense filed and the trial court granted a motion for an examination to determine appellant's mental competency under Rule 11, Arizona Rules of Criminal Procedure, 17 A.R.S. Reports from three doctors were submitted to the court, the last being filed on September 26, 1974. On the 27th of September, the court set October 9, 1974 as the date for a hearing, pursuant to Rule 11.5, Arizona Rules of Criminal Procedure, 17 A.R.S., and on that date appellant was found competent to stand trial.

The elapsed time between the filing of the Rule 11 motio...