State v. Clark

Decision Date25 July 1980
Docket NumberNo. 4346,4346
Citation126 Ariz. 428,616 P.2d 888
PartiesSTATE of Arizona, Appellee, v. James Dean CLARK, Appellant.
CourtArizona Supreme Court

Robert K. Corbin, Atty. Gen. by William J. Schafer III, Chief Counsel, Criminal Division by Jessica L. Gifford, Asst. Atty. Gen., Phoenix, for appellee.

Kerley & Defrancesco, by James K. Kerley, Bisbee, for appellant.

HOLOHAN, Vice Chief Justice.

Appellant, James Dean Clark, was convicted after a trial by a jury of four counts of first-degree murder. He was sentenced to death on each count. A timely appeal was filed. We have jurisdiction pursuant to A.R.S. § 13-4031.

The essential facts are that for a year prior to the murders appellant worked as a wrangler at a dude ranch owned by Mr. and Mrs. Charles Thumm located near Elfrida, Arizona. In the early morning hours of December 4, 1977, appellant murdered four persons. Beginning in the wranglers' quarters, he stabbed to death an older wrangler who was "passed out" in his bed and then shot to death a young wrangler as he slept in his sleeping bag. Appellant next picked up a .357 Magnum from the young wrangler's room, walked from the quarters to the Thumms' house and shot to death both Mr. and Mrs. Thumm. After slashing the tires on all vehicles remaining at the ranch, appellant fled the area in the Thumms' station wagon, taking with him rings and credit cards belonging to the Thumms, guns, including those used in the murders, and a saddle. He was apprehended a few days later in El Paso, Texas.

The issues on appeal are:

1) Did the trial court err in questioning prospective jurors about their views on capital punishment?

2) Did the trial court erroneously deny appellant's request to tape-record the trial?

3) Was appellant's right to confront witnesses violated by John Doe's appearance at the preliminary hearing or at trial?

4) Was appellant denied the right to counsel when he made statements without the presence of counsel?

5) Were photographs of the victims erroneously admitted?

6) Did the trial court err in admitting into evidence a bloodstained pillow? 7) Did the trial court err in refusing to grant a mistrial because the courtroom door was locked for a short time?

8) Did the trial court err in refusing a curative instruction regarding a lapse of time between appellant's arrest and his exculpatory John Doe murder story?

9) Were the jury instructions including a flight instruction erroneous?

10) Is the death penalty unconstitutional, either per se, as violative of the Eighth Amendment or because it excludes the jury from participation?

11) Is the holding of this court in State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978) correct?

12) Did the trial court err in finding three aggravating circumstances and no mitigating circumstances?

Appellant asserts that it was a violation of his right to an impartial jury for the trial court to ask prospective jurors if their opinions on capital punishment would prevent them from making a fair and impartial decision as to appellant's guilt or innocence. He points out that the Arizona system in capital cases is a bifurcated proceeding in which the jury decides guilt or innocence but has no role in deciding the sentence; therefore, he argues that the issue of capital punishment is irrelevant to the jury's consideration and should not be asked.

In State v. Ramirez, 116 Ariz. 259, 569 P.2d 201 (1977), we resolved the issue contrary to the appellant's position. In Ramirez, we ruled that although veniremen may recognize that the jury does not impose the sentence under Arizona law, the prosecution may inquire whether their attitude toward the death penalty would prevent them from making an impartial decision. In this case, no prospective juror was struck for cause simply because of his or her scruples about the death penalty. The trial court carefully followed the mandates of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), in conducting the voir dire of the jury. See also Adams v. Texas, --- U.S. ----, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980) (48LW4869). The voir dire and selection of the jury was carried out in conformity with constitutional standards.

Appellant alleges that he was denied the effective assistance of counsel by the trial court's denial of his request to tape-record the proceedings. Appellant cites 67 A.L.R.3d 1013 and Davey v. City of Atlanta, 130 Ga.App. 687, 204 S.E.2d 322 (1974), as support for this proposition. However, Davey, supra, involved a non-record court. Denial of permission to tape the proceedings was not error where an official court reporter was present who could have provided partial transcripts if requested. The trial court's denial of permission to tape the proceedings was not error under the circumstances.

Appellant contends that his right to confront witnesses against him, guaranteed by the Sixth Amendment to the United States Constitution, was denied both at the preliminary hearing and at the trial. The specific instances which form appellant's complaint involve the appearance of John Doe, a witness for the state at the preliminary hearing and later at the trial. The witness did not give his true name or address at the preliminary hearing or at trial. At the preliminary hearing the witness wore a ski mask to hide his identity, but he did remove the mask briefly so that appellant could see him.

Based on Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968) and Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931), appellant maintains that the trial court committed error by not requiring a new preliminary hearing and by restricting the defense at trial from cross-examining the witness to determine his name and address.

The limitation on cross-examination at the preliminary hearing was not error. The appellant was acquainted with the witness, and he had occasion to be with him in El Paso. The full details of the witness' activities prior to meeting the appellant may not have been known, but the development of such information was a subject more properly covered by the discovery procedure of the Criminal Rules rather than the preliminary hearing. See Rule 15, Rules of Criminal Procedure.

A greater restriction upon the examination of witnesses is permissible at the preliminary examination stage of the criminal process because the preliminary hearing is limited to the determination of probable cause to hold the defendant to answer for an offense. It is not the purpose of the preliminary examination to provide a means for the discovery of evidence. State v. Bojorquez, 111 Ariz. 549, 535 P.2d 6 (1975). The Rules of Criminal Procedure provide a separate and adequate means for the defense to discover the evidence.

Restriction on cross-examination at trial is another matter. In State v. Fleming, 117 Ariz. 122, 125, 571 P.2d 268, 271 (1977), we stated:

"Distinctions between reasonable limitations on the scope of cross-examination and unnecessary restrictions on the right to confront witnesses are, however, difficult to draw and must be considered on a case-by-case basis. The test is whether the defendant has been denied the opportunity of presenting to the trier of fact information which bears either on the issues in the case or on the credibility of the witness."

Prior to the trial of this case the court ordered that the prosecution disclose to defense counsel John Doe's name and felony record. On the day that John Doe was to testify, the trial court conducted proceedings in chambers with both the prosecutor and defense counsel present. During this hearing John Doe disclosed his real name and the name of the religious retreat where he was currently living. The trial court inquired into the nature of the threat to the personal safety of John Doe, determined the threat was real and ruled, over defense counsel's objection, that John Doe's real name not be revealed to the jury.

At trial, John Doe's address was given as a religious retreat in El Paso. He acknowledged his prior felonies and his activities as a paid Drug Enforcement Administration informer, heroin addict, procurer of prostitutes and con artist raising money to support his heroin habit.

John Doe's testimony against the appellant dealt with their meeting in El Paso, their activities there, and the statement made by appellant concerning the shooting of Charles Thumm. The defense counsel extensively cross-examined John Doe and developed the impeachment material which had been disclosed.

The record of this case is unlike that in either Alford or Smith. The defense was not denied the opportunity to develop the information necessary to attack the credibility of the witness. The defense was not denied access to the true identity of the witness. The withholding of the witness' true name was limited to the jury and the public. Justice White in his concurring opinion in Smith specifically recognized as an exception "inquiries which tend to endanger the personal safety of the witness." 390 U.S. at 133-34, 88 S.Ct. at 751, and courts have repeatedly recognized that precautionary measures must be taken when a witness' safety is at stake. See, e. g., U.S. v. Herbert, 502 F.2d 890 (10th Cir. 1974), cert. denied 420 U.S. 931, 95 S.Ct. 1134, 43 L.Ed.2d 403; U.S. v. Smaldone, 484 F.2d 311 (10th Cir. 1973), cert. denied 415 U.S. 915, 94 S.Ct. 1411, 39 L.Ed.2d 469; U.S. v. Saletko, 452 F.2d 193 (7th Cir. 1971), cert. denied 405 U.S. 1040, 92 S.Ct. 1311, 31 L.Ed.2d 581.

State v. Baumann, 125 Ariz. 404, 610 P.2d 38 (1980), presented an analogous situation to the case at bar in that the witness' current address was withheld over objection. In Baumann we upheld the trial court's exercise of discretion because the witness had been thoroughly cross-examined on every aspect relating to the case and to his credibility.

As in Baumann, appellant took advantage of the ample opportunities...

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