State v. Corrales

Decision Date15 December 1983
Docket NumberNo. 5153,5153
Citation138 Ariz. 583,676 P.2d 615
PartiesSTATE of Arizona, Appellee, v. Ruben Soza CORRALES, Appellant.
CourtArizona Supreme Court
Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Michael D. Jones, Asst. Attys. Gen., Phoenix, for appellee

James W. Stuehringer, Tucson, for appellant.

FELDMAN, Justice.

Defendant, Ruben Corrales, was convicted of first degree murder, kidnapping, aggravated assault, second degree burglary and theft of property valued at more than $1,000. He was sentenced to life imprisonment for the murder and received the presumptive sentences on the remaining offenses. All sentences were to run concurrently. Defendant appealed his conviction, and also sought post-conviction relief under Rule 32, Ariz.R.Crim.P., 17 A.R.S. We ordered the appeal consolidated with defendant's petition for review of the denial of relief under Rule 32. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. §§ 13-4031 and 13-4123.

The principal contentions advanced by defendant relate to the witness Luis Arias. Defendant contends that the trial court erred in permitting the prosecutor to call Arias, defendant's alleged accomplice, when court and counsel were aware that the accomplice would claim the privilege against self-incrimination and refuse to testify. Arias did refuse to answer any questions, and defendant claims that the trial judge erred even more seriously in permitting the prosecutor to continue to ask Arias certain questions which implied defendant's

guilt. Defendant claims that these procedures violated his sixth amendment right to confrontation (as made applicable to the states by the fourteenth amendment) and also violated his fourteenth amendment right to due process and a fair trial. U.S. Const. amends. VI and XIV.

FACTS

Some time during the early hours of May 16, 1979, the home of the victim, Mary McDiarmid, was burglarized. Ms. McDiarmid, an 81-year-old retired school teacher, was bound and gagged; she died as a result of asphyxiation due to the obstruction of her upper air passage. Several items were taken from her home, including a color television and its stand.

On August 16, 1979, investigating officers located the television at a repair shop. The repair invoice showed that Ruben Corrales had brought the television in for repairs. The police proceeded to the defendant's residence. They were given consent to search defendant's home by defendant's girlfriend. There the police discovered Ms. McDiarmid's television stand, but none of the other items.

A fingerprint check of Corrales' friends revealed that fingerprints found at the McDiarmid residence matched those of Luis Arias. Arias was arrested and confessed to the burglary and murder, implicating defendant. Arias was tried and convicted of the murder of Mary McDiarmid prior to defendant's trial. Defendant's case then proceeded to trial.

The incriminating evidence at defendant's trial was primarily circumstantial. The State produced the television set which defendant had taken in for repairs and identified it as the set belonging to the victim. The State proved Arias' presence in the victim's house and relied heavily on the defendant's connection with him, claiming that defendant had been Arias' accomplice.

The State offered three witnesses who testified that the defendant had made inculpatory statements about the crime. A friend of the defendant testified that defendant told him he had been with Arias outside the victim's house and had helped load the television and a mirror into Arias' truck and had later purchased the television from Arias. The State also called two of the defendant's former cellmates from the Pima County Jail. Both men testified that the defendant had confessed to them on several occasions, telling various stories about his involvement in the death of Mary McDiarmid.

Defendant testified in his own behalf. He said he had been with his girlfriend at the time of the killing, but had later purchased the television and stand from Arias, knowing it had been stolen. The girlfriend supported the alibi claim.

Additional facts will be set forth where necessary in discussion of the legal issues raised by defendant.

PROPRIETY OF CALLING THE ACCOMPLICE AS A WITNESS

The State had little, if any, direct evidence placing defendant in the victim's house. The only direct evidence that existed placed Arias in that house. One of the State's principal contentions was that, if nothing else, defendant had been Arias' accomplice. A felony murder instruction under A.R.S. § 13-1105(A)(2) was sought and given, the State arguing that the defendant had participated in the burglary and kidnapping and was therefore guilty of first degree murder regardless of who had actually done the killing. Since Arias' confession implicated defendant, as soon as Arias had been convicted the State commenced efforts to procure his testimony against defendant. However, Arias' attorney advised counsel and judge that his client would claim the fifth amendment if called to testify. Arias refused to answer any questions on deposition. The State moved to compel Arias to testify at deposition, but the trial judge ruled that Arias could not be compelled to testify until he had been sentenced. After sentencing took place, and before defendant's trial, the State sought an order compelling Arias' Defendant claims that the prosecutor's conduct in calling Arias to the stand with reason to believe that he would claim the privilege against self-incrimination constitutes reversible error under the rule of Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963). In Namet, the Court did indicate that such action by a prosecutor could be error under the theory of prosecutorial misconduct, if it appeared that the government made "a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege." Id. at 186, 83 S.Ct. at 1154-55. A second theory mentioned in Namet is that error is committed in a given case when "inferences from a witness' refusal to answer" add "critical weight" to the state's case and unfairly prejudice the defendant because of his inability to cross-examine a witness who claims the privilege. Id. at 187, 83 S.Ct. at 1155. The constitutional bases of the Namet rules were recognized and applied to the states in Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965).

                testimony at that trial.  Since Arias had been sentenced, the trial judge granted the motion, 1 but commented that "based on everything we have been told by [Arias' attorney] he's not going to testify."   Arias' attorney continued to advise him to claim the privilege against self-incrimination.  When actually called during the trial, Arias took the stand and refused to answer any questions, except for his name and age
                

We have previously addressed the question of whether reversible error is committed when the court allows a prosecutor to call an alleged accomplice who claims the testimonial privilege as a witness. In State v. Cota, 102 Ariz. 416, 432 P.2d 428 (1967), cert. denied, 390 U.S. 1008, 88 S.Ct. 1256, 20 L.Ed.2d 109 (1968), we held that the privilege was a "personal immunity for the witness," that the witness was not disqualified from being called to the stand and that even if the state was aware that the witness would invoke the privilege, it "had the right to show that it was presenting all the relevant evidence ...." Id. 102 Ariz. at 421, 432 P.2d at 433.

The State claims here that it was proper to call Arias under the Cota rule because it had the absolute right to demonstrate to the jury that it was presenting all relevant evidence. We believe it is more accurate to say that the State wished to avoid the danger of a juror making an adverse inference from its failure to call Arias. 2 However it may be phrased, we cannot agree with the State's position. First, although Cota was decided after Namet, it did not consider the Namet rule. Second, we have qualified Cota. In State v. Caldwell, 117 Ariz. 464, 573 P.2d 864 (1977), we discussed the Namet rule and indicated that under particular fact situations, calling the witness to the stand might violate Namet. We held the procedure followed in Caldwell was not such a situation, primarily because in Caldwell the prosecutor was not certain that the accomplice would refuse to answer questions and withdrew the witness as soon as the privilege was invoked. 117 Ariz. at 473, 573 P.2d at 873. Our court of appeals reached a similar conclusion in State v. Blankinship, 127 Ariz. 507, 511, 622 P.2d 66, 70 (App.1980).

In the case at bench, the trial judge made findings of fact and conclusions of law in the Rule 32 proceeding. He ruled that the State had a right to call all relevant witnesses under the Cota rule. We While there is no "absolute right" to call the witness, various purposes may be subserved by requiring the privilege to be invoked in the presence of the jury. One proper purpose is to provide the jury an explanation of the failure to call a witness who ordinarily would be expected to testify in order to prove the charge or establish the defense. See State v. Cota, supra; United States v. Vandetti, 623 F.2d 1144, 1146-47 (6th Cir.1980). The decision to permit counsel to call a witness who has indicated he or she will refuse to testify is ordinarily discretionary with the trial court, which must determine whether the interest of the person calling the witness outweighs the possible prejudice resulting from the inferences the jury may draw from the witness' exercise of the privilege. United States v. Vandetti, supra, n. 1; People v. Berg, 59 N.Y.2d 294, 464 N.Y.S.2d 703, 704-05, 451 N.E.2d 450, 451-52 (1983); cf., State v. McDaniel, supra. 3

think the trial court overstated the law. In addition to the views expressed in State v. Caldwell, supra, we have recently retreated from the Cota rule ...

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