State v. Cota

Citation432 P.2d 428,102 Ariz. 416
Decision Date19 October 1967
Docket NumberNo. 1603,1603
PartiesSTATE of Arizona, Appellee, v. Frank COTA, Appellant.
CourtSupreme Court of Arizona

Darrell F. Smith, Atty. Gen., Philip M. Haggerty, Sp. Counsel to the Atty. Gen. and Robert K. Corbin, County Atty., Maricopa County, for appellee State of Arizona.

Lawrence C. Cantor and Theodore Matz, Phoenix, for appellant.

Robert J. Corcoran, Phoenix, Counsel Arizona Civil Liberties Union, amicus curiae.

UDALL, Justice:

The appellant, Frank Encisco Cota, hereinafter referred to as defendant, was charged by information with first degree murder in the death of a state narcotics agent, Roy Singh. One Pedro Flores Valenzuela was a co-defendant. A first trial of the defendant and Valenzuela resulted in a mistrial.

After the second trial had commenced, Valenzuela pled guilty and the trial continued as to defendant. The defendant was subsequently convicted of murder in the first degree and sentenced to the death penalty. On appeal the conviction was reversed. Defendant on retrial was reconvicted and the penalty was set at life-imprisonment. From this conviction the defendant appeals, having used as a basis therefor numerous assignments of error.

Of the assignments of error the ones which necessitated our consideration were related to the basic defense contention that the calling of Valenzuela as a prosecution witness in the defendant's trial with the knowledge of Valenzuela's intention to invoke the privilege against self-incrimination when no valid probative value would be received thereby and, while such action would have a tremendously derogatory effect on the case for the defense, was reversible error in the context of this cause. With this contention we taken exception.

The defense theory is as follows: that in his opening argument the County Attorney frequently mentioned Valenzuela by name and makes reference to three conversations between the defendant and Valenzuela. Throughout the prosecution's case Valenzuela and defendant are joined. The jury was told that defendant and Valenzuela went out with the deceased liquor agent the night of the latter's death, and that Valenzuela and the defendant were seen later that night after the disappearance of the liquor agent. Therefore it is contended that at this point the defendant and Valenzuela had been inextricably associated. Thus the defense argues, when Valenzuela was called as a witness and refused to testify both Valenzuela and Cota would appear guilty to the jury.

The facts show that on taking the witness stand Valenzuela answered several preliminary questions. Then in answer to a number of questions relating to his activities on the night of the narcotics agent's death Valenzuela invoked the Fifth Amendment privilege against self-incrimination. In answer to questions concerning those persons with whom the defendant and Valenzuela were alleged to have kept company on the night of the agent's death Valenzuela invoked the Fifth Amendment. To the questions concerning his residence in Phoenix, the place of the agent's death, during May of 1963, the time of the agent's death, Valenzuela refused to answer on the Fifth Amendment ground as he did when questioned as to his acquaintance with the defendant. With the court sustaining Valenzuela's claim of privilege to this line of questioning, the prosecution then dispensed with any further questions.

The counsel for the defense first objected to the calling of Valenzuela when a hearing in the court's chambers disclosed the prosecutor's intention concerning Valenzuela. Defense counsel then renewed his objection in open court. At the conclusion of Valenzuela's testimony the defense moved for a mistrial, for the reason that the presentation in front of the jury in open court of the former co-defendant. Valenzuela, served only to prejudice the defendant's case rather than to present any probative matter. The trial court declined to sustain the defense objections or to grant the motion for mistrial.

In closing argument the prosecution made the following remarks:

'In the upstairs apartment, there was LeRoy Pino, Frank Cota, Pedro Valenzuela and Roy Singh, the undercover narcotics agent. Roy Singh left the room. He went to another room, an adjoining room. At which time, Cota pointed to Valenzuela and said, 'There is that rat."

'Pino then goes downstairs. A few minutes later who comes downstairs, Ladies and Gentlemen, but the defendant, Frank Cota, Pedro Valenzuela, Who refused to testify, and who else but the person whose picture you saw and who has been identified as Roy Singh, the undercover state narcotics agent.' (Emphasis supplied)

The defense contends that the basic error of calling Valenzuela was further aggravated when combined with the prosecution's comment on the failure of Valenzuela to testify. Such is the defense contention because this allegedly wrongful combination used the circumstance of Valenzuela's refusal as an incriminating fact against the defendant; which argument the defense was unable to rebut since Valenzuela could not be cross-examined to bring out a theory contrary to the inference of a jointly committed crime.

Initially we must state that we feel the law to be that there is no error in calling as a witness a person, involved in the offense with which the accused is charged, who claims his privilege against self-incrimination when there is no obvious reason for his invoking the privilege against self-incrimination and when there was no basis for anticipating a refusal to testify. United States v. Cioffi, 2 Cir., 242 F.2d 473, cert. den. 353 U.S. 975, 77 S.Ct. 1060, 1 L.Ed.2d 1137. See also United States v. Romero, 2 Cir., 249 F.2d 371. In this case however the defense argues that a distinction should be made since the prosecutor was aware of the intention of the witness to invoke the privilege of seif-incrimination; and that here, with knowledge gained in a hearing in chambers, that the witness would invoke the Fifth Amendment, and the court would sustain the claim of privilege, the prosecution called the witness only to elicit the witness' claim of privilege.

There are a number of cases which we feel deserve consideration in determining the propriety of the prosecution's acts and the court's orders concerning the calling of Valenzuela as a witness.

An early California case, People v. Plyler, 121 Cal. 160, 53 P. 553, found that it was not, despite the prejudice to the defendant, error for the prosecution to call as a witness one who was awaiting trial on the same offense although that witness refused to testify on the basis of a claim of the Fifth Amendment and even though there was no reasonable basis for believing that the witness would waive his constitutional rights.

The Supreme Court of Iowa went even further in State v. Snyder, 244 Iowa 1244, 59 N.W.2d 223, where it reasoned that immunity is a personal privilege of the witness and may not be urged by the party against whom the witness is offered. While a witness may refuse to give incriminating testimony, if properly summoned, he must appear and be sworn. The privilege is available to him when he is a witness, and does not excuse him from appearing. Thus if a witness cannot escape appearing and taking the oath by claiming in advance that he will refuse to testify, the party against whom the testimony is offered cannot claim greater rights.

Other states have taken a contrary view to the above cited cases. In Johnson v. State, 158 Tex.Cr.R. 6, 252 S.W.2d 462, concerning their applicable state law, the Texas Court of Criminal Appeals stated that,

'The action of the court, in permitting the state to call a co-defendant to the stand and require him to claim his privilege against self-incrimination after being informed that the witness would decline to answer if so called, has been held to constitute reversible error.'

An even more outstanding Texas case is that of Washburn v. State, 164 Tex.Cr.R. 448, 299 S.W.2d 706, wherein the Texas court found that the calling of a codefendant, under indictment as an accomplice of the accused, requiring him to claim the privilege against self-incrimination in the presence of the jury constituted reversible error under the facts of that case because such refusal could be used as an incriminating fact against the defendant.

DeGesualdo v. People, 147 Colo. 426, 364 P.2d 374, 86 A.L.R.2d 1435, found reversible error in the calling of an alleged accomplice for the purpose of extracting a claim of privilege, the lower court having taken no steps to prevent such and not having given the jury a cautionary instruction to disregard the incident. Therein the court said,

'* * * the question is whether the district attorney can call as a witness an accomplice or co-conspirator (where the accused is charged with conspiracy) in the hope that the accomplice will have suffered a change of heart, or in the alternative so as to get before the jury the fact that he, as least considers that his testimony would be incriminating to him, the accomplice. The effect of such a device is clear. The jury is told of the whereabouts of the missing defendant and is also told that he at least considers it impossible to testify without incriminating himself. Does such a scene create prejudice in the minds of the jury?'

The Colorado Supreme Court in answer to its own question found that the case for the defense was improperly prejudiced. See also, Commonwealth v. Granito, 326 Mass. 494, 95 N.E.2d 539; Rice v. State, 121 Tex.Cr.R. 68, 51 S.W.2d 364; Rice v. State, 123 Tex.Cr.R. 326, 59 S.W.2d 119; McClure v. State, 95 Tex.Cr.R. 53, 251 S.W. 1099; Garland v. State, 51 Tex.Cr.R. 643, 104 S.W. 898.

The U.S. Court of Appeals in United States v. Hiss, 2 Cir., 185 F.2d 822, cert. denied 340 U.S. 948, 71 S.Ct. 532, 95 L.Ed. 683, found no commission of reversible error by the prosecution in calling two persons as witnesses, who had been...

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