State v. Fleming

Decision Date01 November 1977
Docket NumberNo. 3894,3894
Citation117 Ariz. 122,571 P.2d 268
PartiesThe STATE of Arizona, Appellee, v. Roger Paul FLEMING, Appellant.
CourtArizona Supreme Court

Bruce E. Babbitt, Atty. Gen., by William J. Schafer, III, and Galen H. Wilkes, Asst. Attys. Gen., Phoenix, for appellee.

Bruce A. Barton, Phoenix, for appellant.

CAMERON, Chief Justice.

Defendant, Roger Fleming, was found guilty by a jury of the crime of possession of stolen property. A.R.S. § 13-621. He was adjudged guilty and placed on three years probation. A.R.S. § 13-1645. He appealed from the judgment and we took jurisdiction pursuant to Rule 47(e)(5), Rules of the Supreme Court, 17A A.R.S.

We must answer the following questions:

1. Was there undue restriction of the defendant's right of confrontation by not allowing the defendant to inquire into the prior mental history of the prosecution's key witness, Joseph Clark?

2. Should the prosecution have been prevented from raising Clark's criminal record on direct examination?

3. Was a comment about the criminal activities of defendant's father erroneously admitted?

4. Was there an improper comment upon an exercise of the right to remain silent?

5. Was the jury misled by the instructions on the elements of the crime of possessing stolen property?

6. Do all the asserted errors, when taken together, indicate that defendant was denied a fair trial?

7. Should this court order a new trial based upon evidence obtained after the judgment and sentence?

The facts necessary for a determination of this matter are as follows. In early December 1975, Joseph Clark called defendant at his father's service station where defendant was working. Defendant's father had purchased other stolen property from Clark, and Clark had learned defendant was interested in purchasing a truck. A bargain was reached during the conversation and Clark brought the truck and camper to the service station.

The defendant purchased a pickup truck and camper top from Clark for $1,250. Clark had stolen the truck from the lot of Earnhart Ford in Chandler. The camper had been stolen with another truck from Defendant testified at the trial that he did not become "suspicious" about the camper and truck until after a visit made by Clark and John Heit, an accomplice in the car theft ring, to the service station. The truck and camper were parked at the side of the station so the defendant could work on repainting the camper. At the time of the visit, the places where the decals had been were exposed. There was some dispute about what precisely was said, but Heit did suggest to the defendant that he should move the vehicle to a spot in back of the station. Defendant contended that nothing was said at that time which directly indicated that the vehicle was stolen, and that it was only later that he became concerned that there might be something wrong. He testified that he took the camper to his residence and decided to wait and see if good title came back from the State.

[117 Ariz. 125] the parking lot of a bar in east Phoenix. Before selling the truck and camper to the defendant, Clark had sanded and repainted the camper. The truck was provided with a new serial number obtained from a salvage vehicle purchased by Clark which he used to transfer what appeared to be good title.

Approximately a week later, the police visited defendant in connection with their investigation of Clark's theft ring. They read defendant his Miranda rights and asked him if he had known that the truck and camper had been stolen. Defendant stated that since the title had come back from the State on the truck, he had assumed it was all right but that he had had his suspicions about the camper. He was charged with possession of stolen property in regard to the camper. He was tried and convicted in Maricopa County Superior Court.

DEFENDANT'S RIGHT OF CONFRONTATION

According to the prosecutor, a key State witness, Joseph Clark, was involved in a barroom brawl about four years before this trial which led to his conviction of a high misdemeanor. The event occurred in New York. At the time, Clark had allegedly been depressed over the death of his mother and was intoxicated at the time of the incident. The New York court, as a condition of probation, ordered that Clark enter a mental hospital for diagnosis and treatment if indicated. The defendant entered the hospital but left without signing out after two days because he did not receive any evaluation or treatment. Clark went from the state hospital to the Veteran's Hospital where a one-day psychiatric evaluation was made. While the prosecutor admitted that the witness might be listed as an escapee from the New York hospital, he avowed that there was no warrant or request from New York requesting extradition.

After a hearing on the State's motion in limine, the court took the matter under advisement and later granted the motion. Counsel only argued orally on the motion in limine; Clark was not called to be examined by the State on the factual matters alleged by the State in the motion.

Defendant contends that the trial court unduly restricted his right to confront and cross-examine the witnesses against him when the court granted the State's motion precluding inquiry about Joseph Clark's brief stay in a mental hospital in 1972. We do not agree.

The right of cross-examination is a vital part of the right of confrontation conferred by the Sixth Amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The right does not confer, however, a license to run at large in cross-examination. The right to cross-examination must be kept within "reasonable" bounds and the trial court has discretion to curtail its scope. 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. As evidence of the witness' condition In the instant case, without some indication that Clark continued to have mental problems, we do not see that a two-day stay in an institution at least three years prior to the transaction with the defendant and approximately four years prior to trial, would have any bearing on Clark's credibility at the trial.

[117 Ariz. 126] becomes more remote in time, it has proportionately less bearing on the credibility of the witness.

Defendant also claims that his right to confrontation includes cross-examination of Clark out of the presence of the jury in order to determine whether any connection could be made between his earlier problems and his credibility.

Ordinarily a hearing outside the presence of the jury at which time the witness Clark could be examined on this point would be indicated. The record before us, however, does not show that the defendant asked for such a hearing. Absent a request for a hearing and a showing by the defendant that the cross-examination of Clark would reveal something with a direct bearing on the credibility of his testimony, we do not find any abuse of discretion by the trial court in granting the State's motion.

DRAWING THE STING

Defendant contends that the State should have been barred from raising Clark's prior felony conviction in direct examination. The gist of his argument is that by raising the question of prior convictions on direct, the State foreclosed a more effective attack on Clark's credibility by the defense on cross-examination. He argues that this cut him off completely from a legitimate area of cross-examination thereby violating his right of confrontation. We do not agree.

Arizona has followed the general rule that a person may not impeach his own witnesses absent exceptions to the rule such as surprise or hostility (but see Rule 607, Arizona Rules of Evidence, effective 1 September 1977). Some writers have extended the rule against impeachment of one's own witness to the "drawing of the sting" of prior felony convictions; that is, to ask the witness on direct if he has a prior felony conviction thereby lessening the impact of the prior felony upon the jury when asked on cross-examination. We believe the prohibition against drawing the sting has been honored more in the breach than in the observance. Where we have found examples of drawing the sting, no prejudice has been found and cross-examination has not been limited on the same point. Hadley v. State, 25 Ariz. 23, 212 P. 458 (1923). We agree with the observation of the Court of Appeals in a case wherein the State had obtained an order prohibiting the defense from "drawing the sting":

"We * * * cannot agree that defense counsel are precluded from 'drawing the sting.' We hold that the granting of the in limine motion was error. We recognize that trial judges in Arizona have ruled both ways. * * *." State v. Pearce, 22 Ariz.App. 338, 341, 527 P.2d 297, 300 (1974).

We hold that as an exception to the general rule against impeachment of one's own witness, the State or the defendant may call a witness with a prior felony conviction and "draw the sting" by asking the witness on direct examination about the prior felony conviction.

This does not foreclose any inquiry into the matter on cross-examination. The other party may still inquire into the convictions on cross-examination and bring out details within evidentiary limits.

We find no error.

PRIOR DEALINGS OF DEFENDANT'S FATHER

During direct examination of the witness Clark by the State, the following transpired:

"Q How did it come about that Roger Fleming became your customer for the truck and camper?

"A Well, I sold his father a lot of stolen stuff and a motor home and four-wheel-drive International and I never "MR. BARTON: I would move to strike the preceding testimony. I has no...

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  • State v. McCall
    • United States
    • Supreme Court of Arizona
    • November 9, 1983
    ...a defense attack on a witness' credibility, we will not prohibit it from using such questions on direct examination. State v. Fleming, 117 Ariz. 122, 571 P.2d 268 (1977); State v. Duffy, 124 Ariz. 267, 603 P.2d 538 (App.1979). Constitutionality of A.R.S. § 13-703 Appellant raises two challe......
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    ...that the sanction of preclusion of testimony for disclosure violations is reviewed for an abuse of discretion); State v. Fleming, 117 Ariz. 122, 125, 571 P.2d 268, 271 (1977) (holding that the trial court has the discretion to curtail the scope of cross-examination when appropriate). Conseq......
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    ...we evaluate each of defendant's claimed errors and determine if it, independently, requires reversal. See State v. Fleming, 117 Ariz. 122, 128, 571 P.2d 268, 274 (1977) (cited with approval in State v. Johnson, 122 Ariz. 260, 274, 594 P.2d 514, 528 State v. Prince, 160 Ariz. 268, 274, 772 P......
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    ...that the sanction of preclusion of testimony for disclosure violations is reviewed for an abuse of discretion); State v. Fleming, 117 Ariz. 122, 125, 571 P.2d 268, 271 (1977) (holding that the trial court has the discretion to curtail the scope of cross-examination when appropriate). Conseq......
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