State v. Gertz

• Court: Arizona Court of Appeals
• Writing for the Court: FIDEL
• Citation: State v. Gertz, 186 Ariz. 38, 918 P.2d 1056 (Ariz. App. 1995)
• Decision Date: 28 November 1995
• Docket Number: No. 1,CA-CR,1
• Parties: STATE of Arizona, Appellee, v. Edward Walter GERTZ, Appellant. 93-0624.

Page 1056

918 P.2d 1056

186 Ariz. 38

STATE of Arizona, Appellee, v. Edward Walter GERTZ, Appellant.

No. 1 CA-CR 93-0624.

Court of Appeals of Arizona Division 1, Department A.

Nov. 28, 1995.

Reconsideration Denied March 8, 1996.

Review Denied June 19, 1996.

[186 Ariz. 39] Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, and R. Wayne Ford, Assistant Attorney General, Phoenix, for Appellee.

Craig Mehrens, Phoenix, for Appellant.

OPINION

FIDEL, Presiding Judge.

Edward Walter Gertz ("Defendant") appeals his convictions and sentences for sexual abuse, kidnapping, and fraudulently procuring the administration of a narcotic drug. For reasons that follow, we reverse and remand for a new trial.

I.

In August 1991, Defendant was a cardiologist affiliated with St. Joseph's Hospital in Phoenix when JS, a 16-year-old boy, was admitted to the hospital with an abdominal gunshot wound. Defendant consulted in JS's medical treatment, determined that JS had a heart murmur, and ordered a diagnostic echocardiogram.

A technician performed the echocardiogram on the afternoon of August 21, but could not complete it because the placement of a drain tube impeded a subcostal view of the heart. Witnesses dispute, however, whether a subcostal view was diagnostically required.

JS's drain tube was removed later that day; and around 9:00 p.m., Defendant came to JS's hospital room, stated he had come to take JS for his second echocardiogram, and suggested medication because the process might be painful. JS initially declined medication, but consented when Defendant persisted in his recommendation. Rita MacKnight, JS's nurse, administered Demerol at Defendant's direction. Though she offered to call transportation or help Defendant move JS from his room to the laboratory where the echocardiogram would be performed, Defendant declined help and wheeled JS from the room.

Demerol has a sedative effect, and JS drifted in and out of sleep. JS testified, however, that Defendant never performed the echocardiogram, but instead took him to a vacant examining room where JS awoke once to find Defendant kissing him on the mouth and awoke again to find Defendant fondling his penis.

Defendant and JS returned to JS's hospital room at approximately 10:00 p.m. MacKnight entered the room and found JS seated in his wheelchair with Defendant standing next to him. She described Defendant's demeanor as "anxious," his speech "rather fragmented," and his actions "quick" and "jittery." After Defendant left the room, JS told MacKnight that he had been kissed and fondled by Defendant. MacKnight informed her supervisor, who contacted the hospital security officer, who contacted the Phoenix Police Department.

Defendant maintained that JS's accusations were the product of delirium or falsehood. He was tried before a jury and convicted on one count each of sexual abuse, kidnapping, and fraudulent procurement of the administration of a narcotic drug. The trial court sentenced Defendant to an aggravated 2.5-year prison term for sexual abuse and imposed five years of probation for the other counts.

In a timely appeal, Defendant raises three issues, two of which we reach. He argues that the trial court erred by denying his motion to reopen to prove that JS had filed a civil damages suit against Defendant, and he argues that the trial court erred by permitting the State unlawfully to use his compelled, immunized testimony from a collateral administrative hearing. Because we find reversal warranted on both grounds, we need not reach Defendant's argument that the trial court considered improper factors in sentencing him to an aggravated prison term.

II.

JS testified during the State's case-in-chief. On cross-examination, Defendant's attorney sought to establish that JS was planning to sue Defendant and St. Joseph's Hospital and that his testimony was tailored to serve that purpose:

Q: Let me get back to when I was asking you about this well-dressed gentleman in the gray suit here. That is Wendell Wilson, right?

A: Yes.

Q: He is your, one of your civil lawyers that you hired or your folks have hired, correct?

A: Yes.

Q: And that is in connection with filing some type, possibly, of a lawsuit in this matter, correct?

A: Well, we haven't talked about filing a lawsuit or anything.

Q: I see. And the other lawyer that was here earlier, Kevin Keenan is from another law firm; he is another possible civil lawyer for you?

A: Well, I met him.

(Emphasis added.) On redirect examination, the prosecutor asked JS when he first met Mr. Wilson, and JS answered that he met Wilson "[a] week after, a few days after [being released from the hospital], I am not really sure."

In closing arguments the lawyers debated JS's motive to lie. The prosecutor stated:

[C]ertain questions were asked, trying to infer that [JS] had some motive for coming in here and lying to you about what happened.

I would submit there's no evidence in this case of that, and basically the reason is that [JS's] description of these events, which he gave on the night of August 21st to Rita MacKnight and John Kerr, ha[s] not changed one iota in the past year and a half.

Defendant's counsel responded:

[JS is] here today without his lawyer.

You recall that when I asked [JS] who that nicely-dressed gentleman was in the first row that he brought to court with him on two occasions [Wendell Wilson], that he said it was one of his civil lawyers that he and the family had hired. And then he identified Kevin Keenan as another possible civil lawyer who's been in the courtroom. And then he said, We haven't talked about filing a lawsuit or anything.

Is that credible?

(Emphasis added.) Defendant's counsel reminded the jury that Wilson had been hired a week after JS left the hospital and that Wilson had given JS "a list of what happened that night to go over" before JS had testified on earlier occasions. He asked the jury to consider,

Now, why is Mr. Wilson, a civil attorney, giving [JS] a list of what happened if his story is, as [the prosecutor] would tell you, is so consistent? Why does he need to give him a list?

In rebuttal, the prosecutor returned to the point, stating:

The defense in this case has been boiled down to three things: Either [JS] was experiencing a short duration of being crazy and imagining what happened--if you do not accept that, that then he's lying about it because of alleged motive of which there's no evidence, that he wants to sue the defendant and recover some vast sum of money.

(Emphasis added.)

After closing arguments but before jury deliberations, outside the presence of the jury, a process server delivered a summons and complaint ¹ to Defendant, naming him as a defendant in a civil damages suit brought by JS. Defendant sought to reopen for the limited purpose of testifying that JS had sued him and to offer the summons and complaint as evidence. The trial court denied the motion, and Defendant argues that the trial court erred.

We review this ruling for abuse of discretion. State v. Taylor, 112 Ariz. 68, 83, 537 P.2d 938, 953 (1975). The State characterizes evidence of the lawsuit as extrinsic impeachment evidence that the trial court correctly excluded as collateral to the issue of guilt. ² If the proffered evidence indeed had no purpose other than impeachment by contradiction, we would uphold the trial court's ruling as consistent with Rule 608(b). See State v. Hill, 174 Ariz. 313, 325, 848 P.2d 1375, 1387 (1993) ("Evidence is collateral if it could not properly be offered for any purpose independent of the contradiction."); Delozier v. Evans, 158 Ariz. 490, 494-95, 763 P.2d 986, 990-91 (App.1988) (upholding exclusion of extrinsic evidence offered to impeach on collateral matter).

Defendant, however, did not offer evidence of the lawsuit merely to impeach JS's trial testimony. Rather, Defendant sought affirmatively to prove that JS was motivated by financial interest in an impending civil damages suit.

An effort to impeach on a collateral matter differs significantly from an effort to affirmatively prove motive or bias. Rule 608(b) restricts the former; the sixth amendment protects the latter. The Supreme Court stated in Davis v. Alaska that "the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." 415 U.S. 308, 316-17, 94 S.Ct. 1105, 1110-11, 39 L.Ed.2d 347 (1974); see also United States v. Gambler, 662 F.2d 834, 837 (D.C.Cir.1981) ("[T]he trial court should allow cross-examination and the airing of evidence with respect to a witness's pending, or even contemplated, suit against the defendant."); United States v. Stamper, 766 F.Supp. 1396, 1400 (W.D.N.C.1991) ("[T]o confront the complainant effectively, to elucidate the facts and legal issues here in question fully, and to present a defense in a constitutionally viable trial, Defendant must be allowed to set before the jury the proffered evidence of ulterior motives of the complainant."), aff'd, 959 F.2d 231 (4th Cir.1992).

Arizona case law likewise recognizes that evidence of a civil action by a complaining witness against the defendant, arising from the same transaction that is the subject of the prosecution, has "a direct bearing on the credibility of the witness to show bias and prejudice, as well as the witness' relationship to the case." State v. Burris, 131 Ariz. 563, 567, 643 P.2d 8, 12 (App.1982); accord State v. Salazar, 146 Ariz. 547, 549-50, 707 P.2d 951, 953-54 (App.1985); State v. McMurtry, 10 Ariz.App. 344, 345, 458 P.2d 964, 965 (1969); State v. Taylor, 9 Ariz.App. 290, 294, 451 P.2d 648, 652 (1969).

The State argues alternatively that the excluded evidence, even if admissible to prove motive or bias, was cumulative and non-prejudicial "[b]ecause [Defendant] did introduce evidence of the possibility of a civil lawsuit," because he cross-examined JS freely concerning his relationship...