State v. Hines, 5099

• Decision Date: 09 September 1981
• Docket Number: No. 5099,5099
• Citation: 130 Ariz. 68,633 P.2d 1384
• Parties: STATE of Arizona, Appellee, v. Donald Ray HINES, Appellant.
• Court: Arizona Supreme Court

Page 1384

633 P.2d 1384

130 Ariz. 68

STATE of Arizona, Appellee, v. Donald Ray HINES, Appellant.

No. 5099.

Supreme Court of Arizona, In Banc.

Sept. 9, 1981.

Robert K. Corbin, Atty. Gen. by William J. Schafer III, Gerald R. Grant, Asst. Attys. Gen., Phoenix, for appellee.

Friedlander & Friedlander by Susan O. Friedlander, Scottsdale, for appellant.

STRUCKMEYER, Chief Justice.

Appellant Donald Ray Hines was convicted by jury of illegal possession of marijuana and appeals. Affirmed.

On the evening of April 6, 1979, Willie Jewel Haynie was allegedly sexually assaulted. The following morning, Haynie accompanied the police to appellant's home where she identified the appellant as one of the persons who had assaulted her. The police then placed the appellant under arrest. Following a search after his arrest, the police found a matchbox containing marijuana in the pocket of his pants. Subsequently, the appellant was tried on charges of kidnapping, sexual assault and possession of marijuana. The jury found appellant guilty of possession of marijuana, but was unable to reach a verdict as to the other asserted offenses.

On appeal, appellant urges that the cross-examination of Susan Robinson, the appellant's chief alibi witness, by the prosecution was improper. Appellant called Susan Robinson, the woman with whom he had been living, to the stand. According to Robinson's testimony, she spent the evening of the alleged assault with the appellant's family. At about 11:15 p.m. that night, the appellant telephoned her at his parents' home, at which time she told him she was ready to leave. He arrived to take her home at about 11:30 p.m., but they did not leave then. First, appellant went to pick up Robinson's brother, Daryl. The appellant returned for Robinson at about 12:00 or 12:30 a.m. As she was leaving the Hines' home, she saw her brothers Daryl and Jimmy sitting in Daryl's car parked alongside of the Hines' house. She also saw a young woman in the car, but failed to recognize her. Robinson and appellant went to where they were living and retired for the evening.

On cross-examination, the prosecutor tried to establish that much of Robinson's testimony was fabricated. He repeatedly called her attention to a prior interview he had had with her on September 13, 1979, and the fact that she had not related to him anything about the telephone call at 11:15 p.m., the appellant's initial visit to his parents' home, or the fact that she had seen her brothers in the company of a woman outside the Hines' residence. He also cross-examined her about what she had told him at the prior interview concerning the vehicle appellant was driving the night of April 6th and about statements she made to an investigating detective the day of appellant's arrest.

Appellant urges that the attempted impeachment was improper. The first impeaching questions of which appellant complains consisted of the prosecutor asking Robinson if she remembered the prior interview of September 13, 1979, and the fact that during that interview she had not said anything to him about the telephone call, the appellant's first visit to his parents' home, or the fact that she had seen her brothers in the company of a woman outside the home of appellant's parents. The question is whether Robinson's September 13, 1979 statements were, in fact, consistent with her testimony at appellant's trial.

At the outset, it should be said that what is being dealt with here is not a direct contradiction between testimony at trial and a previous statement, but, rather, that during a prior interview the witness omitted certain facts to which she later testified at trial. Whether an omission to state a fact constitutes an inconsistency sufficient to discredit a witness depends at least in part upon the circumstances under which the prior statement was made. A prior omission will constitute an inconsistency only where it was made under circumstances rendering it incumbent upon the witness to, or be likely to, state such a fact. See Ball v. State, 43 Ariz. 556, 559, 33 P.2d 601, 602 (1934); Carroll v. Krause, 295 Ill.App. 552, 562, 15 N.E.2d 323, 328 (1938); Asato v. Furtado, 52 Haw. 284, 288, 474 P.2d 288, 292 (1970); Sims v. State, 530 P.2d 1176, 1179-1180 (Wyo. 1975). The rationale for allowing impeachment in these circumstances is that "a failure to assert a fact, when it would have been natural to assert it, amounts in effect to assertion of the non-existence of the fact." ¹ IIIA Wigmore, Evidence § 1042 (Chadbourn rev. 1970). The underlying test as stated in Wigmore, supra is: would it have been natural for the person to make the assertion in question?

Here, during the course of the September 13, 1979 interview, the prosecutor questioned Robinson at some length concerning the events of April 6, 1979. She knew that the prosecutor was interested in her because of her relationship with appellant. It could be inferred that she should have realized she was to tell him everything she knew about the appellant's activities that day. The 11:15 p.m. telephone call, the initial appearance of the appellant at his parents' home and the observation of her brothers outside the appellant's parents' home are all facts which it would have been natural to relate when questioned about appellant's activities on April 6, 1979. Her failure to do so constituted proper grounds for impeachment.

Next, appellant contends that even if the omissions were prior inconsistent statements, impeachment should not have been permitted because the prosecutor failed to lay the proper foundation. It is true that in the past a cross-examiner in attempting to impeach a witness by use of prior inconsistent statements was required to ask the witness whether he made the alleged statement, giving its substance the naming, the place, and the person to whom made. See McCormick, Evidence, § 37 (1972 ed.). However, these foundational requirements have been explicitly abolished by Rule 613(a), Rules of Evidence, 17A A.R.S., which states: "In examining a witness concerning a prior statement made by him, whether written or not, the statement need not be shown nor its contents disclosed to him at that time * * * ." The only requirement is that upon request, the statement must be shown or disclosed to opposing counsel. See 3 Weinstein and Berger, Weinstein's Evidence 631-1 et seq. (1978), and Am.Jur.2d, Federal Rules of Evidence 77 (1975), discussing the provisions of the similar federal rule. Here, the transcript of the relevant interview was made available to defense counsel at her request. Thus, Rule 613(a), Rules of Evidence, 17A A.R.S. was fully complied with.

Appellant contends that even if the prior omissions were inconsistent, and no foundation was necessary, the impeachment was improper because the prosecutor failed to follow up his questions by introducing extrinsic evidence of the omissions. Such impeachment, appellant contends, constitutes impeachment by insinuation and is improper. It has long been the rule that a cross-examiner may not impeach a witness by implying the existence or non-existence of statements or facts which he is not prepared to prove. State v. Hill, 109 Ariz. 93, 95, 505 P.2d 553 (1973). Here, Robinson's testimony was not impeached by insinuation. Impeachment by insinuation occurs when the cross-examiner asks questions for which there is no basis in fact. Robinson admitted that she had previously been asked about the events of April 6, 1979 and at that time had failed to say anything about the telephone call, the fact that appellant had first appeared at his parents' home at about 11:30 p.m. or that she saw her brothers outside the Hines' home. No further proof was necessary. See Udall, Arizona Law of Evidence § 63 (1960); United States v. Hibler, 463 F.2d 455 (9th Cir. 1972). ² As such, any impeachment which the jury might infer was not by insinuation.

A further attempt at impeachment to which appellant objects relates to these questions and answers:

"Q. Going back to the interview in Mrs. Friedlander's Office, do you remember that I was asking you questions about the type of car that Donald Hines was driving that evening?

A. Do I remember you asking me that particular question?

Q. That line of questions.

A. No.

Q. So you don't remember telling me that he was driving Dwight's car that evening?

(Defense Counsel): Your honor, I object because the witness is not being apprised of what questions she was faced with at the time that the first statement was supposed to have been made."

From an examination of the record, we are unable to find anything improper in this line of questioning. Robinson testified on direct examination that appellant was driving Dwight's car when he arrived the first time at 11:30 p.m. She also testified that when they left later at 12:30 a.m. they left in the appellant's yellow and black LTD. On September 13, 1979, she told the prosecutor that the appellant came by his parents' home at 12:30 and that he was driving his brother Dwight's car. She made no mention of the yellow and black LTD. Impeachment requires that the prior statement vary materially from that made at trial. See Rule 19.3, Criminal Rules of Procedure, 17 A.R.S. The comments to Rule 19.3, as stated in footnote 1, supra, indicate that the standard embodied in the rule is theoretically no different from the one used prior to adoption of the rule. In IIIA Wigmore, Evidence § 1040 (Chadbourn rev. 1970), the standard for determining inconsistency is stated as "it is no a mere difference of statement that suffices; nor yet is an absolute oppositeness essential; it is inconsistency which is required * * * As a general principle, it is to be understood that this inconsistency is to be determined, not by individual words or phrases alone, but by the whole impression or effect of what has been said or done." Here, while at first glance the two statements may seem reconcilable, they are in fact inconsistent....