State v. Jessen

• Decision Date: 29 July 1981
• Docket Number: No. 4982,4982
• Citation: 633 P.2d 410,130 Ariz. 1
• Parties: STATE of Arizona, Appellee, v. John Francis JESSEN, Appellant.
• Court: Arizona Supreme Court

Page 410

633 P.2d 410

130 Ariz. 1

STATE of Arizona, Appellee, v. John Francis JESSEN, Appellant.

No. 4982.

Supreme Court of Arizona, In Banc.

July 29, 1981.

Rehearing Denied Sept. 11, 1981.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Barbara A. Jarrett, Asst. Attys. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender by Bruce M. Preston, Deputy Public Defender, Phoenix, for appellant.

STRUCKMEYER, Chief Justice.

Appellant was convicted of first degree murder and sentenced to life imprisonment. He appeals. Reversed.

On August 6, 1979, appellant armed himself with a gun and went to the office of James P. Ameche, Manager of the Phoenix Branch of the Sigmatics Corporation, to resolve a pay dispute. A confrontation occurred which ended when appellant fired five shots, four of which hit Ameche, killing him. Appellant claimed self-defense, asserting he feared the victim because of his size and because he believed Ameche was a violent person and associated with organized crime. Appellant testified he exhibited the gun when it appeared Ameche was going to harm him and that he fired the gun as Ameche turned and went into his office because appellant thought he was going to get a gun. However, no weapon was found in the victim's office. An eyewitness, Melody Sikes, Ameche's secretary, contradicted the appellant's story in significant details.

Appellant complains that the trial court erred in denying his motion for mistrial or to strike Sikes' testimony because of alleged violations of discovery. Appellant's motion was predicated on these additional facts. A few days after the shooting, the prosecutor met with Sikes and reviewed the statement she had given the police the day of the homicide. The prosecutor took a page of notes during this meeting and, although the police report summarizing the eyewitness's statement was disclosed pursuant to Rule 15.1, Arizona Rules of Criminal Procedure, the notes were not disclosed. At appellant's trial, Sikes testified to the meeting with the prosecutor and that he took notes. She also revealed that she had informed the prosecutor at that meeting that the police report did not reflect her understanding of what had occurred with absolute accuracy. She testified:

"Q. You mean (the prosecutor) interviewed you then?

A. Yes. That's when I went over my statement with him, and that's when I reported to him that there were a lot of misconceptions, but I didn't know how important they were.

(The prosecutor) had a copy of the statement I had given to the police. And I had requested seeing that statement because during the period of time I was being interviewed by the officer, I kept having to correct him because he was not, you know, understanding what I was telling him."

Appellant's counsel did not interview this witness before trial. It is now argued that both Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Rule 15.1, Arizona Rules of Criminal Procedure, were violated when appellant was not informed prior to trial that the police report did not reflect with exactness Sikes' understanding of what had occurred, and when the prosecutor failed to disclose the page of notes taken during his interview of Sikes.

Under Brady v. State of Maryland, supra, and its progeny, due process is violated when the prosecution suppresses, after a defense request to disclose, evidence favorable to the defendant which would have affected the jury's determination of guilt. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Talamante v. Romero, 620 F.2d 784, 787-788 (10th Cir. 1980). While Brady is in a sense a rule of discovery, it is more correctly a rule designed to protect the right of a defendant to a fair trial. United States v. Agurs, supra, 427 U.S. at 107-114, 96 S.Ct. at 2399-2402; United States v. Beasley, 576 F.2d 626, 630 (5th Cir. 1978). The Court said in Brady :

"The principle * * * is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused." Brady v. Maryland, supra, 373 U.S. at 87, 83 S.Ct. at 1197.

The test for a Brady violation is whether the undisclosed material would have created a reasonable doubt had it been presented to the jury. United States v. Agurs, supra, 427 U.S. at 112, 96 S.Ct. at 2402; see Talamante v. Romero, supra. When previously undisclosed exculpatory information is revealed at the trial and is presented to the jury, there is no Brady violation. United States v. Alberico, 604 F.2d 1315, 1318-1319 (10th Cir. 1979). Therefore, due process was not violated when the prosecution did not disclose the fact, which was disclosed at trial, that the police report did not reflect Sikes' statement with perfect exactness. This is true even though the pretrial non-disclosure may have affected appellant's trial preparation and strategy. United States v. Agurs, supra, 427 U.S. at 112, n. 20, 96 S.Ct. at 2401, n. 20; United States v. Alberico, supra. We also find no Brady violation in the non-disclosure of the notes since appellant failed to show any otherwise undisclosed information in them which would have affected the jury's verdict.

The disclosure required of the State under Rule 15.1, Arizona Rules of Criminal Procedure, is broader than the requirements of Brady. There may be violations of Rule 15.1, although arguably harmless, where there is no Brady violation. See United States v. Agurs, supra, 427 U.S. at 107-110, 96 S.Ct. at 2399-2400. Rule 15.1 does not require that a verbatim statement of a witness's testimony be given to an accused and the part of Sikes' testimony which was not accurately reflected in the police report was not "material or information which tends to mitigate or negate the defendant's guilt", Rule 15.1(a)(7), Arizona Rules of Criminal Procedure. See State v. Williams, 120 Ariz. 600, 587 P.2d 1177 (1978); State v. Wallen, 114 Ariz. 355, 560 P.2d 1262 (App.1977). Hence, we hold Rule 15.1 was not violated when appellant was not informed that the police report disclosed by the State did not exactly reflect Sikes' understanding of the events.

As to the non-disclosure of the notes of the interview, Rule 15.1(a)(1) requires the State to produce the "names and addresses of all persons whom the prosecutor will call as witnesses in the case-in-chief together with their relevant written or recorded statements * * *." (Emphasis added.) Rule 15.4(a)(1)(iii) defines "statement" to include "a writing containing * * * a summary of a person's oral communications." These notes, while short and predominantly cryptic, do reflect what Sikes said to the prosecutor about the incident. The notes were a statement and should have been disclosed. State v. Reid, 114 Ariz. 16, 29-30, 559 P.2d 136 (1976); State v. Nunez, 23 Ariz.App. 462, 534 P.2d 270 (1975). "To rule otherwise would make a premium out of not taking verbatim statements in order to avoid the disclosure required by the rules." Id. at 463, 534 P.2d 270. (Emphasis in original.)

The choice of sanction or the choice of no sanction for a violation of disclosure is within the discretion of the trial court and will not be reversed on appeal absent a showing of prejudice. State v. Lawrence, 123 Ariz. 301, 599 P.2d 754 (1979). We note that appellant does not contend there was anything in the notes which was not substantially disclosed prior to trial. Nor does he show prejudice by the non-disclosure.

Appellant urges that the prosecution improperly influenced the grand jury which investigated the shooting and the trial judge erred in denying a motion to remand for a redetermination of probable cause. He first complains that at the beginning of the grand jury's session, the jurors were instructed only on first degree murder. The record does not support this. The prosecutor introducing the case referred the grand jury to A.R.S. § 13-1101, which in part defines homicide as "first degree murder, second degree murder, manslaughter or negligent homicide." A.R.S. § 13-1101(2).

Appellant points to the fact that the grand jury was not instructed during the course of the investigation on the elements of different types of homicides or on potential defenses. No statute or rule requires the prosecution to frame instructions for each case under investigation. It is admitted that proper instructions were read to the grand jury a few days prior to the investigation of appellant's case.

It is argued that the prosecution slanted the evidence in favor of the State. As to this, the grand jury's function is not to determine the truth of the charges against an accused, but, rather, to determine whether there is probable cause to believe the accused committed a crime. Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); State v. Baumann, 125 Ariz. 404, 610 P.2d 38 (1980). Hence, the accused has no right to testify. Nor does the prosecution need to present all the evidence, even that which is exculpatory, to the grand jury. Id.; see A.R.S. § 21-412. Courts generally do not concern themselves with the evidence underlying a grand jury indictment. State v. Jacobson, 22 Ariz.App. 128, 524 P.2d 962 (1974).

Appellant complains the prosecutor failed to show the grand jury that Ameche used obscene and offensive language toward appellant and attempted to physically confront him. He also complains that the reason for appellant's visit to Ameche's office was not introduced. These complaints not only fall within an area into which the court will not venture, but in this case are completely unfounded. All of these facts were presented to the grand jury.

It is also argued that when a detective was asked by a grand jury whether appellant might have had a reason to believe Ameche might use violence against appellant, the detective answered, "no", when he knew that appellant believed Ameche was associated with organized crime. But the appellant does not point to anything which would substantiate a...