State v. Jessen
| Citation | 134 Ariz. 458,657 P.2d 871 |
| Decision Date | 23 December 1982 |
| Docket Number | No. 4982-2,4982-2 |
| Parties | STATE of Arizona, Appellee, v. John Francis JESSEN, Appellant. |
| Court | Supreme Court of Arizona |
Ross P. Lee, Maricopa County Public Defender by H. Allen Gerhardt, Deputy Public Defender, Phoenix, for appellant.
This is an appeal from a verdict and judgment of guilt to the crime of manslaughter, A.R.S. § 13-1103, and a sentence of seven and one-half years in prison. A.R.S. § 13-702. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), A.R.S. § 13-4035, and Rule 47(e)(5), Rules of the Supreme Court, 17A A.R.S.
We must answer the following issues on appeal:
1. Was denial of the defendant's request for a voluntariness hearing on his confessions at his second trial error when the voluntariness hearing had been waived at his first trial?
2. Was the court's refusal to allow the defendant to depose the state's witnesses who would not consent to be interviewed prior to his second trial a denial of his constitutional rights to effective assistance of counsel and confrontation of witnesses?
3. Was denial of the defendant's motion to depose the prosecutor and to call the prosecutor as a defense witness an abuse of the court's discretion?
4. Was admission of a lay witness' testimony on the victim's connection with organized crime reversible error?
The facts necessary to determining these issues are as follows. On 6 August 1979 the defendant shot James Ameche in the course of a pay dispute. The defendant claimed self defense, asserting fear of the victim owing to the latter's alleged association with organized crime. The defendant was convicted of first degree murder after a jury trial, and we reversed his conviction in State v. Jessen, 130 Ariz. 1, 633 P.2d 410 (1981), remanding the matter for a new trial.
The defendant received new counsel for his second trial and a number of pretrial motions were made and denied. The first motion was for a voluntariness hearing concerning defendant's statements to the police. The court denied the motion finding that the voluntariness issue had been waived at defendant's first trial. The defendant also moved to depose certain of the state's witnesses who had testified at the first trial but who refused to be interviewed by defendant's new attorney before the second trial. The motion to depose these witnesses was denied.
The prosecutor at both trials had been present during the interrogation of the defendant, along with two detectives, during which questioning the defendant made inculpatory statements. Defendant moved to depose the prosecutor before the second trial, and to call the prosecutor as a witness at that trial. Both motions were denied.
At the trial, the defendant testified that he feared the victim because of his violent nature and "Mafia connections." Ronald Meyers, a business associate of the victim, testified as a state's rebuttal witness. Meyers stated that he formed the opinion that the victim was neither prone to violence or Mafia-connected after the victim's death, based on conversations held with associates in the Phoenix area computer programming industry, of which the victim was a part and in which he was well known. The defendant moved to strike Meyer's testimony as being improper rebuttal and irrelevant. The motion was denied.
On 30 December 1981, the jury found defendant guilty of manslaughter, a class three felony. On 29 January 1982, defendant was sentenced to seven and one-half years imprisonment, and this appeal followed.
Defendant first contends that the trial court's denial of his pretrial request for a hearing on the voluntariness of his inculpatory statements to the police was error. At the first trial, the question of the voluntariness of defendant's statements was waived. At the second trial, the question of voluntariness was raised by defendant's new counsel, and the court refused to order a voluntariness hearing, stating We believe the trial court was in error.
The United States Supreme Court has ruled that "Although the judge need not make formal findings of fact or write an opinion, his conclusion that the confession is voluntary must appear from the record with unmistakable clarity." Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 643, 17 L.Ed.2d 593, 598 (1967). We have made it clear that once raised, the court must make a separate determination of voluntariness of a statement of the defendant, State v. Owen, 96 Ariz. 274, 394 P.2d 206 (1964), and "The purpose of these rulings is to assure that the trial court makes a separate and definite threshold determination of admissibility before allowing the jury to consider the evidence." State v. Dalglish, 131 Ariz. 133, 137, 639 P.2d 323, 327 (1982).
"* * * the trial court must make a specific determination of voluntariness before the statements may be considered by the jury. * * *
The fact that defendant, by not raising the issue, may have waived his right to a voluntariness hearing, see State v. Ferguson, 119 Ariz. 200, 580 P.2d 338 (1978), at the first trial does not discharge the trial court's obligation at the second trial to make a specific determination on the record as to the defendant at the second trial. See Dalglish, supra; A.R.S. § 13-3988(A). The trial court was in error in refusing to grant defendant's motion for a voluntariness hearing.
We need not, however, reverse the conviction. We have in the past, where appropriate, remanded the matter for the limited purpose of holding a hearing on the voluntariness issue alone. State v. Mileham, 100 Ariz. 402, 415 P.2d 104 (1966). We have said that "[e]ach case must stand on its own facts as to whether it should be remanded to the trial judge for a limited hearing to determine whether a confession is voluntary or whether a new trial should be granted." State v. Simoneau, 98 Ariz. 2, 7, 401 P.2d 404, 408 (1965). The facts of this case do not convince us that more than a limited hearing on the voluntariness issue is required.
We therefore remand the case to the Superior Court of Maricopa County for the limited purpose of holding a hearing to determine the voluntariness of the defendant's statements. State v. Mileham, supra.
The defendant contends that the trial court's refusal to allow him to depose several state's witnesses denied him the United States Constitution's Sixth Amendment rights of effective assistance of counsel and confrontation of witnesses.
Admittedly, the defendant was not allowed to depose the witnesses. He did, however, receive copies of all statements that the witnesses made to the police and prosecutor, and had the transcript of the direct and cross-examination testimony given by the witnesses at the defendant's first trial. The defendant was retried on the identical first degree murder charge, and there was no substantial change in the evidence presented by the state between the first and second trials. Rule 15.3, Arizona Rules of Criminal Procedure, 17 A.R.S., states:
The primary interest secured by the Sixth Amendment confrontation clause is the right of cross-examination. State v. Dunlap, 125 Ariz. 104, 608 P.2d 41 (1980). Rule 15.3, supra, is intended to help effectuate this right. We have held that there is no abridgement of this right so long as the accused is afforded the opportunity to cross-examine adverse witnesses at some stage of the proceedings. State v. Head, 91 Ariz. 246, 371 P.2d 599 (1962). Where, as here, each of the state's witnesses has been thoroughly cross-examined by defendant's counsel during the first trial, neither the Sixth Amendment nor the rules of criminal procedure require the taking of depositions. State v. Superior Court, 122 Ariz. 594, 596 P.2d 732 (App.1979). The witness' testimony at the first trial was "more than equivalent to her having testified at a preliminary The trial court did not abuse its discretion in denying the defendant's Rule 15.3 motion to depose the state's witnesses. State v. Superior Court, supra.
hearing." Id. at 596, 596 P.2d at 734. Also, the fact that the new defense counsel at the second trial had no opportunity to personally observe the witness' demeanor is insufficient to require deposition of the witnesses. State v. Superior Court, supra
The defendant next contends that he was entitled to depose the prosecutor under Rule 15.3 and to call him as a witness at his trial, consistent with our constitutional provision for the compulsory attendance of witnesses. See Ariz. Const. art. 2, § 24. Defendant wished to show discrepancies between the state and defendant's versions of the events surrounding the making of defendant's inculpatory statements to the police. Defendant argues that the trial court's failure to order the prosecutor's deposition and attendance as a witness was a constitutional violation requiring reversal of his conviction. We do not agree.
Admittedly the prosecutor was present, along with two police officers, at the time the...
To continue reading
Request your trial
- State v. Lavers
-
State v. Herrera
...1202–03 (App.2011) (concluding limited remand appropriate to determine voluntariness of statements); see also State v. Jessen, 134 Ariz. 458, 461, 657 P.2d 871, 874 (1982) (same). Remand may be appropriate when the trial court is in a better position than the appellate court to clarify whet......
-
State v. Herrera
...1202-03 (App. 2011) (concluding limited remand appropriate to determine voluntariness of statements); see also State v. Jessen, 134 Ariz. 458, 461, 657 P.2d 871, 874 (1982) (same). Remand may be appropriate when the trial court is in a better position than the appellate court to clarify whe......
-
State v. Wonderlin
...testimony about what B. said during their isolated interview "might result in exonerating the defendant." See State v. Jessen, 134 Ariz. 458, 462, 657 P.2d 871, 875 (1982); see also Bagley, 473 U.S. at 676. The court thus abused its discretion in denying Wonderlin's motions to disclose B.'s......