State v. Johnson, 4151
| Decision Date | 04 April 1979 |
| Docket Number | No. 4151,4151 |
| Parties | STATE of Arizona, Appellee, v. Andrew JOHNSON, Travis Boyd Williams and Ronald White, Appellants. |
| Court | Arizona Supreme Court |
Bruce E. Babbitt, Former Atty. Gen., John A. LaSota, Jr., Former Atty. Gen., Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Crane McClennen, Asst. Attys. Gen., Phoenix, for appellee.
Henry L. Zalut, Phoenix, for appellant Johnson.
Peter N. Serino, Phoenix, for appellant Williams.
Gregory R. Jordan, Phoenix, for appellant White.
Appellants, Andrew Johnson, Travis Boyd Williams, and Ronald White, inmates of Arizona State Prison, were tried and found guilty of obstructing a criminal investigation, a violation of A.R.S. § 13-541.01. They were each sentenced to not less than four nor more than five years in prison; sentences to commence upon termination of their present terms of commitment. They appeal. We have jurisdiction pursuant to Rule 47(e)(5), Rules of the Supreme Court, 17A A.R.S.
On August 5, 1976, Reserve Deputy Ray Newby of the Maricopa County Sheriff's Department, pursuant to an order of Judge C. Kimball Rose, proceeded to the Arizona State Prison where he obtained custody of Charles W. Robinson, Donald Helgeson, Ronald White, Travis B. Williams, Andrew Johnson, and Paul Espinoza. Robinson, Helgeson, White, Williams, and Johnson were to be taken to the Maricopa County Jail where they were to be held pending their testimony in a murder trial. The record does not disclose why Espinoza was to be taken to the Maricopa County Jail.
Before leaving for Phoenix, the six men were handcuffed together and were placed in the enclosed rear section of a two and one-half ton van driven by Newby. When the prisoners were removed at the Maricopa County Jail in Phoenix, Arizona, Robinson had bruises and abrasions on his upper body which were not present when he was placed in the van at Florence. Newby noticed that Robinson's t-shirt, which was clean when he entered the van, was soiled. Helgeson suffered similar but less extreme changes.
Robinson told authorities, and later testified at trial, that on entering the van White began questioning Helgeson about why he was being returned to Phoenix. Helgeson answered that he didn't know, but thought it was to testify in the murder trial of Leroy McCowan. Shortly afterward, White, with the assistance of Williams and Johnson, kicked and choked Helgeson and forced him to perform an act of fellatio.
Afterward, White asked Robinson questions which were similar to those which had been asked Helgeson. They were particularly interested in how Robinson became involved in the McCowan case. Robinson's answers did not satisfy appellants, so they attacked him, forced him to the floor of the van and stood on his neck until he was unconscious. When Robinson regained consciousness, he was asked if it was still his intention to testify in the McCowan case, to which he replied, no. Thereafter more discussion ensued, followed by another attack during which Robinson was rendered unconscious as in the first attack. Appellants were subsequently indicted and convicted of obstruction of justice.
From an examination of the appellants' position, we have concluded that there are ten issues presented for decision.
A. Was the agreement between appellant Johnson, his counsel and the prosecutor breached and, if so, is appellant entitled to a new trial?
B. Was the cross-examination of appellant Johnson concerning his confrontation by detectives of the Maricopa County Sheriff's Department a denial
[122 Ariz. 265] of the right against self-incrimination?
C. Was the conduct of the prosecutor during trial sufficient basis for granting a reversal of appellants' conviction?
D. Did the trial court commit error in refusing to grant appellants' motions for separate trials?
E. Was there a denial of due process and a violation of Arizona Rules of Criminal Procedure as a result of pretrial delay?
F. Did the trial court commit error in refusing to strike Officer Pomush's testimony and to grant a mistrial because he had destroyed the rough notes taken during the initial interview with the victim, Charles Robinson?
G. Did the trial court commit error in refusing to grant defense counsels' motions for mistrial based upon the use of shackles during trial?
H. Was the failure of the court to declare a mistrial on the announced deadlock of the jury an abuse of discretion?
I. Was the failure of the State to produce the doctor's report on the victim reversible error?
J. Were there sufficient prejudicial events that the jury could not render a fair and impartial verdict?
It is undisputed that Johnson, his attorney, and the prosecutor met to determine whether Johnson would testify for the State in the McCowan murder trial. Against the advice of his counsel, Johnson agreed to testify and was present at the trial but was never called to the witness stand. Thereafter, prosecution was instituted in the present case. Johnson moved to dismiss the charges because the prosecutor had promised to drop the charges against him if he Agreed to testify. The court denied the motion after it heard the testimony of appellant's former attorney. It was of the opinion that the effect of the agreement was that if appellant actually Testified, the charges would be dropped.
The dismissal of a prosecution is governed by the Arizona Rules of Criminal Procedure, 17 A.R.S. Rule 16.5 states in part:
The comment following this rule indicates that the policy of the 1956 Arizona Rules of Criminal Procedure, Rule 239, was retained, in that once a criminal action is filed, the county attorney does not have the sole discretion to decide whether to dismiss. The Superior Court on good cause shown may order that a prosecution be dismissed.
In Application of Parham, 6 Ariz.App. 191, 193, 431 P.2d 86, 88 (1967), the Court of Appeals, in addressing a similar issue, said:
The prosecuting attorney did not have the sole authority to agree to a dismissal. His role was limited to recommending to the court that the case be dismissed. Any agreement exceeding this limited scope of authority would be void and unenforceable.
Appellant Johnson argues that the court erred when it refused to allow Gerald Moore, Johnson's former counsel, to testify. It is asserted that as a result, Johnson changed his strategy and took the stand to In State v. Rodriquez, 113 Ariz. 409, 413, 555 P.2d 655, 659 (1976), the appellant argued that because the trial court "found his statements to be admissible, he was forced to take the stand 'in an attempt to balance and correct what he viewed as improper admission of his confession.' " We quoted from Harrison v. United States, 392 U.S. 219, 222, 88 S.Ct. 2008, 2010, 20 L.Ed.2d 1047 (1968), stating that:
[122 Ariz. 266] testify in his own behalf and that this was a violation of the Fifth Amendment to the United States Constitution and Article 2, § 10 of the Arizona Constitution because Johnson was thereby compelled to take the stand to explain certain matters to the jury. We do not agree.
"A defendant who chooses to testify waives his privilege against compulsory self-incrimination * * * and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him."
Appellant urges that the prosecution's line of questioning on cross-examination was an attempt to project into the trial the fact that the defendant had not answered questions relating to how the offense occurred, thereby penalizing him for exercising his Fifth Amendment right to remain silent. The significant portion of the cross-examination as taken from the Reporter's Transcript is:
"Q. You said your lip was cut.
A. Yes, it was.
Q. How badly?
A. Not too bad.
Q. Could anyone see it?
Q. (By Mr. Cantor): Were you interviewed by this Officer here (gesturing)?
A. No.
Q. Never spoke to him?
A. No.
Q. Are you telling the Jury, you never were confronted by this Officer here?
A. I was confronted by two Officers. I don't know who they are.
Q. It could have been this Officer here (gesturing)?
A. As I say, I don't know whether they were. I didn't speak to them. I just turned around and went back to my cell."
This testimony must be read in the light of the defendant Johnson's defense that he and the victim had been in nothing more than a fight. Johnson's answer was not in any way responsive to the question: "Could it have been this Officer here?" Since the answer was volunteered, the State should not be held responsible for a possible damaging inference arising from it.
However, if the prosecution's questions could be considered as a deliberate attempt to bring out the fact that defendant had claimed his constitutional right to remain silent, it is plainly harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Anderson, 110 Ariz. 238, 517 P.2d...
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