State v. Koch, 5527

Decision Date06 October 1983
Docket NumberNo. 5527,5527
Citation138 Ariz. 99,673 P.2d 297
PartiesSTATE of Arizona, Appellee, v. Mark Alan KOCH, Appellant.
CourtArizona Supreme Court

Robert K. Corbin, Atty. Gen., William J. Schafer, III, Chief Counsel, Crim. Div., Robert S. Golden, Asst. Atty. Gen., Phoenix, for appellee.

Nancy Grey Postero, Tucson, for appellant.

GORDON, Vice Chief Justice:

On February 9, 1982, a jury found appellant guilty of first degree murder in violation of former A.R.S. §§ 13-451 and 452. On March 9, 1982, he was sentenced to life in prison without possibility of parole for twenty-five years. This Court has jurisdiction to hear this appeal pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 13-4031. The judgment of conviction and the sentence are affirmed.

On May 24, 1976, the body of Richard Johnson, whose hands were crippled by arthritis, was found near his car in the desert north of Tucson, Arizona. The investigation of the killing originally focused on a Michael Cassius, but ran into a dead end. It was not until approximately December of 1977 that the authorities became aware of appellant's possible involvement. Detectives learned that appellant and three friends had been in Tucson at the time Richard Johnson disappeared. Late at night, on the way back to Phoenix from Tucson, the car appellant and his friends were riding in broke down. Appellant went to get help and was picked up in a car fitting the description of Johnson's car, driven by someone with abnormal hands. Appellant did not return to the disabled car that night. The following morning a friend of appellant's in Phoenix, Danny Rivera, received a phone call from appellant asking for help with the disabled car. Furthermore, appellant told Rivera to pick him up by the side of Interstate 10 on the way into Tucson. Rivera set out for Tucson with Bruce McGhee. They had some trouble locating appellant but eventually found him by the side of Interstate 10. They proceeded to Tucson where they rejoined appellant's other friends and fixed the car. They then returned to Phoenix. Though there were inconsistencies in their stories, both Rivera and McGhee stated that after appellant was picked up he indicated that he had killed a crippled man the night before and left him in the desert.

Appellant raises six issues on appeal: (1) whether his motion for mistrial was properly denied; (2) whether certain opinion evidence was properly excluded; (3) whether a hearsay description and composite drawing were properly excluded; (4) whether certain questioning by the prosecutor denied him a fair trial; (5) whether a jury instruction was properly given; and (6) whether the trial judge acted improperly in sending a note to the jury.

Motion for Mistrial

Danny Rivera was a witness at appellant's trial. During direct examination Rivera referred to someone as "the prosecutor against me and Mark [the appellant]." 1 Appellant moved for a mistrial claiming that Rivera's statement alerted the jury to the fact that he was involved in other criminal activity. The motion was denied. No cautionary instruction was requested and none was given. Appellant argues that the denial of the motion for mistrial was reversible error. We, however, find no error.

The decision to grant or deny a motion for mistrial rests within the sound discretion of the trial court and the failure to grant a motion for mistrial is error only if such failure was a clear abuse of discretion. United States v. Kahan & Lessin Co., 695 F.2d 1122 (9th Cir.1982); United States v. Jackson, 585 F.2d 653 (4th Cir.1978); United States v. Nace, 561 F.2d 763 (9th Cir.1977); United States v. Love, 535 F.2d 1152 (9th Cir.), cert. denied, 429 U.S. 847, 97 S.Ct. 130, 50 L.Ed.2d 119 (1976); United States v. Faulkenbery, 472 F.2d 879 (9th Cir.), cert. denied, 411 U.S. 970, 93 S.Ct. 2161, 36 L.Ed.2d 692 (1973); State v. Ramirez, 116 Ariz. 259, 569 P.2d 201 (1977). This is because the trial judge is always in the best position to determine whether a particular incident calls for a mistrial. The trial judge is able to sense the atmosphere of the trial, the manner in which the objectionable statement was made, and the possible effect it had on the jury and the trial. United States v. Jackson, supra; United States v Nace, supra; United States v. Love, supra; United States v. Faulkenbery, supra.

In the instant case, the trial judge found that Rivera's statement was inadvertent, not solicited by the prosecutor, and that, in context, the jury did not appreciate the statement as associating appellant with other criminal activity. We cannot say the trial judge abused his discretion in so finding. United States v. Love, supra; United States v. Faulkenbery, supra; State v. Favors, 92 Ariz. 147, 375 P.2d 260 (1962); cf. United States v. Wyant, 576 F.2d 1312 (8th Cir.1978) (unsolicited statement from witness not grounds for mistrial or cautionary instruction); United States v. Resnick, 488 F.2d 1165 (5th Cir.), cert. denied, 416 U.S. 991, 94 S.Ct. 2400, 40 L.Ed.2d 769 (1974) (motion for mistrial based on introduction of evidence of unrelated criminal activity properly denied); United States v. Jackson, 423 F.2d 506 (9th Cir.), cert. denied, 400 U.S. 823, 91 S.Ct. 44, 27 L.Ed.2d 51 (1970) (witness' passing reference to fact that defendant had "another case" was not grounds for mistrial).

Opinion Evidence

One of the theories advanced by appellant in his defense was that Michael Cassius had killed the victim. Part of this defense rested on the testimony of Henry Clark. Clark had spent several days in a Pima County holding tank with Cassius and a William Taylor in 1976. During this confinement, Cassius spoke of the murder of Richard Johnson in some detail. Later, in an effort to strike a bargain with the state regarding his sentence, Clark related this conversation with Cassius to detectives. His statement to the detectives was tape-recorded and concluded with Clark saying "I am quite sure he [Cassius] did it." At appellant's trial, however, Clark testified that Cassius' statements in the holding tank referred only to a murder for which he (Cassius) was being investigated and that Cassius was merely relating how he was supposed to have committed the crime. The tape recording, except for Clark's concluding statement, was played for the jury. A transcript thereof, also minus Clark's concluding statement, was admitted into evidence. Appellant vigorously used Clark's earlier statement to the detectives in an effort to impeach him and objected to the trial judge's exclusion of Clark's concluding comment. Appellant now argues that this exclusion constitutes reversible error. We do not agree.

The trial court excluded Clark's opinion as to Cassius' guilt because it embraced an ultimate issue to be decided by the jury. However, Rule 704, 17A A.R.S. Rules of Evid., provides that "[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." Thus, the trial judge's exclusion of the statement was not proper on this ground. On appeal, this Court will uphold the trial court's judgment if the correct legal result was reached even though based on the wrong reason. State v. Dugan, 113 Ariz. 354, 555 P.2d 108 (1976). We find that Clark's opinion that Cassius killed the victim was properly excluded based on Rule 701, 17A A.R.S. Rules of Evid.

Rule 701 provides that lay testimony "in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue." 2 At the time of his conversation with Cassius, Clark did not know of any of the circumstances surrounding the killing of Richard Johnson; he was not even aware that there had been a killing. Clark's only perception even remotely connected with the killing was his discussion with Cassius. That is simply not sufficient to rationally support an opinion regarding who was responsible for the killing. There may well be cases in which a witness' perception includes not only a conversation with an individual, but also sufficient knowledge of the circumstances of the act or a sufficiently close association with the individual that the witness may rationally opine that the individual did the act. Cf. State v. Williams, 133 Ariz. 220, 650 P.2d 1202 (1982) (woman's recorded opinion that she believed her boyfriend's confession to her that he had murdered his ex-wife ruled admissible). The instant case, however, is not such a case. There is no evidence that Clark and Cassius knew each other prior to each being put in the holding tank. In addition, Cassius had a self-serving motive for discussing the killing 3 and Clark had a self-serving motive for relating that discussion to the detectives. 4 None of these factors or the fact that appellant cross-examined Clark on his apparent change in perception of Cassius' statement heighten the reliability of Clark's perception or his resultant opinion. As Clark's opinion that he was "quite sure" Cassius killed the victim cannot be said to have been rationally based on Clark's perceptions, it was properly excluded. See United States v. Skeet, 665 F.2d 983, 985 (9th Cir.1982) (opinion testimony properly excluded because not "predicated on concrete facts within [the witnesses'] own observation and recollection--that is facts perceived from their own senses, as distinguished from opinions or conclusions drawn from such facts," quoting Randolph v. Collectramatic, Inc., 590 F.2d 844, 847-48 (10th Cir.1979)); State v. Henricks, 653 P.2d 479, 482 (Mont.1982) (because "[t]he two witnesses here did not see the accident," and because "[t]heir opinions were based upon [contact with the parties shortly] after the accident" their opinion as to who was driving the car was not...

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