State v. Lawrence, 3342-2

• Decision Date: 05 July 1979
• Docket Number: No. 3342-2,3342-2
• Citation: 599 P.2d 754,123 Ariz. 301
• Parties: STATE of Arizona, Appellee, v. Edward Lee LAWRENCE, Appellant.
• Court: Arizona Supreme Court

Page 754

599 P.2d 754

123 Ariz. 301

STATE of Arizona, Appellee, v. Edward Lee LAWRENCE, Appellant.

No. 3342-2.

Supreme Court of Arizona, In Banc.

July 5, 1979.

Rehearing Denied Sept. 6, 1979.

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

Ross P. Lee, Maricopa County Public Defender by Michael G. Sullivan, Deputy Public Defender, Phoenix, for appellant.

HAYS, Justice.

The appellant, Edward Lee Lawrence, was convicted by a jury of second-degree murder in 1975. On petition for post-conviction relief, appellant was granted a new trial. That also resulted in a conviction for second-degree murder. He was subsequently sentenced to a term of fifteen years to life. We have jurisdiction pursuant to A.R.S. § 13-4031 and art. 6, § 5 of the Arizona Constitution.

Appellant makes the following contentions:

1. It was error to deny a mistrial based on previously undisclosed statements by a witness and on a reference by her to a prior bad act.

2. The trial court should have granted a mistrial when Deputy Balian mentioned the word "convicted."

3. Defendant was entitled to a mistrial in view of references to previous trials by two witnesses.

4. Defendant was denied his constitutional right to be present at all stages of the trial when the judge formulated written answers to questions from the jury in the absence of defendant.

5. The trial judge improperly shifted the burden of proof to appellant by emphasizing the word "may" in response to a jury question concerning malice.

6. There was insufficient evidence to support the verdict.

Appellant's first assignment of error deals with three statements made by a witness in the course of the second trial. Appellant maintains that her answer "(a)bout stealing a car" in response to a question from the prosecutor is grounds for a mistrial. It is appellant's contention that this reference constitutes evidence of a prior offense and is highly prejudicial. We do not agree. To state simply that someone talked about stealing a car does not mean that any offense was in fact committed. The witness said nothing further about a car and did not state that defendant had stolen a car. The trial court properly and strongly admonished the jury to disregard the comment and asked defense counsel if they had any suggestions as to how he could make a more emphatic admonition. Defense counsel answered in the negative. No further questions regarding the car were asked of the witness in the presence of the jury. Appellant cites State v. Kellington, 93 Ariz. 396, 381 P.2d 215 (1963), as mandating reversal under these circumstances. Kellington involved witnesses who related a defendant's statements to the effect that he had been Convicted of burglary. The witnesses were police officers and the court stated that they should have been aware of the prejudicial effect of such testimony.

The instant case is clearly distinguishable in that the witness did not allege a conviction, nor even that a crime had in fact been committed. See State v. Sanchez, 116 Ariz. 118, 568 P.2d 425 (1977). A mistrial was properly denied.

Appellant argues that a mistrial was the only appropriate sanction for the prosecution's failure to disclose two statements by a witness. Specifically, appellant claims that he had no knowledge that the witness was going to testify that the defendant had told her he had just come from the home of the victim and that he had just killed somebody. Initially we note that appellant's objection to these two statements was not timely. The statements to which appellant objected on the basis of lack of disclosure were made before the witness referred to the car, but defense counsel objected at that point only to the comment concerning the car. It was not until after recross-examination that defense counsel raised an objection to the statements not previously disclosed by the prosecutor. The prosecutor explained that he had not deliberately withheld the statements but had simply forgotten about them since he had obtained them only a few days before trial. Upon learning this, the court allowed the defense four days in which to interview the witness and attempt to impeach her. Appellant concedes that this was within the discretion of the trial judge under Arizona Rules of Criminal Procedure, rule 15.7, but that the trial court abused its discretion because defense had insufficient time to rebut these statements.

This court has consistently held that the nature and imposition of sanctions for violation of discovery rules are within the sound discretion of the trial court and will not be disturbed unless defendant can show prejudice. State v. Hunt, 118 Ariz. 431, 434, 577 P.2d 717, 720 (1978); State v. Ramirez, 116 Ariz. 259, 265, 569 P.2d 201, 207 (1977); State v. Clark,112 Ariz. 493, 543 P.2d 1122 (1975). No prejudice has been shown here.

Next, appellant asserts that a mistrial should have been granted because of the following exchange between Deputy Balian, the state's witness, and defense counsel:

Q. When you found the ammunition, as you stated, did you ask him if he had a revolver?

A. Yes, I did.

Q. What was his answer to that?

A. He said that he did not have a revolver. He wouldn't carry one because he was a convicted do you want me to go through with this or what?

Appellant cites State v. Green, 110 Ariz. 293, 518 P.2d 116 (1974), as supporting his contention that a mistrial should have been granted.

Green dealt with an entrapment defense to a narcotics charge. Defense counsel was relying on the grand jury testimony of the state's witness when on cross-examination the witness responded that defendant was known as a dealer in narcotics. The Arizona Supreme Court found the remark highly prejudicial with a substantial possibility of having influenced the guilty verdict returned by the jury. Id. at 295, 518 P.2d at 118.

Immediately we note two significant distinctions between Green and the instant case: Defense counsel in Green had not previously examined the witness and was relying Solely on testimony given before the grand jury; defendant was charged with the sale of narcotics and the witness' statement bore directly on that charge and the defense of entrapment.

Defense counsel in the instant case had extensively examined the witness in a previous trial and the mention of the word "convicted," with nothing more, does not refer to any specific offense. In considering this point, we note that defense counsel conceded during the hearing on a motion for mistrial that he had not asked the witness precisely the same question at the first trial.

During the first trial the prosecutor questioned the witness in the following manner:

Q. Did you have occasion to inquire of the defendant if he had a pistol of any kind to go along with this ammunition?

A. I . . . asked if he had a revolver and he said "No." A revolver was in the possession of the person who drove the car and fled from the scene.

On cross-examination the following exchange occurred between defense counsel and the state's witness:

Q. I believe that you have indicated that as a result of finding the shells . . . you inquired if he had possession of a revolver that would go along with the shells?

A. Yes, this was before I put him in the car.

Q. And he said that, in fact, no, the driver had possession of the weapon?

A. Yes. He said the driver had possession of the weapon.

At the first trial, defense counsel asked a narrow, leading question suggesting the answer he wanted from the witness. When we contrast this carefully-framed question with the broad, open-ended inquiry at the second trial "(w)hat was his answer to that"? it is evident that defense counsel invited error by venturing onto dangerous ground and carelessly framing a question that invited the witness to relate the totality of defendant's response. Conversely, the state did not even broach the subject of a revolver at the second trial.

We do not find Green apposite to this case. The court in Green recognized an exception when the remark was deliberately or negligently elicited by defense counsel. Id. at 294, 518 P.2d at 117. We find the facts here closer to those in State v. Brewer, 110 Ariz. 12, 514 P.2d 1008 (1973), where, discussing prior bad acts mentioned by the state's witness, this court said:

(D)efense counsel in the instant case elicited the response about which defendant complains. It is apparent from the questions leading up to the answer that defense counsel was approaching dangerous ground. . . . He got the result he asked for from a hostile witness. (Emphasis added.) Id. at 16, 514 P.2d at 1012.

In State v. Gallegos, 99 Ariz. 168, 407 P.2d 752 (1965), the response of a witness to defense counsel's question clearly implicated defendant as a marijuana peddler. There, we discussed the problem of inadmissible but responsive testimony elicited by defense counsel:

In State v. Gortarez, 96 Ariz. 206, 393 P.2d 670, we held that Where otherwise inadmissible testimony was given and was called for by the question of defense counsel, it would not be considered as reversible error even if prejudicial. . . . If the court concluded that the State's witness deliberately introduced the prejudicial matter of other criminal offenses, under the repeated holdings of this Court it had no discretion but to direct a mistrial. On the other hand, if the answer was responsive to a question asked by defense counsel, the court should deny the application for mistrial. . . . In this instance, the trial judge apparently resolved this in favor of the State's witness. . . . We will not disturb this discretion unless it clearly appears, which it does not here, that the trial judge erred and hence was wrong. (Emphasis added.) Id. at 173, 407 P.2d at 755.

It is clear from the record that the trial court determined that Deputy Balian's comment which he himself interrupted...