State v. Little, 1152

• Citation: 350 P.2d 756,87 Ariz. 295,86 A.L.R.2d 1120
• Decision Date: 30 March 1960
• Docket Number: No. 1152,1152
• Parties: , 86 A.L.R.2d 1120 STATE of Arizona, Appellee, v. Edward LITTLE, Appellant.
• Court: Supreme Court of Arizona

Page 756

350 P.2d 756

87 Ariz. 295, 86 A.L.R.2d 1120

STATE of Arizona, Appellee, v. Edward LITTLE, Appellant.

No. 1152.

Supreme Court of Arizona.

March 30, 1960.

Wade Church, Atty. Gen., and Stirley Newell, Asst. Atty. Gen., and Harry Ackerman, County Atty. of Pima County, and Jack I. Podret, Deputy County Atty., Tucson, for appellee.

Beer, Seaman & Polley, Phoenix, for appellant.

BERNSTEIN, Justice.

On this appeal from a judgment of conviction for the crime of unlawful sale of narcotics, defendant raises nine assignments of error.

The first assignment is that the trial court erred in denying defendant's challenge to the jury panel. Defendant claims that the jury was selected from a voters' registration list prepared approximately two and one-half years prior to trial, instead of from a list compiled in accordance with A.R.S. § 21-301. This Section provides:

'A. The board of supervisors at its regular meeting in January, following each biennial general election, or at a special meeting called for that purpose, shall order a list made of all persons within the county qualified to serve as jurors, and shall from time to time revise the list to keep it as complete as practicable, and shall file certified copies of the original and revised lists in the office of the clerk of the superior court.'

The State does not assert that the jury list utilized in the instant case was compiled in accordance with the statute, but urges on the basis of this Court's decision in Midkiff v. State, 29 Ariz. 523, 243 P. 601, that such non-compliance, in the absence of a showing of prejudice to the defendant, does not require a mistrial. We recognize that the recent trend has been to minimize the need for specific proof of actual prejudice where the method of empanelling or selecting the jury permits an inference of the possibility of prejudice. See e. g., Coca Cola Bottling Co. of Flagstaff v. Jones, 74 Ariz. 393, 250 P.2d 586; Moran v. Jones, 7 Ariz. 175, 253 P.2d 891. Here, however, the defendant has made no showing whereby he was or, indeed, may have been prejudiced in any way by the preparation of the jury list, and we consider the decision in Midkiff v. State, supra, authority for holding this assignment to be without merit.

Our holding herein is not to be construed, however, as sanctioning noncompliance with the provisions of A.R.S. § 21-301. A list including only registered voters clearly does not satisfy the statutory requirement of 'a list made of all persons within the county qualified to serve as jurors,' which list shall be revised from time to time 'to keep it as complete as practicable, * * *.' The fact that a party to an action may not in every case assign such non-compliance as error does not excuse the Board of Supervisors' failure to prepare a proper jury list or imply the unavailability of other remedies for securing statutory compliance. See %.a.r.s/ § 21-302.

The second assignment is that the trial court erred in sustaining the State's objection to questions propounded by defendant to prove that the chief prosecution witness-who allegedly purchased the narcotics from defendant--was living in open and notorious cohabitation (in violation of A.R.S. § 13-222) and that prosecution officials, knowing that fact, were doing nothing about it in order to induce the witness to testify in favor of the State.

Evidence offered to impeach the credibility of a witness by showing that he has a motive to testify on behalf of the State or against the defendant is generally admissible as proper cross-examination whether such evidence also tends to prove that the witness has committed acts in violation of the law. As stated in Annotation, 62 A.L.R.2d 610, at page 624:

'The rule allowing great or liberal latitude in the cross-examination by defendant of a witness for the prosecution, with respect to his motive for testifying, is especially applicable where such witness is a codefendant or accomplice of the accused, or is charged with or threatened with criminal prosecution for an alleged offense not connected with that with which the person against whom he testifies is charged, and whose testimony against defendant may be influenced by a promise of, or hope or expectation of, immunity or leniency with respect to his case as a consideration for testifying against defendant.'

Among the many cases cited in support of the above paragraph is the decision of this Court in Gibbs v. State, 37 Ariz. 273, 279, 293 P. 976, 978, 74 A.L.R. 1105, wherein it was said:

'We think it is always competent to show the interest of a witness for the purpose of ascertaining his leanings or disposition or wishes, and that it is especially competent when the witness is an accomplice and has been promised immunity in case he testifies against his co-accomplice.'

Here the offer of proof was clearly within the range of permissible cross-examination. The objection of the State to the effect that defendant did not offer to prove that the witness himself knew that the acts sought to be proved constituted a crime overlooks the fact that the questions were propounded to the witness himself. The sustaining of the objection imposed too severe a limitation upon the scope allowed defense counsel in cross-examining the witness to whom defendant was alleged to have sold the narcotics illegally.

The fact that the answer of the witness may demonstrate that the alleged motive, bias or interest does not in fact exist does not render the question inadmissible. See State v. Aldrich, 75 Ariz. 53, 251 P.2d 653; State v. Rothe, 74 Ariz. 382, 249 P.2d 946.

In this connection the Supreme Court of the United States in Alford v. United States, 282 U.S. 687, 692, 51 S.Ct. 218, 219, 75 L.Ed. 624, stated:

'Counsel often cannot know in advance what pertinent facts may be elicited on cross-examination. For that reason it is necessarily exploratory; and the rule that the examiner must inducate the purpose of his inquiry does not, in general, apply. Knapp v. Wing, 72 Vt. 334, 340, 47 A. 1075; Martin v. Elden, 32 Ohio St. 282, 289. It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. Tla-koo-yel-lee v. United States, supra [167 U.S. 274, 17 S.Ct. 855, 42 L.Ed. 166]; King v. United States, supra [5 Cir., 112 F. 988]; People v. Moore, 96 App.Div. 56, 89 N.Y.S. 83, affirmed without opinion 181 N.Y. 524, 73 N.E. 1129; cf. People v. Becker, 210 N.Y. 274, 104 N.E. 396. To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief, is to deny a substantial right and withdraw one of the safeguards essential to a fair trial.'

The contention that the above evidence is inadmissible unless the defendant offers to prove compulsion of the witness by the State misconstrues the relevancy and purpose of the offer. The witness' belief that his testimony if favorable to the prosecution, will result in leniency or favorable treatment in connection with a crime committed by him is evidence of motive despite the fact that the witness' belief is mistaken, unreasonable or, indeed, is not based on any words or conduct of the prosecution. The test is the witness' expectation or hope of a reward, not the actuality of a promise by the State. See Spaeth v. United States, 6 Cir., 232 F.2d 776, 62 A.L.R.2d 606; People v. Moore, 96 App.Div. 56, 89 N.Y.S. 83, affirmed 181 N.Y. 524, 73 N.E. 1129; Stevens v. People, 215 Ill. 593, 74 N.E. 786; State v. Kent, 4 N.D. 577, 62 N.W. 631, 27 L.R.A. 686. And this expectation of favor or leniency need not be related to the same or similar crime for which defendant is then being tried. Alford v. United States, supra; People v. Pantages, 212 Cal. 237, 297 P. 890; cf. State v. Curcio, 23 N.J. 521, 129 A.2d 871. But cf. State v. Hunter, 183 Wash. 143, 48 P.2d 262; Lott v. United States, 5 Cir., 230 F.2d 915, certiorari denied 351 U.S. 953, 76 S.Ct. 848, 100 L.Ed. 1477.

By the third, fourth and fifth assignments, the defendant urges that the court erred in permitting the State to prove, over objection of defendant, that defendant had sold narcotics on occasions prior to the time alleged in the indictment. The third assignment is based on the general rule that evidence of separate and distinct crimes is inadmissible. The State does not dispute the rule but claims that in the instant case the exception, which permits evidence of similar crimes to prove a common plan, scheme or design, is applicable. Defendant argues that such exception applies only where proof of intent, motive or knowledge, allegedly not in issue in the instant case, is part of the crime.

The general rule and exceptions thereto are well set forth in Dorsey v. State, 25 Ariz. 139, 143-144, 213 P. 1011, 1012:

'The general rule is that, in the prosecution of one accused of a particular offense, evidence showing or tending to show the commission by accused of another crime entirely distinct and independent of that for which he is on trial, even though it be a crime of the same class, is neither relevant nor admissible. This rule is so universally accepted, that it is unnecessary to cite authorities supporting it, * * *.

'To this general rule, however, there are certain well-recognized exceptions, in which evidence of other crimes is competent to prove the specific crime charged. This is true when it tends to establish: (1) Motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes, so related to each other that proof of one tends to establish the others; (5)...