State v. McCutcheon, CR-87-0142-AP
| Decision Date | 26 September 1989 |
| Docket Number | No. CR-87-0142-AP,CR-87-0142-AP |
| Citation | 162 Ariz. 54,781 P.2d 31 |
| Parties | STATE of Arizona, Appellee, v. Terry Lynn McCUTCHEON, Appellant. |
| Court | Arizona Supreme Court |
Robert K. Corbin, Atty. Gen. by Jessica G. Funkhouser and R. Wayne Ford, Asst. Attys. Gen., Phoenix, for appellee.
Frederic J. Dardis, Former Pima County Public Defender, Harold L. Higgins, Jr., Pima County Public Defender by Susan A. Kettlewell, Deputy Pima County Public Defender, Tucson, for appellant.
Defendant, Terry Lynn McCutcheon, was convicted of eight counts of armed robbery, armed kidnapping, and aggravated assault--all determined to be dangerous. He was found to have previous convictions for armed robbery and kidnapping and to have committed the present offenses while on parole. He received eight concurrent life sentences, without possibility of parole for
[162 Ariz. 56] twenty-five years, to be served consecutively to both his priors and his parole revocation time. He appealed. We have jurisdiction pursuant to article 6, § 5(3) of the Arizona Constitution and A.R.S. § 13-4031.
1. Did the trial court abuse its discretion by precluding defendant's expert on eyewitness identification from testifying at trial.
2. Did the trial court err by admitting into evidence:
(a) a photograph of defendant taken six days after the robbery;
(b) a gun found in defendant's possession at the time of his arrest; and
(c) $1300 cash found on defendant at the time of his arrest.
3. Did the trial court err by refusing to grant a mistrial because of a statement made by the prosecutor during closing argument.
4. Did the trial court coerce a verdict from the jury.
5. Did the trial court apply the wrong sentencing statute.
On April 25, 1984, at approximately 9:00 p.m., the employees of a Revco drug store on Flowing Wells Road in Tucson were closing the store for the evening. As the three employees began to leave the store, a man, wearing a blue watch cap with a bandana covering his face and wielding a gun, jumped out from behind a soda machine and announced: "This is a robbery."
The robber directed the pharmacist, Donald Featherstone, and the two cashiers, Catherine Bujak and Jennifer Warde, to the pharmacy area. He ordered Featherstone to open the safe, and then directed him to put money and drugs from the safe into a bag. The drugs taken by the robber were labelled with the store's identification number and packaged differently from those received by the public through a filled prescription.
As the robber began to leave, he encountered Catherine Bujak's husband, who was entering the store to pick up his wife. The robber instructed Mr. Bujak to lie down in the same area as the rest of the employees. The robber then fled.
Six days later, on May 1, 1984, a robbery occurred at a Goog's restaurant in Phoenix, for which defendant was subsequently convicted. In the course of the investigation of that robbery, the police searched the home of Shirley Erickson and Charles McDonald. During the search, the police found, among other things, a leather bag containing the drugs taken from the Tucson Revco. Erickson told the police the bag belonged to defendant or to his girlfriend, who were staying with Erickson and McDonald at the time. Upon defendant's arrest in the Goog's case, he was in possession of $1300 cash and a .357 revolver.
The police prepared a photographic lineup of defendant and five others. Featherstone viewed the lineup first. Almost immediately, he selected defendant as the perpetrator. The cashier, Ms. Bujak, was also shown the lineup; she could only narrow her choice to two, one of which was the defendant.
Prior to trial, the defense listed as a trial witness Dr. Jack Lipton, a psychologist and expert on eyewitness identification. After interviewing Dr. Lipton, the state filed a motion in limine to preclude Lipton's testimony. The trial court granted the motion, explaining that the instant case was not the unusual, peculiar case permitting expert testimony on eyewitness identification such as was State v. Chapple, 135 Ariz. 281, 660 P.2d 1208 (1983). At no time during the hearing on the pretrial motion or at trial did the defendant make an offer of proof concerning the specifics of Dr. Lipton's proposed testimony. Defendant argues that Chapple requires the admission of Lipton's testimony in this case to assist the jury in evaluating the eyewitness testimony. We agree with the trial Rule 702 of the Arizona Rules of Evidence provides that expert testimony is appropriate if the expert's testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue. In Chapple, we adopted the Ninth Circuit Court of Appeals' analysis for determining if a case warrants expert testimony. See United States v. Amaral, 488 F.2d 1148 (9th Cir.1973). The criteria we adopted from Amaral are: (1) the witness must be a qualified expert; (2) the subject must be appropriate for expert testimony; (3) the expert's views must conform to a generally accepted explanatory theory; and (4) the probative value of the testimony must outweigh its prejudicial effect. Chapple, 135 Ariz. at 291, 660 P.2d at 1218 (quoting Amaral, 488 F.2d at 1153).
[162 Ariz. 57] court that Chapple imposes no such requirement.
Chapple presented an extremely complex factual scenario. There, nothing connected the defendant to the crime except eyewitness testimony from two interested, related witnesses who belatedly had observed many photo lineups with sometimes ambiguous results. Some of the lineups contained photos previously unidentified in earlier photo lineups, but which were identified in the subsequent lineups. In addition, seven alibi witnesses placed the defendant in another state at the time of the crime. After carefully considering the detailed offer of proof made in Chapple, the majority of this court concluded that, under the peculiar circumstances of that case, the evidence was admissible. The court carefully limited the scope of its opinion, however, stating:
Thus, while we have no problem with the usual discretionary ruling that the trier of facts needs no assistance from expert testimony on the question of reliability of identification, the unusual facts of this case compel the contrary conclusion.
135 Ariz. at 296, 660 P.2d at 1223.
The court continued:
In reaching this conclusion, we do not intend to "open the gates" to a flood of expert evidence on the subject ... The rule in Arizona will continue to be that in the usual case we will support the trial court's discretionary ruling on admissibility of expert testimony on eyewitness identification. Nor do we invite opinion testimony in even the most extraordinary case on the likelihood that a particular witness is correct or mistaken in identification or that eyewitness identification in general has a certain percentage of accuracy or inaccuracy.
The foregoing limiting language from Chapple was further explained in State v. Lindsey, 149 Ariz. 472, 720 P.2d 73 (1986):
If those words were not clear enough, we explicitly state at this time that trial courts should not admit direct expert testimony that quantifies the probabilities of the credibility of another witness.
We again had occasion to comment upon the limited applicability of Chapple in State v. Poland, 144 Ariz. 388, 698 P.2d 183 (1985) aff'd, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986). There, as here, the trial court granted the state's pretrial motion in limine excluding expert testimony regarding eyewitness identification. We stated:
Our holding in Chapple was limited to the peculiar facts of that case....
Under the facts of this case, the trial court did not abuse its discretion in refusing to allow the introduction of expert testimony on eyewitness identification. The peculiar facts of Chapple were not present in the instant case. The question of guilt did not hinge solely on the testimony of eyewitnesses. There was nothing that the witness would testify to that was not within the common experience of the jurors. The probative value of the testimony did not overcome the prejudicial effect.... We find no error.
Defendant complains that the trial court erred by admitting into evidence a photograph of him taken six days after the robbery. He claims the photo appeared to be a "mug shot," and therefore suggested defendant had a criminal record. We will not disturb the trial court's admission of evidence unless a clear abuse of discretion is demonstrated. State v. LaGrand, 153 Ariz. 21, 734 P.2d 563, cert. denied, 484 U.S. 872, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987).
Defendant argues that the prejudicial nature of what he terms a "mug shot" substantially outweighed any probative value. See Ariz.R.Evid. 403, 17A...
To continue reading
Request your trial
-
Campbell v. People, s. 90SC86
...court's discretionary ruling on admissibility of expert testimony on eyewitness identification. Id. Accord State v. McCutcheon, 162 Ariz. 54, 56-58, 781 P.2d 31, 33-35 (1989); State v. Poland, 144 Ariz. 388, 398-99, 698 P.2d 183, 193-94 In McDonald, the defendant was charged with murdering ......
-
State v. Huerstel, CR-01-0103-AP.
...advising jurors not to give up their honestly held beliefs "whenever further deliberations are ordered." State v. McCutcheon, 162 Ariz. 54, 60, 781 P.2d 31, 37 (1989) (McCutcheon II). The trial court here never gave such an instruction when it gave the additional instructions to the jury. H......
-
State v. Atwood
...most commonly occurs during jury deliberations when the court tries to move a deadlocked jury toward a verdict. State v. McCutcheon, 162 Ariz. 54, 59, 781 P.2d 31, 36 (1989). In this case, the challenged statements were made before the jury began deliberating, suggesting that the dynamics b......
-
Com. v. Santoli
...369 (assailant's features partially obscured during incident and cross-racial nature of identification). See also State v. McCutcheon, 162 Ariz. 54, 58, 781 P.2d 31 (1989) (distinguishing State v. Chapple, supra, because "there was prompt, positive, unambiguous eyewitness identification sup......