State v. McMurtrey, 5409

Citation136 Ariz. 93,664 P.2d 637
Decision Date01 March 1983
Docket NumberNo. 5409,5409
PartiesSTATE of Arizona, Appellee, v. Jasper Newton McMURTREY III, Appellant.
CourtSupreme Court of Arizona
Robert K. Corbin, Atty. Gen., William J. Schafer, III, Chief Counsel, Crim. Div., Jack Roberts, Asst. Atty. Gen., Phoenix, for appellee

Bertram Polis and John O'Brien, Tucson, for appellant.

GORDON, Vice Chief Justice:

On July 13, 1981, a jury found appellant guilty of two counts of first degree murder in violation of A.R.S. § 13-1105(A)(1) and one count of attempted first degree murder in violation of A.R.S. §§ 13-1105(A)(1) and 13-1001. Following an aggravation-mitigation hearing appellant was sentenced to death for each of the murder counts, and to twenty-one years in prison for the attempted murder count. This Court has jurisdiction under Ariz. Const. Art. 6, § 5(3) and A.R.S. §§ 13-4031 and 13-4033. The judgment of conviction as to all counts is affirmed. The sentence for attempted murder is affirmed. The case is remanded for resentencing in connection with the first degree murder convictions.

On the night of August 9, 1979, appellant was involved in a shooting at the Ranch House Bar in Tucson. The evidence adduced at trial indicated that on the evening of the shooting appellant and the three victims in the case engaged in some loud discussions at the Ranch House Bar. Sometime later that night, appellant went out to the parking lot of the bar where he obtained a gun. He walked back into the bar and shot the three victims, killing two and wounding the third. He then fled the bar and the State of Arizona.

A year later, in August of 1980, appellant broke into a farm house in Topeka, Kansas, and tied up the farmer who lived there. The farmer managed to escape and notify police. Appellant surrendered to police after three hours of negotiation during which he wounded one officer. He was then returned to Arizona for prosecution. Appellant's Appellant raises seven issues on appeal: (1) whether the trial court erred in refusing to order the state to disclose the addresses of some witnesses; (2) whether the shackling of appellant during trial denied him a fair trial; (3) whether the trial court erred in refusing to ask requested voir dire questions; (4) whether the trial court erred in allowing a previously hypnotized witness to testify at trial; (5) whether the testimony of the state's expert witness was improper; (6) whether the refusal of a requested jury instruction was improper; and (7) whether the death penalty was properly imposed.

defenses at trial were self defense and insanity.

FAILURE TO DISCLOSE WITNESSES' ADDRESSES

In October of 1980 the state provided appellant's counsel with a list of witnesses and their statements as required by Ariz.R.Crim.P. 15.1(a). The addresses of some of the witnesses were excised from the list. In January of 1981 defense counsel filed a motion requesting an order compelling disclosure of the addresses. The state responded with a motion requesting a protective order under Ariz.R.Crim.P. 15.5 on the grounds that disclosure of the addresses would result in a risk of harm outweighing any usefulness.

Based on the evidence adduced at the hearing on the motions, the trial court did not order disclosure of the addresses. The judge found that there was a sufficient showing of risk that he should "proceed with caution." His solution was to order the prosecutor to make the witnesses available to defense counsel for interviews, while granting defense counsel leave to renew his motion if, after interviewing the witnesses, he felt he needed the addresses. Defense counsel did interview all the witnesses prior to the beginning of the trial in July of 1981. At no time did he renew his request for disclosure of addresses.

On appeal appellant claims that the failure to order disclosure of the addresses was error requiring reversal. Appellant argues that because the prosecutor did not seek a protective order before excising the addresses from the Rule 15.1(a) disclosure and because the state failed to show that there was a risk of harm in revealing the addresses, the trial court should have ordered the state to disclose the addresses. We do not agree.

It is clear that Rule 15.1 requires disclosure of witnesses' addresses. That rule provides:

"No later than 10 days after the arraignment in Superior Court, the prosecutor shall make available to the defendant for examination and reproduction the following material and information within his possession or control:

"(1) The names and addresses of all persons whom the prosecutor will call as witnesses in the case-in-chief together with their relevant written or recorded statements;"

Ariz.R.Crim.P. 15.1(a)(1). Rule 15.5, however, creates exceptions. That rule provides in relevant part:

"Upon motion of any party showing good cause the court may at any time order that disclosure of the identity of any witnesses be deferred for any reasonable period of time not to extend beyond 5 days prior to the date set for trial, or that any other disclosures required by this rule be denied, deferred or regulated when it finds:

"(1) That the disclosure would result in a risk or harm outweighing any usefulness of the disclosure to any party; and

"(2) That the risk cannot be eliminated by a less substantial restriction of discovery rights."

Ariz.R.Crim.P. 15.5(a). The language of Rule 15.5(a) indicates that the rule requires a balancing of risk or harm, against the usefulness of disclosure. The rule also requires that the manner of regulation of disclosure be no more restrictive of discovery rights than necessary.

The comment to Rule 15.5(a) indicates that a trial judge has broad discretion to regulate discovery when a risk of harm is shown:

"The court is given broad discretion to limit discovery required by this rule whenever it is shown a risk of harm resulting from a specific disclosure. Such risks could include the potential for physical harm, intimidation, bribery, economic reprisals, harassment of a witness, extreme prejudice to a witness or party, or interference with or disruption of ongoing police investigations."

Ariz.R.Crim.P. 15.5(a) comment. Consequently, we will not disturb a trial court's decision to regulate disclosure unless the court clearly abuses its discretion in finding that the risk of disclosure outweighs its usefulness, or in selecting a manner of regulation. Cf. State v. Piper, 113 Ariz. 390, 555 P.2d 636 (1976) (trial court ruling under Rule 15.1(e) will not be disturbed absent abuse of discretion); State v. Kevil, 111 Ariz. 240, 527 P.2d 285 (1974).

Turning to the instant case, we recognize that the prosecutor did not follow the procedure preferred under Rule 15. He should not have excised the addresses from the Rule 15.1 disclosure without first obtaining a protective order under Rule 15.5(c). Ariz.R.Crim.P. 15 comment. The failure of the prosecutor to follow this preferred procedure, however, does not deprive the trial court of the power to subsequently enter a Rule 15.5(c) order regulating discovery if the court finds the circumstances of the case warrant it. In the case at issue we find that the trial court did not abuse its discretion in so finding. Nor did the court abuse its discretion in the manner of regulation selected.

At the hearing on the two motions the evidence indicated that the five witnesses whose names were withheld all expressed fear at having to testify against appellant and requested that their addresses be withheld. The evidence also indicated that appellant was a member of a motorcycle club, that the witnesses feared reprisals from either appellant or other club members, and that one of the witnesses had already been kidnapped at gunpoint by members of the club in connection with a different matter. Furthermore, after appellant's arrest he stated that he was waiting to die but was "going to try and take a couple of 'em with me first." Based on this evidence the court was justified in finding that there was some risk of harm, intimidation, or harassment of the witnesses.

Balanced against this risk is the fact that the addresses might have been useful in investigating the witnesses and perhaps developing impeachment material. Defense counsel offered nothing more specific as to why the addresses were useful. Under these circumstances we cannot say that the trial court abused its discretion in deciding that the risk of harm, when balanced against the usefulness of disclosure, justified regulating disclosure.

We also find that the trial court acted well within its discretion in selecting a manner of regulating disclosure. In general, the withholding of addresses of witnesses is a relatively minor restriction of disclosure rights. This applies with particular force to the instant case. Though he denied appellant's request for disclosure, the trial judge ordered the prosecutor to make the witnesses available for interviews at defense counsel's convenience. The court also advised defense counsel that if, after the interviews, he felt the witnesses were not genuinely afraid or that he still needed their addresses, he could renew his motion and the court would reconsider it. Furthermore, during the trial, at defense counsel's request, the court made two witnesses remain in Tucson while the defense investigated them and decided whether to recall them. In short, the trial court made every effort to insure that the defense had adequate access to and ability to investigate the witnesses in spite of the fact that the addresses were withheld. He also left open the possibility of disclosure of the addresses if defense counsel found them to be important. Under these circumstances, the withholding of the addresses was no greater restriction of discovery rights than the situation called for.

SHACKLES

The morning before jury selection in the instant case appellant objected to the fact An appellate court will...

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