State v. Melendez
| Citation | 588 P.2d 294,121 Ariz. 1 |
| Decision Date | 30 October 1978 |
| Docket Number | 3845,Nos. 3768,s. 3768 |
| Parties | The STATE of Arizona, Appellee, v. Ruben Morales MELENDEZ, Appellant. |
| Court | Supreme Court of Arizona |
Robert L. Storrs, Phoenix, for appellant.
Ruben Morales Melendez, the defendant herein, appeals from a jury verdict and judgment of guilt to the crime of first degree murder, A.R.S. § 13-452, and a sentence of death. We have taken jurisdiction pursuant to A.R.S. § 13-1711 and Rule 26.15, Rules of Criminal Procedure, 17 A.R.S.
We are asked to answer the following questions on appeal:
1. Did the trial court's refusal to ask the jury panel four of the defendant's requested voir dire questions constitute reversible error?
2. Did the trial court commit reversible error in denying the defendant's motion to sever?
3. Was the defendant erroneously precluded from attacking the credibility of the State's chief witness by showing that his testimony shielded him from the possibility of receiving the death penalty or life imprisonment for his own participation in the homicide?
4. Did the trial court err in refusing to allow the defendant to cross-examine the State's chief witness regarding whether the polygraph examiner's conclusion regarding the veracity of some of his answers caused him to change his story?
5. Did the trial court commit reversible error in denying the defendant's motion for mistrial based on a juror's observation of the defendant in handcuffs?
6. Was the jury erroneously instructed not to consider the effect of intoxication on the defendant's ability to form the requisite intent for the crime of murder by torture?
7. Did the trial court erroneously refuse to give the defendant's requested instruction and verdict form for voluntary manslaughter?
8. Did the trial court commit reversible error in refusing to give the defendant's requested jury instructions on second degree murder, proximate cause and aggravated assault?
9. Is the Arizona death penalty statute constitutional and if so was the death penalty inappropriately imposed upon the defendant?
Defendant Melendez was tried jointly with the codefendant Joe Cota Morales. The facts of the case are contained in the opinion in State v. Morales, 120 Ariz. 517, 587 P.2d 236 (1978).
The defendant contends that the trial court committed reversible error in refusing to ask the jury panel questions submitted by the defendant regarding the testimony of the accomplice, the prior felony conviction of the defendant, the feelings of the jury about murder by torture, and the gruesome nature of the evidence.
Rule 18.5 of the Rules of Criminal Procedure, 17 A.R.S., places the responsibility for conducting the voir dire examination of the prospective jurors on the court. The trial court's duty is to ask the prospective jurors any questions it deems necessary to determine their qualifications and to enable the parties to exercise intelligently their peremptory challenges and challenges for cause. Rule 18.5(c), (d), (e), Rules of Criminal Procedure, 17 A.R.S. The purpose behind the provisions of Rule 18.5 is to give the trial court authority to limit the scope of examination to those questions reasonably designed to expose possible prejudices on the part of the jurors. As stated in the Comment to the rule:
"Subsection (e), and the shift of Voir dire responsibility to the court, are intended to remove entirely the practice of some attorneys of 'conditioning' the jury by means of questions and argument which amount to preliminary instructions on the law and facts of the case."
We have studied the transcript of the trial court's voir dire of the prospective jurors. The defendant's questions do not appear designed to uncover juror's prejudices. Rather, they appear to us to be more designed to condition the jurors to damaging evidence expected to be presented at trial and to commit them to certain positions prior to receiving the evidence. Such is not a legitimate function of voir dire questions. The scope of the voir dire examination is left to the sound discretion of the trial court and as long as there is no abuse of that discretion, error will not be found on appeal. State v. Smith, 114 Ariz. 415, 561 P.2d 739 (1977). It was not error "* * * to refuse to ask the requested questions."
When it was learned during the course of the trial that codefendant Morales did not intend to take the stand in his own defense, counsel for defendant Melendez sought a severance of the trials of the two defendants on the ground that his client's Sixth Amendment right to counsel imposed a duty upon him as counsel to attempt to persuade the jury to draw an inference of guilt from Morales' silence, but that he would be precluded from doing so by Morales' constitutional right, as a defendant in the case, to remain silent. Only if the cases were severed, argued counsel, would Melendez be able to call Morales as a witness and, if Morales refused to testify, comment on such refusal and the likely reasons for it. The trial court denied the motion to sever and Melendez claims reversible error.
Under Rule 13.4(a) of the Rules of Criminal Procedure, 17 A.R.S., a trial court must grant a requested severance if it appears "necessary to promote a fair determination of the guilt or innocence of any defendant," and Rule 13.4(c) allows the motion to be made during trial if the grounds for a motion to sever were not previously known. Since this matter will be remanded for retrial, the motion can be made again, but before trial commences and based upon the facts that were developed in this trial. The court can then rule based upon a more complete factual basis. See State v. White, 115 Ariz. 199, 564 P.2d 888 (1977).
Defendant contends it was reversible error to preclude him from attacking the credibility of the witness Cruz Martinez by showing that by his testimony he was escaping the possibility of a penalty of death or life imprisonment. We agree. We have discussed this issue at length in the companion case of State v. Morales, supra, filed this day. There we held it was reversible error to unduly restrict the right of cross-examination. The same result obtains here and the matter will have to be reversed and remanded for new trial.
During the police investigation of this case, Cruz Martinez was given a polygraph examination. When the polygraph examiner questioned him concerning certain of his responses which the examiner felt were inaccurate or deceptive, Martinez changed his story in some respects. In preparing to impeach the credibility of Martinez' testimony at trial by cross-examining him on the changes in his story, counsel for defendant sought permission to include in his cross-examination inquiries concerning the polygraph examination. Such inquiries, he felt, would demonstrate the reason for the change in the witness's story and thus the unreliability of his testimony. The trial court ruled that evidence of the polygraph examination was inadmissible. Defendant Melendez contends that this ruling constituted a denial of his Sixth Amendment right of full cross-examination.
Absent a stipulation, e. g., State v. Seebold, 111 Ariz. 423, 531 P.2d 1130 (1975), evidence of or reference to a polygraph test is inadmissible for any reason. State v. Marquez, 113 Ariz. 540, 558 P.2d 692 (1976); State v. Bowen, 104 Ariz. 138, 449 P.2d 603 (1969), cert. den. 396 U.S. 912, 90 S.Ct. 229, 24 L.Ed.2d 188 (1969); State v. Valdez, 91 Ariz. 274, 371 P.2d 894 (1962).
The inadmissibility of polygraph tests applies to parties and witnesses alike. Valdez, supra. We note that Melendez was otherwise free to and did interrogate Cruz Martinez regarding the changes in his story, but only reference to the polygraph examination was excluded. Melendez was not
prejudiced and we find no error. DENIAL OF MOTION FOR MISTRIAL BASED ON A JUROR'S OBSERVATION OF THE DEFENDANT IN HANDCUFFS
On the morning of the sixth day of trial, counsel for defendant made a motion for mistrial based upon the defendant's uncontested avowal that after adjournment on the previous afternoon, one of the jurors had observed him and his codefendant being escorted back to jail while handcuffed together and had, in fact, crossed the street with them. The trial court denied the motion for mistrial and the defendant contends on appeal that this denial constituted reversible error.
Since this matter will have to be retried, we do not need to discuss this matter on appeal as it is not likely to occur again.
There was ample evidence that both defendants had been drinking heavily prior to and during the crime. Defendant requested an instruction on intoxication which was refused. Defendant Melendez contends on appeal that this was reversible error. We agree.
We have discussed this issue in the companion case of State v. Morales, supra, filed this day, and we there held it was reversible error to not instruct on voluntary intoxication based upon the...
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