State v. Morales

• Decision Date: 30 October 1978
• Docket Number: No. 3769,3769
• Citation: 587 P.2d 236,120 Ariz. 517
• Parties: The STATE of Arizona, Appellee, v. Joe Cota MORALES, Appellant.
• Court: Arizona Supreme Court

Page 236

587 P.2d 236

120 Ariz. 517

The STATE of Arizona, Appellee, v. Joe Cota MORALES, Appellant.

No. 3769.

Supreme Court of Arizona, In Banc.

Oct. 30, 1978.

Rehearing Denied Dec. 5, 1978.

Bruce E. Babbitt, Former Atty. Gen., John A. LaSota, Jr., Atty. Gen. by William J. Schafer, III, and R. Wayne Ford, Asst. Attorneys Gen., Phoenix, for appellee

Callahan, Cathcart & Gorman by Edwin F. Cathcart, Jr., Tempe, for appellant.

CAMERON, Chief Justice.

This is an appeal 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 take jurisdiction pursuant to A.R.S. § 13-1711 and Rule 26.15, Rules of Criminal Procedure, 17 A.R.S.

We are asked to decide the following questions:

1. Did the trial court commit reversible error in precluding defense counsel from attacking the credibility of witness Cruz Martinez by showing the punishment he might have received had he not agreed to testify against the defendant?

2. Did the trial court's refusal to permit the use of a witness's juvenile adjudication as a delinquent deprive the defendant of his constitutional right to cross-examine an accusing witness?

3. Did the trial court commit reversible error in allowing the introduction of an allegedly gruesome photograph into evidence?

4. Did the trial court commit reversible error in instructing the jury not to consider the effect of intoxication on the defendant's ability to form the requisite intent in the crime of murder by torture?

5. Did the trial court commit reversible error in refusing to give the jury the defendant's requested instruction and form of verdict for voluntary manslaughter?

6. Did the trial court err in denying the defendant's motion for judgment of acquittal on the murder by torture theory?

7. Did the trial court err in failing to direct a verdict of not guilty or acquittal on the premeditated first degree murder charge?

8. Did the trial court err in denying defendant's motion for mistrial based on two jurors' observation of a spectator's apparent attempt to intimidate the State's chief witness?

9. Did the trial court err in finding the existence of aggravating circumstance number 6: that the defendant committed the offense in an especially heinous, cruel or depraved manner?

10. Did the trial court err in denying defendant's motion to continue the sentencing?

11. Is Arizona's death penalty statute unconstitutional?

The facts necessary for a determination of this matter are as follows. At approximately 11:00 p. m. on 10 April 1976, two young men who were residents of a government housing project in Glendale, Arizona, Cruz Martinez and Tony Calistro, walked from the project area to a neighborhood Low Cost Market a few blocks away to The next morning Calistro's nude body was found in the climbing device in the park. In addition to numerous other injuries, the body had 19 stab wounds, 12 of which were non-superficial. After an investigation, Morales and Melendez were charged with first degree murder. Martinez, a minor, agreed to testify against Morales and Melendez in exchange for the county attorney's promise not to request that he be transferred to adult court for prosecution for murder. In the joint trial of Morales and Melendez, the State proceeded on a murder by torture theory as to both defendants as well as a premeditated murder theory as to Morales, the defendant herein. The jury found both Morales and Melendez guilty of first degree murder and after an aggravation and mitigation hearing, the trial court sentenced both to death.

purchase some beer. Outside the market they met two other men, Joe Morales (the defendant in this case) and Ruben Melendez, the codefendant. After some discussion, they entered the market and obtained some beer and a bottle of whiskey. The four returned to the project area and gathered in the backyard of Morales where they began drinking. There is evidence that considerable drinking had been done earlier in the day. Within a short time, Melendez and Morales began wrestling and "slap boxing." Calistro shouted encouragement to the participants, urging each to hit the other and commenting on Melendez's lack of prowess. Melendez responded to Calistro's antics by shoving him off his chair. After he got back up onto his chair, Calistro was again shoved to the ground. This time all three of the others jumped on him and hit him. Morales suggested that Calistro be stripped. Calistro's clothes were removed and he was carried across an alley to a park where he was placed on a merry-go-round and whirled around for about two minutes. He was then taken from the merry-go-round and beaten and kicked continuously by Melendez, Morales and Martinez. Melendez sodomized him. Morales apparently tried but was unsuccessful. Morales suggested that they "get something to stick up his ass." Martinez went back to Morales' house and returned with a garden hoe and a can of yellow paint. The hoe handle was rammed into Calistro's rectum and paint was poured all over his body including his face and mouth. Calistro was then carried to a cement climbing device in the park from which he was hung by his waist while his arms and legs were tied with his clothing. He was again sodomized by Melendez. Both Martinez and Melendez rammed the hoe handle into his rectum several times and Morales stabbed him. When the three left the victim, he was still struggling and breathing heavily. The three returned to Morales' backyard where they continued drinking beer. Morales said, "I stabbed him," and Melendez got angry saying "God-dammit, you didn't have to do that." Morales warned Melendez and Martinez not to say anything and then Morales stated, "I am going back to finish him off." The group then disbanded.

EXCLUSION OF REFERENCE TO WITNESS'S POSSIBLE DEATH PENALTY

The State's chief witness in this case, fifteen year old Cruz Martinez, had been a principal participant with the defendants in the activities resulting in the death of Tony Calistro. His testimony at trial was given pursuant to an agreement with the county attorney, approved by the judge of the juvenile court, which provided in substance that Martinez was to give a sworn statement of the events occurring on the night of the offense. If the county attorney determined from this statement that Martinez' testimony would be of "substantial aid" in the prosecution of Morales and Melendez, the State would withdraw its request that Martinez be transferred to adult court for prosecution for first degree murder along with defendants Morales and Melendez. Martinez was to enter an admission to an unrelated burglary charge and a "conditional" admission to a charge of second degree murder in juvenile court. Disposition of Martinez' case was to be postponed until after his testimony at trial " * * * great latitude should be allowed in the cross-examination of an accomplice or co-defendant who has turned State's evidence and testifies on behalf of the State on a trial of his co-defendant. * * *

Evidence of this agreement was presented at trial. The jury was also informed that as a result of the agreement, Cruz Martinez would be subject to the Department of Corrections only until his 21st birthday. In an effort to further attack his credibility by demonstrating a motive or interest in testifying as he did, defense counsel sought to bring out the fact that had Martinez been remanded to the adult court, he would have faced, upon conviction, the possible penalty of death or life in prison without possibility of parole for 25 years. The trial court precluded defense counsel for bringing this fact to the jury's attention through cross-examination of Martinez or his attorney. Defense counsel contends that this was reversible error. We agree. We have stated:

"While it is true that the extent of such cross-examination is with the sound discretion of the trial judge; nevertheless, if the trial judge has excluded testimony which would clearly show bias, interest, favor, hostility, prejudice, promise or hope of reward, it is error and will be ground for a new trial. (citations omitted)" State v. Holden, 88 Ariz. 43, 54-55, 352 P.2d 705, 713-714 (1960).

It appears from the record that the trial court's reason for precluding evidence of the penalty the witness could have received was to prevent the jury from learning of the penalty the defendants in this case might receive if convicted of first degree murder. Whatever merit this reason may have, it cannot outweigh the right of the defendant to cross-examine the State's major witness on what he expects in return for his testimony. The fact that the witness faced a possible death penalty if he did not testify for the State surely would be a factor if not the factor in the witness's decision to testify. The trial court's refusal to allow inquiry into the penalty the witness would have faced had he not agreed to testify was reversible error.

USE OF WITNESS'S JUVENILE RECORD TO IMPEACH HIS GENERAL CREDIBILITY

At trial, Ricky Amparana testified for the State that he saw the defendant, Cruz Martinez and one other individual whom he could not recognize, drinking together in the vicinity of the park in which the homicide occurred. He testified that while walking home from a party on the night in question, he met three people, two of whom he recognized as the defendant Morales and Cruz Martinez, in the vicinity of the park in which the victim was later found. He testified that he was invited to join them, but having already consumed more alcohol than his system could tolerate, he declined the invitation and proceeded home.

In 1973, Ricky Amparana had been adjudged delinquent following his entry of a plea of guilty to what would amount to the crime of burglary had he been an adult. Defense counsel sought to use this information for the purpose of attacking the witness's general credibility. The trial court refused to allow him to do so and on appeal the defendant contends...