State v. Navallez, 2
| Decision Date | 25 November 1981 |
| Docket Number | No. 2,CA-CR,2 |
| Citation | 639 P.2d 362,131 Ariz. 172 |
| Parties | The STATE of Arizona, Appellee, v. Armando Xavier NAVALLEZ, Appellant. 2330. |
| Court | Arizona Court of Appeals |
The appellant was convicted of theft of property having a value over $100 and less than $1,000, a class 4 felony, with a prior felony conviction. On appeal he argues that the trial court committed reversible error in:
1) Precluding a prior out-of-court statement of a prosecution witness,
2) Failing to give a requested "identification" instruction, and
3) Denying his motion to suppress identification evidence. We find no reversible error and affirm.
This crime was committed in broad daylight at Zody's department store in Tucson when the appellant took the victim's purse from her shopping cart and ran. The victim witnessed the crime and immediately shouted that her purse had been taken. Several persons gave chase but the appellant was able to get away in his borrowed car. Two of the men who had run after him reported the license number to the police who then located the vehicle at the residence of its owner. The appellant was apprehended leaving that residence through a back window. He was not wearing the same clothes that the witnesses at the scene remembered. The clothing described by the witnesses was not found in the residence or the car.
The police then took the victim and three witnesses to view the car and the appellant. While riding together they discussed their respective observations of the crime. The car and the appellant were at the residence. The appellant was handcuffed and standing with two other males when they viewed him. The two men bore little resemblance to the appellant. Although the victim could not identify the appellant either then or at trial since she "did not get a good look at him when he took her purse," the other two witnesses did identify him at the residence.
Richard Eichhorn was an identification witness called by the state. He was in Zody's when the purse was taken and went to the scene of the arrest with the police. There was evidence at trial that he had been offered a reward by the victim. In cross examination he was asked if he had talked on the phone with an investigator for the public defender about the case. He admitted that the investigator called him but said "she came on so strong" he didn't talk to her. The investigator was called as a defense witness. She testified:
She was then asked:
The court sustained an objection to that question. An offer of proof by appellant's counsel demonstrated that the answer would have been:
"I have to check with somebody about whether I am going to talk with you."
Appellant makes the following argument: This testimony should have been admitted; it was not hearsay since it was a prior inconsistent statement. Rule 801(d)(1), Rules of Evidence, 17A A.R.S. Appellant claims this statement to the investigator contradicted his testimony that he did not talk with her because "she came on so strong." He argues it was not necessary to ask a warning question as a predicate to the question.
As authority, appellant cites two federal cases interpreting Federal Rule of Evidence 613(b): United States v. Barrett, 539 F.2d 244 (1st Cir. 1976) and United States v. Bibbs, 564 F.2d 1165 (5th Cir. 1977). He also cites State v. Acree, 121 Ariz. 94, 588 P.2d 836 (1978). Although the court in Acree found it unnecessary to discuss the law in detail, the opinion clearly recognizes that it is not necessary that a witness be asked about prior inconsistent statements before extrinsic evidence of those statements may be admitted so long as the witness is given an opportunity to explain or deny the statements. 17A A.R.S., Rules of Evidence, rule 613(b). The Arizona rule is identical to the federal rule.
Bibbs actually involved a subsequent inconsistent statement claimed to have been made after the witness testified. The trial court admitted evidence of the statement in rebuttal by the prosecution. Although actually holding that federal rule 613(b) did not provide a procedure for the use of subsequent statements, the appellate court recognized that the rule does not require that impeachment foundation (the warning question) precede the testimony of the impeaching witness. The opinion states that rule 613(b) merely requires that the impeached witness be afforded an opportunity to explain or deny the inconsistent statement. The court noted that this could have been done by permitting the impeachment witness to be recalled in surrebuttal. It also cited federal authority holding that "trial courts have wide latitude in ruling on evidentiary questions."
Barrett quotes at length from the Reporter of the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States explaining the change in Rule 613(b). The opinion nevertheless recognizes that although good practice would still call for laying a foundation (the warning question) in most cases, "One is not absolutely required." Since the trial court in Barrett excluded the proffered impeachment testimony without any showing that the impeached witness would not still be available to explain or deny the apparent inconsistency, and with no justification based on judicial economy or convenience, the appellate court found error. It was then necessary to determine whether that error required reversal. Because the defense theory of the case rested on the notion that the three defense witnesses sought to be impeached were lying and because the impeachment evidence was of such a nature that their testimony might have been "substantially diminished," the appellate court found that this error did affect the substantial rights of the defendant and was therefore reversible.
Thus if we were to find error in the present case it would be necessary for us to determine if the offered testimony was of such consequence that the jury might have a reasonable doubt concerning the credibility of the state's witness which it might not entertain without that evidence. In Barrett the "inconsistent statements" were to...
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State v. Clary
...for admitting impeachment evidence is "that there be testimony inconsistent with prior statements"); State v. Navallez, 131 Ariz. 172, 174, 639 P.2d 362, 364 (App. 1981) (recognizing "the long established rule that in order for a prior statement to be admitted for impeachment it must direct......
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State v. Garcia-Galvez
...it to the jury to find beyond a reasonable doubt that Garcia had committed each element of the offense. See State v. Navallez, 131 Ariz. 172, 174-75, 639 P.2d 362, 364-65 (App. 1981). Reversal is therefore not warranted on this basis.CONCLUSION¶12 For the foregoing reasons, we affirm Garcia......
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...required. State v. Hines, 130 Ariz. 68, 633 P.2d 1384 (1981); State v. Acree, 121 Ariz. 94, 588 P.2d 836 (1978); State v. Navallez, 131 Ariz. 172, 639 P.2d 362 (App.1981). Furthermore, Packard's statements constituted a party admission pursuant to Rule 801(d)(2), Arizona Rules of Evidence, ......
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