State v. Roberts
| Decision Date | 27 September 1983 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 139 Ariz. 117,677 P.2d 280 |
| Parties | STATE of Arizona, Appellee, v. Arlie Ray ROBERTS, Appellant. 5959. |
| Court | Arizona Court of Appeals |
Defendant Roberts was indicted by the Maricopa County Grand Jury on two counts of aggravated assault and one count each of child molestation, sexual abuse, and burglary in the second degree. Following a jury trial, the defendant was found guilty of two counts of aggravated assault. He was sentenced to concurrent prison terms of two and one-half years and seven and one-half years. In reversing the guilty verdicts and remanding for a new trial, we discuss the following two issues on appeal:
(1) Whether the trial court erred by denying defendant's request for a transcript of the in camera examination of the victim's competency; and,
(2) Whether the court erred by denying defendant's request to introduce expert testimony of a psychologist to impeach the victim's credibility.
The facts necessary to a resolution of this matter are as follows. The victim (referred to as Miranda for ease of discussion), a mildly retarded nine year old girl, was living with her older sister, Linda Garcia, in Garcia's mobile home. On September 6, 1981, Garcia left Miranda with a babysitter while she went shopping. Defendant, who was the babysitter's boyfriend, allegedly made two separate visits to the mobile home. On the second visit he allegedly assaulted Miranda. The babysitter did not testify at trial. Based upon Miranda's testimony and her two separate statements to police officers, it appears the defendant threw her against the wall of the mobile home, threatened her with a knife, and forced her to take her clothes off. It was also alleged that he touched her private parts. Miranda sustained a bloody nose and an injury to her knee as a result of the altercation with the defendant. The defendant admitted entering the trailer one time, but denied assaulting Miranda. He called several alibi witnesses at trial, partially accounting for his whereabouts on the date in question.
Pursuant to the defendant's motion for a mental examination, two psychologists were appointed to examine Miranda. Both Dr. Donald Tatro and Dr. Northcutt Cox found her mildly retarded. However, although Dr. Cox found her competent to testify at trial, Dr. Tatro concluded that she was incompetent to testify. In order to assist him in determining whether Miranda was in fact competent to testify, the trial judge questioned Miranda in his chambers without the presence of counsel. Defense counsel had previously advised the court that he had no objection to the in camera examination, but reserved the right to question Miranda at a later date. After the in camera questioning, both counsel questioned the victim. Questioning was limited by the court to matters that had not been covered during the in camera examination. At the conclusion of counsel's questioning, the court ruled that Miranda was competent to testify. Defendant thereafter requested a transcript of the in camera proceedings, purportedly for use in cross-examining Miranda at trial. The court denied the request, reasoning that the defendant had use of the preliminary hearing transcript, and concluded it would be inappropriate to release a copy of the in camera transcript.
On appeal, the defendant claims his right to equal protection of the law was violated because he was denied a free transcript of the in camera proceeding. The defendant's reliance on Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971) and State v. Tomlinson, 121 Ariz. 313, 589 P.2d 1345 (App.1978), is misplaced. In Britt, the United States Supreme Court relied on Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1955), and its progeny in holding that equal protection requires the state to provide an indigent defendant with the basic tools of an adequate defense on appeal when those tools are available for a price to other prisoners. The court's decision to deny the defendant's request in the instant case, however, was not based upon an inability to pay for the transcript. Thus, neither Britt nor Tomlinson is applicable to the instant case.
The defendant also claims that the court's decision denied him his right to due process of law, to confront witnesses, and to effective assistance of counsel. Generally speaking, whether a criminal defendant is entitled to discover certain evidence is a matter within the trial court's discretion. See Zarate v. Jennings, 17 Ariz.App. 401, 498 P.2d 475 (1972). As a matter of fundamental fairness, "justice dictates that the defendant be entitled to the benefit of any reasonable opportunity to prepare his defense and to prove his innocence." State v. Superior Court, 103 Ariz. 465, 468, 445 P.2d 441, 444 (1968) (emphasis in original). Defendant seemingly argues that he was entitled to a transcript of the in camera proceedings as a matter of law. We do not reach this issue, however, because our review of the transcript leads us to conclude that the defendant's defense was not affected by the unavailability of the transcript. Thus, any error committed was clearly harmless and will not justify a reversal. State v. Lawrence, 123 Ariz. 301, 599 P.2d 754 (1979).
We also reject defendant's contention that he was deprived of his right to confront witnesses. The primary objective of the Sixth Amendment's Confrontation Clause is to prevent depositions or ex parte affidavits from being used against the defendant in lieu of the witness testifying. Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); State v. Jerousek, 121 Ariz. 420, 590 P.2d 1366 (1979). The accused must have the opportunity of compelling the witness "to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief." Douglas v. Alabama, 380 U.S. at 419, 85 S.Ct. at 1077, 13 L.Ed.2d at 937.
Miranda did testify in court against the defendant. Moreover, the record discloses that defendant's counsel conducted extensive cross-examination of Miranda. Thus, because defendant was allowed to both confront and cross-examine her, his rights to confront his accusers were not unduly restricted. See State v. Jerousek.
Finally, as we have already stated, the trial court's decision did not in any way affect the defendant's trial preparation. We have reviewed the record and conclude that the defendant was not denied effective assistance of counsel.
At trial, the defendant sought to call Dr. Tatro, the psychologist who had concluded that Miranda was incompetent, for purposes of impeaching Miranda's credibility. As an offer of proof counsel relied mainly upon Dr. Tatro's psychological report, originally submitted for purposes of determining Miranda's competency to testify. Dr. Tatro's report was based upon a series of psychological tests, including the Bender Visual Motor Gestault Test, the House-Tree-Person Test, the Make-a-Picture Story Test, and the Wechsler Intelligence Scale for children. The results of the tests showed that Miranda had an I.Q. of sixty-five, indicating a mental deficiency. In his report, Dr. Tatro stated that the test results were consistent with the probability that Miranda has an "organically-based learning disability" which severely limits her verbal intellect. In support of his conclusion that she would probably not be a competent or reliable witness, Dr. Tatro reported that Miranda had a clearly defective memory, that her verbal ability was so limited that she could not understand any but the simplest of questions, that she was capable of and had during testing given answers to questions she did not understand, and was unusually preoccupied with fantasies of hostility and violence. He concluded by stating that he would be even more concerned about the reliability of her testimony because of her preoccupation with ideas that men and women hurt each other. Defense counsel emphasized to the court that it was very important for the jury to know the results of the drawing tests administered by Dr. Tatro because they were consistent with those obtained from children four or five years younger than Miranda, indicating that her mental age was actually four or five years, compared to her chronological age of nine years.
In opposing the motion, the state advised the court it would offer in rebuttal the testimony of a learning disability resource teacher who had tested Miranda on a number of occasions and would conclude that she did not have a tendency to fantasize.
The trial court offered a number of reasons in support of its denial of the defendant's motion. Initially, the court noted that a witness' competency is a legal question which need not be submitted to the jury. It also reasoned that the jury would have an adequate basis from listening to Miranda's testimony to determine whether she was telling the truth. It also stated that expert testimony was simply not proper in this type of case. Finally, the court concluded that even if the testimony was relevant, the prejudicial effect would outweigh any probative value because the testimony would confuse the jury and distract them by emphasizing a collateral issue.
Initially, it is important to distinguish between Miranda's competency to testify and her credibility as a witness. Competency has to do with a witness' capacity to observe, recollect and communicate the subject of the testimony. A.R.S. §...
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