State v. Sanchez

• Decision Date: 31 July 1981
• Docket Number: CA-CR,No. 2,2
• Citation: State v. Sanchez, 130 Ariz. 295, 635 P.2d 1217 (Ariz. App. 1981)
• Parties: The STATE of Arizona, Appellee, v. Manuel Silvas SANCHEZ, Appellant. 2259.
• Court: Arizona Court of Appeals

Page 1217

635 P.2d 1217

130 Ariz. 295

The STATE of Arizona, Appellee, v. Manuel Silvas SANCHEZ, Appellant.

No. 2 CA-CR 2259.

Court of Appeals of Arizona, Division 2.

July 31, 1981.

Rehearing Denied Oct. 2, 1981.

Review Denied Oct. 20, 1981.

Robert K. Corbin, Atty. Gen., by William J. Schafer, III, and Gary A. Fadell, Asst. Attys. Gen., Phoenix, for appellee.

Frank P. Leto, Tucson, for appellant.

OPINION

BIRDSALL, Judge.

Appellant was convicted of all the charges against him: burglary in violation of A.R.S. § 13-1508, two counts of kidnapping, A.R.S. § 13-1304, sexual assault, A.R.S. § 13-1406 and aggravated assault, A.R.S. § 13-1204(A)(2) and (B). The jury found that an allegation of the dangerous nature of the offenses was true and appellant was given the presumptive sentence for each crime, that is, 7.5 years for the aggravated assault and 10.5 years for each of the other convictions. The court ordered that the sentences for Counts 3, 4 and 5 which involved the female victim, Brenda Barber, be served consecutive to the sentences on Counts 1 and 2 in which the victim was Phillip Bower.

Appellant and the two victims were neighbors in a trailer park in Tucson. The offenses were committed in the early morning hours in the victims' trailer home. Shortly before midnight, appellant came to the trailer. Phillip was awake watching television and Brenda was asleep in the only bedroom at the rear of the home. Although the three persons had seen one another on various occasions before, appellant and Phillip had just met that evening at the "landlord's" house. The two men visited for approximately one hour. Their conversation included the possible purchase of Phillip's car by appellant. A possible reason for the sale of the car was to enable Phillip to pay overdue rent to the landlord. Appellant's conduct changed abruptly. He pulled a knife, bound and gagged Phillip, went into the bedroom with the knife, and assaulted Brenda. After several minutes of sexual activity, during the first part of which Brenda assumed appellant was Phillip, the two came back from the bedroom and both were naked. Brenda managed to escape out the trailer door with appellant pursuing her. She woke neighbors. Phillip freed himself and called the police. Appellant was arrested and identified at a showup, even though he had shaved his beard in the interim.

On appeal appellant raises several issues:

1) A violation during trial of his Fifth Amendment right to remain silent;

2) The reading of the testimony of a witness to the jury during its deliberations;

3) The admission of appellant's statements to Phillip about prior bad acts;

4) The admission of photographs of appellant's tattoos;

5) The admission of a tape recording not previously disclosed;

6) The court's conduct of the trial; and

7) Imposition of consecutive sentences.

We will consider these issues in the order listed.

Fifth Amendment

Unlike the usual problem where a defendant's exercise of his right to remain silent occurs during police questioning, here appellant did not talk about the offenses with a friend who visited him at the jail. The state called the friend, the landlord at the trailer court, as a prosecution witness. During his examination it was developed that he was not only a friend of appellant but was also related by marriage. In cross-examination by defense counsel, he testified that he saw appellant after his arrest at the trailer court and that appellant told him, "I don't know what's coming off". Actually the witness answered, "That's exactly what he (appellant) said" in response to a leading question from defense counsel. On redirect the prosecutor established that the witness had visited appellant twice at the jail while in custody on these charges, on June 1st and 15th. Referring to the visit on the 1st, he was asked, "What did Mr. Sanchez tell you about the case at that time?". The witness responded, "He wouldn't talk about it." This was followed by the following questions and answers:

"Q. Okay, didn't talk about anything about it or anything?

A. He would never talk about it. We just talked about what he needed and what to do about his business and stuff.

Q. Then you went back June 15th, is that correct?

A. Probably so.

Q. At that time did you talk about the case?

A. He wouldn't talk about the case."

Defense counsel then interrupted with a request to approach the bench and in an unreported bench conference (the record was made at the next recess) the court sustained an objection to any further questioning concerning the jail visits. Appellant's counsel then, at the next opportunity, moved for a mistrial on the grounds that he had advised appellant not to discuss the case with anyone and that this questioning constituted a comment on his exercise of the right to remain silent. The trial court observed that the objection was sustained at the bench as soon as it was raised and denied the motion. No motion to strike the objectionable evidence was made and the court gave no special admonishment or instruction to the jury. After the objection was sustained, the prosecutor refrained from any further questioning on the subject and it was not mentioned in argument.

In State v. Izzo, 94 Ariz. 226, 383 P.2d 116 (1963) our Supreme Court held that silence does not amount to an admission against interest where it is on the advice of counsel. In that case the trial court ordered that testimony of a police officer that he had asked defendant questions which he refused to answer be stricken and admonished the jury. The opinion holds that the nature of the testimony together with the court's action was sufficient to neutralize any unfavorable inference.

In the instant case the trial court's ruling sustaining the objection was proper. The state may properly elicit testimony of a defendant's silence when accused by a person not associated with law enforcement if the defendant is not in custody for or charged with the crime. State v. McAlvain, 104 Ariz. 445, 454 P.2d 987 (1969). However, at the time of the jail visits, appellant was both charged and in custody. The fact of his silence on two occasions was clearly inadmissible even though it may have been proper redirect examination based on the cross-examination concerning appellant's statement to the witness at the scene of his arrest.

Was it reversible error for the trial court to deny the motion for mistrial? We find that it was not. Generally, a defendant may not permit evidence to be introduced without objection and later make its admission grounds for a mistrial. State v. Williams, 107 Ariz. 262, 485 P.2d 832 (1971). However, if the admission of the testimony constitutes fundamental error then the mistrial should be granted. Cf. id. State v. Williams, supra (having found no fundamental error, a claimed error unsupported by a timely objection was not considered on appeal).

We find in this instance that the objectionable testimony does not constitute fundamental error. First, we observe that appellant's silence was not in response to questioning by a law enforcement officer. "The purpose of the 5th amendment to the United States Constitution is to protect persons against inducements and compulsions exerted by the government which might compel self-incrimination". State v. McAlvain, 104 Ariz. at 447, 454 P.2d at 989.

Next we note that the testimony elicited does not involve silence in the face of an accusation. Cf. State v. Calhoun, 115 Ariz. 115, 563 P.2d 914 (1977) (this case involved the defendant's silence in the face of an accusation by a polygraph examiner). Also, the witness did not even testify that he actually asked appellant about the event. The trial court's decision not to grant a mistrial will be reversed only if the matter urged as grounds was palpably improper and clearly injurious. State v. Coleman 122 Ariz. 130, 593 P.2d 684 (App.1978), approved in part, disapproved in part on a different issue, 122 Ariz. 99, 593 P.2d 653 (1978). We find this rule particularly appropriate given the facts of this case. The testimony was not palpably improper nor was it clearly prejudicial.

Re-reading of the Testimony

Appellant next contends that the reading of the testimony of a state's witness to the jury in his absence violated his Sixth Amendment right to confrontation and violated Rule 19.2, 17 A.R.S. Rules of Criminal Procedure. ¹

The record shows that sometime after the jury retired the foreman sent a note to the trial judge, "We would like to review the testimony of Dr. Vern Katz". The judge notified counsel in the courtroom without the jury or appellant present. Defense counsel objected on the grounds that the jurors should rely on their own memories and the entire testimony of the trial should be read if any is read.

The court determined to have the testimony of the one witness read, saying: "I'll let it be done. Unless counsel insists I would just, because I think that it is short, I would just let the Reporter go back in with the Bailiff and to read that testimony only with the Bailiff instructing them not to say anything while he's doing it and for the Bailiff and the Court Reporter to withdraw as soon as that's done. Is that all right?". Counsel for the state and appellant each agreed.

The next words in the transcript are: "(Whereupon the Reporter read to the jury the complete testimony of Vern Katz)". Sometime after this the jury returned their verdicts.

We agree that this procedure was improper and a violation of appellant's constitutional right to be present. Bustamante v. Eyman, 456 F.2d 269 (9th Cir. 1972); State v. Perez, 115 Ariz. 30, 563 P.2d 285 (1977); State v. Armenta, 112 Ariz. 352, 541 P.2d 1154 (1975). And since appellant had no personal notice of the proceeding and his right to be present he cannot be held to have waived his presence. See State v. Armenta, supra. Bustamante v. Eyman set aside the Arizona Supreme Court decision in State v. Bustamante, 103 Ariz. 551, 447...