State v. Schrock

• Decision Date: 31 March 1986
• Docket Number: No. 6198,6198
• Parties: STATE of Arizona, Appellee/Cross-Appellant, v. Lee Arthur SCHROCK, Appellant/Cross-Appellee.
• Court: Arizona Supreme Court

Page 1049

719 P.2d 1049

149 Ariz. 433

STATE of Arizona, Appellee/Cross-Appellant, v. Lee Arthur SCHROCK, Appellant/Cross-Appellee.

No. 6198.

Supreme Court of Arizona,

In Banc.

March 31, 1986.

Robert K. Corbin, The Atty. Gen. by William J. Schafer, III, and Diane M. Ramsey, Asst. Attys. Gen., Phoenix, for appellee/cross-appellant.

Poore & Riddle by P. Donovan Riddle, Tucson, for appellant/cross-appellee.

CAMERON, Justice.

The defendant, Lee Arthur Schrock, was convicted of theft of property with a value greater than one thousand ($1000) dollars, A.R.S. § 13-1802(C), on 28 September 1983. In a later trial on 23 November 1983, he was also convicted of armed robbery, A.R.S. § 13-1904, and first degree murder, A.R.S. § 13-1105. These convictions all arose from one series of events. Defendant was sentenced to five years for the theft, twenty-one years for the armed robbery and received life imprisonment on the murder conviction, all to be served concurrently. Defendant appeals his convictions and seeks review of the denial of his Rule 32 petition. These matters have all been consolidated in this court. We have jurisdiction pursuant to art. 6 § 5(3) of the Arizona Constitution and A.R.S. §§ 13-4031, 13-4035.

The defendant raises the following issues for review:

A. Pretrial

1. Did the court of appeals err in vacating the trial court's order precluding certain state witnesses from testifying due to late disclosure by the prosecutor?

2. Did the trial court err by failing to determine sufficiently either the probative value or the prejudicial effect of allowing defendant to be impeached by his prior convictions?

B. Trial

1. Did the trial court violate defendant's right to confront the witnesses against him when it limited the cross-examination of a state witness?

2. Did the prosecutor impermissibly comment on defendant's failure to testify during his closing argument thereby necessitating a mistrial?

3. Is it reversible error for a judge, previously recused from the case pursuant to Rule 10.2, to interpret a jury instruction and to receive the verdict?

4. Was the jury instruction on felony murder, as modified, an incorrect statement of the law?

C. Post Trial

1. Did the trial court err in denying defendant's Rule 32 petition to expand the record concerning the prosecutor's interview of defendant prior to sentencing without notification to defendant's counsel?

2. Did the trial court err in denying defendant's Rule 32 petition based on ineffective assistance of counsel?

The facts follow.

Early in the morning of 19 November 1982, the body of a man, later identified as Morris Reed, was found in the desert about three miles from Old Tucson. The victim was sixty-four years old and suffered from severe emphysema and heart disease. It was eventually concluded that the victim had died from head injuries, including a hinge fracture of the skull. Police found two blood-stained rocks with hair stuck to them that were probably used to inflict these injuries. Other physical evidence revealed that the victim had been dragged, had suffered fractures to his sternum and ribs, had received defensive-type cuts on his hands and other cuts on his neck, probably from a knife. The time of death was estimated to have been between 1:00 and 4:00 in the morning.

At approximately 9:40 p.m. that same day, defendant and his girlfriend were stopped for speeding in what was later determined to be the victim's car. Defendant had no driver's license or registration, but said the car belonged to his friend, Morris Reed. While defendant was arrested as a result of this stop (for giving false information to a police officer and on an outstanding warrant for a dog leash violation), he was quickly released because the police did not know that Morris Reed was the victim of the earlier homicide.

Later, after police found out about the homicide and began to search for Morris Reed's car, it was discovered abandoned in San Jose, California. Witnesses identified defendant as the person who had abandoned the car, after removing and selling the tires. Further, inside the car police found the paperwork from defendant's speeding ticket and arrest, plus defendant's fingerprint on a beer glass in the car.

Defendant was arrested on 7 December 1982, in Tucson. He denied committing the murder and said he had borrowed the car from Gilbert Hernandez, who owed defendant money. Defendant was charged with first degree murder, theft of property over $1000, and armed robbery.

Defendant's first trial resulted in a mistrial. At the second trial, defendant was convicted of theft but the jury could not reach a verdict as to the murder and armed robbery counts.

Following a third trial, defendant was convicted of first degree murder and armed robbery. At this trial defendant's girlfriend, who was a prostitute and heroin addict, testified that defendant told her that he and Gilbert had "fucked somebody over." Another witness, Jose Alvarez, a burglar and known "snitch", claimed defendant had confessed to him while they were in jail together.

A. Pretrial

1. Preclusion of witnesses

Defendant argues that the court of appeals erred when it reversed the trial court's order excluding Michael Mata and Jose Alvarez from testifying because of the prosecutor's wilfully tardy disclosure of them as witnesses.

Originally, defendant was to be tried on 16 August 1983, with all witness interviews to be completed by 29 July 1983. A motion for sanctions was filed by the defense on 2 August 1983, because the state had neither provided witness interviews, nor disclosed a witness, Michael Mata, until 29 July 1983. Mata had been interviewed by the state on 15 July 1983.

Upon learning a motion for sanctions was to be filed, the state on 2 August 1983, disclosed Jose Alvarez. The state had known of this witness since 11 July 1983. In response, defendant filed a second motion for sanctions on 3 August 1983.

The state claimed it failed to timely disclose these witnesses, both of whom defendant allegedly confessed to while incarcerated, because the defendant had threatened another state witness and they (the undisclosed witnesses) were essential to the ongoing investigation of this threat. The trial court ordered the testimony of both witnesses precluded stating, "you take a calculated risk when you make those decisions as to whether or not you wanna investigate another offense and not comply with the obligations that you have in this case." The court of appeals, on a special action brought by the state, reversed the trial court stating:

It appearing that the trial court abused its discretion in precluding the witnesses Michael Mata and Jose Alvarez from testifying because the State acted in good faith in delaying disclosure until two weeks before trial and because less stringent actions are available, e.g., a continuance if necessary, see State v. Smith, 123 Ariz. 243, 599 P.2d 199 (1979); therefore

The order of preclusion is vacated and set aside.

Generally, the appropriate sanction for the violation of Rule 15 is left to the sound discretion of the trial court. State v. (Joe U.) Smith, 140 Ariz. 355, 681 P.2d 1374 (1984), State v. (Joseph Clarence Sr.) Smith, 123 Ariz. 243, 599 P.2d 199 (1979), and State v. Clark, 112 Ariz. 493, 543 P.2d 1122 (1975).

We have stated:

The trial court, however, should seek to apply sanctions that affect the evidence at trial and the merits of the case as little as possible, since the Rules of Criminal Procedure are designed to implement, and not to impede, the fair and speedy determination of cases. Prohibiting the calling of a witness should be invoked only in those cases where other less stringent sanctions are not applicable to effect the ends of justice. To be effective, discovery rules must be applied with equal force to both parties.

We, therefore, hold that prior to precluding either party's witnesses, as a discovery sanction, the court must make an inquiry into the surrounding circumstances. Failure of the trial court to do so constitutes error. The inquiry should determine if less stringent sanctions can be used. The court should also consider how vital the precluded witness is to the proponent's case, whether the opposing party will be surprised and prejudiced by the witness' testimony, whether the discovery violation was motivated by bad faith or wilfulness, and any other relevant circumstances.

State v. (Joseph Clarence, Jr.) Smith, 123 Ariz. at 252, 599 P.2d at 209 (1979) (footnotes and citations omitted). See also State v. (Joe U.) Smith, 140 Ariz. at 359, 681 P.2d at 1378 (1984). In the instant case, it appears that the trial judge neglected to use the less stringent sanctions available. The court of appeals was correct in its ruling.

2. Impeachment by prior convictions

Defendant claims the trial court made an insufficient inquiry into the probative value and prejudicial effect of allowing him to be impeached by his prior convictions. As a result of the trial court ruling, defendant chose not to testify. By his decision not to testify, defendant has waived any argument that the trial court erred in its decision to allow him to be impeached by his prior convictions. State v. Correll 148 Ariz. 468, 715 P.2d 721 (1986); State v. Allie, 147 Ariz. 320, 710 P.2d 430 (1985) (both relying on Luce v. U.S., 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984)).

B. Trial

1. Limitation of cross-examination

Defendant contends his sixth amendment right, U.S. Const. amend. VI., to confront the witnesses against him was violated when the trial court sustained an objection limiting the cross-examination of Jose Alvarez, a state witness. Specifically, defendant claims it was error for the trial court to deny him the right to cross-examine Alvarez concerning the "explanation" Alvarez gave police upon his arrest for armed burglary.

The defense was allowed to elicit several facts by which the jury could assess Alverez's credibility and motive...