State v. Settle
| Decision Date | 17 January 1975 |
| Docket Number | No. 2953,2953 |
| Citation | 531 P.2d 151,111 Ariz. 394 |
| Parties | STATE of Arizona, Appellee, v. Wayne Earl SETTLE, Appellant. |
| Court | Arizona Supreme Court |
Bruce E. Babbitt, Atty. Gen., by Stanley L. Patchell, Asst. Atty. Gen., Phoenix, for appellee.
Robert L. Storrs, Phoenix, for appellant.
The defendant was convicted by a jury of two counts of first degree rape and two counts of kidnapping. He was sentenced to terms of not less than 30 years nor more than life on each count of rape, and of not less than 5 years nor more than 10 years on each count of kidnapping, all sentences to run concurrently. From the judgment of conviction and sentences, he now appeals.
The first contention is that it was error for the court to have refused to allow defense counsel to question the prosecuting witness concerning her alleged prior unchaste acts. From the transcript of record before us, however, it is apparent that counsel misunderstood the court. The trial judge made it clear that he was sustaining the objection to the line of questioning at that time because the issue of consent had not yet been raised. The judge did not foreclose all questioning on the issue and, in fact, evidence of the prosecuting witness' prior acts was later brought out in other testimony.
The prosecution called Gerald Smith as a witness. Smith had previously pled guilty to charges arising out of the same incident. Counsel and the trial judge anticipated that Smith would seek to claim the Fifth Amendment privilege against self-incrimination. There being no reason for invoking the privilege in this situation, the trial court, in the presence of the jury, ordered Smith to testify. Smith refused and was dismissed. The defendant claims that it was reversible error for the prosecution to have called Smith as a witness, knowing he would refuse to testify.
It is not necessarily error to call a witness involved in the same offense with which the defendant is charged. State v. Cota, 102 Ariz. 416, 432 P.2d 428 (1967). We have cited with approval certain criteria from Fletcher v. United States, 118 U.S.App.D.C. 137, 332 F.2d 724 (1964), in State v. Skinner, 110 Ariz. 135, 515 P.2d 880 (1973). In Fletcher, a conviction was reversed because a witness' refusal to testify added substantial weight to the Government's case in a manner not subject to cross-examination. The defendant was unfairly prejudiced thereby. In that case, the prosecution and court knew the witness would claim the Fifth Amendment privilege but, unlike this situation, could not be ordered to testify. Furthermore, the witness in Fletcher was a major link in the Government case and the prosecution's questions depicted the offense about which the witness refused to speak. In the instant case, Smith was a minor witness and the few questions asked of him in no way suggested the offense. There was no error.
In examining the defendant, it came out that Smith had pled guilty to a charge for which the defendant was also being tried. This was not a reversible error. The defendant volunteered this as unresponsive information to a proper question. No objection was made by defense counsel at that time, and it cannot now be first raised as error on appeal. State v. Holmes, 110 Ariz. 494, 520 P.2d 1118 (1974).
Testimony from the defendant and two additional witnesses suggested that the defendant had threatened Smith if he testified. It is relevant in a criminal case to show that the defendant sought to suppress evidence adversely affecting him and it is therefore admissible to offer proof of conduct indicating a consciousness of guilt such as threats against a witness. State v. Adair, 106 Ariz. 4, 469 P.2d 823 (1970). The trial judge committed no error in allowing testimony on that issue.
Defense counsel sought to have the jury given a cautionary instruction to the effect that in a...
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State v. Gretzler
...caution and weighed with great care." This instruction was properly refused as an improper comment on the evidence. State v. Settle, 111 Ariz. 394, 531 P.2d 151 (1975). See Art. 6, § 27, Arizona The trial court also refused defense instruction Number 34 which stated: "You are instructed tha......
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Lopez v. State
...and should be treated by both the court and the jury just as other witnesses are treated-no better and no worse. In State v. Settle, 1975, 111 Ariz. 394, 531 P.2d 151, defense counsel sought to have the jury given a cautionary instruction in a rape case to the effect that the testimony of t......
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State v. Williams, CR-93-0138-AP
...defendant sought to suppress evidence adversely affecting him is relevant to show a consciousness of guilt. State v. Settle, 111 Ariz. 394, 396, 531 P.2d 151, 153 (1975); see also State v. Haymon, 616 S.W.2d 805, 806-07 (Mo.) (holding that defendant's attempt to shoot a witness is relevant ......
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State v. Smoot
...cases. Recent cases have concurred with the majority view and have disapproved of the use of such an instruction. State v. Settle, 111 Ariz. 394, 531 P.2d 151 (1975); Taylor v. State, 257 Ind. 664, 278 N.E.2d 273 (1972); State v. Feddersen, 230 N.W.2d 510 (Iowa 1975); State v. Wilder, 4 Was......