State v. Shaw

• Decision Date: 30 January 1963
• Docket Number: No. 1265,1265
• Citation: 378 P.2d 487,93 Ariz. 40
• Parties: STATE of Arizona, Appellee, v. Richard SHAW, Appellant.
• Court: Arizona Supreme Court

Page 487

378 P.2d 487

93 Ariz. 40

STATE of Arizona, Appellee, v. Richard SHAW, Appellant.

No. 1265.

Supreme Court of Arizona, In Banc.

Jan. 30, 1963.

Alexander Russin, and Robert O. Barber, Tucson, for appellant.

Robert W. Pickrell, Atty. Gen., Jack I. Podret, Pima County Atty., and Sidney L. Kain, Deputy County Atty., for appellee.

BERNSTEIN, Chief Justice.

This is an appeal by Richard Shaw from a conviction of the crime of grand theft. The evidence adduced at the trial showed the following facts: During the evening of September 11, 1961, two officers of the Pima County Sheriff's office were driving in an unmarked car to investigate an occurrence unrelated to this case. As they passed the fenced equipment yard of the Burris-White Machinery Company they observed an automobile parked at the side of the road with a micro-midget racer protruding from the trunk compartment. One of the occupants of the automobile was motioning for traffic on the road to drive past the parked or slowly moving automobile. The officers made a U-turn to investigate and as they drew abreast of the automobile they flashed their spotlight on its occupants. The automobile drove off at high speed and a chase ensued.

During the chase, the racer fell from the trunk of the automobile. Shortly thereafter the officers discovered the automobile abandoned in an empty lot. The officers traced the registration to Joseph Brown, and subsequently took him into custody. He admitted his part in taking the racer from the Burris-White yard and implicated Ronald Alkire and the defendant.

Brown pleaded guilty to a charge of accessory after the fact to the crime of grand theft, and received a suspended sentence. Alkire and the defendant were tried for the crime of grand theft. Alkire was acquitted and a mistrial granted as to the defendant. At a second trial defendant was found guilty and now appeals.

Defendant assigns as error the trial court's refusal to admit into evidence in its entirety defendant's Exhibit A. Exhibit A consisted of a confession signed by Joseph Brown who appeared as a state's witness at Shaw's trial. The portions excluded consisted of statements by the witness that he had committed crimes other than the one for which he was arrested. The defendant argues that Brown's admission of other crimes makes him dependent upon the leniency of the law enforcement officials for whom he was testifying in this case, and that the fact of such admissions may be shown to establish bias. In State v. Holden, 88 Ariz. 43, 352 P.2d 705 (1960) and State v. Little, 87 Ariz. 295, 350 P.2d 756 (1960) we held that a party could establish, by means of cross-examination, the existence of facts of a like nature which tended to show bias. Here, however, the defendant sought to establish these facts by the introduction of extrinsic evidence, rather than by cross-examination of the witness whose bias he desired to show. This raises the question whether a foundation for the introduction of evidence showing bias of a witness must be laid by first cross-examining the witness himself. This court, in Ross v. State, 23 Ariz. 302, 203 P. 552 (1922) adopted, without extended discussion, the majority rule that such a foundation is required. We have taken this opportunity to re-examine the ruling in that case, and now reaffirm it. A minority of the courts (see Annot. 16 A.L.R. 984 (1922)) hold that it is not necessary to establish a foundation for extrinsic evidence of bias by cross-examination. Some draw distinction between statements showing bias and acts showing bias, and require a foundation only in the former case. We think this distinction too tenuous to be material. One purpose of the foundational cross-examination is to give the witness a fair opportunity to explain statements which, standing alone, tend to show bias, People v. Sweeney, 55 Cal.2d 27, 9 Cal.Rptr. 793, 357 P.2d 1049 (1961). We think a witness should have the same opportunity to explain equivocal acts which, is unexplained, tend to show bias. A second reason for the rule is to promote expediency in the conduct of trials. If facts showing bias are admitted by the witness, it is unnecessary to introduce the extrinsic evidence, McCormick, Evidence § 40 (1954); Ross v. State, supra. We think this is the principal justification for the rule, and if the court is satisfied that fairness will be maintained, it has discretion to dispense with the requirement of the foundational cross-examination where exceptional circumstances would make it unduly burdensome to require it (as, e. g. where the witness has been excused before the opposing party learns of facts showing bias, cf. State v. Carns, 136 Mont. 126, 345 P.2d 735 (Mont.1959)). We hold in this case it was not error to refuse to admit Brown's confession where there was no preliminary cross-examination of Brown in regard to the facts offered to show bias.

The defendant contends that he was improperly limited in his cross-examination of Brown as to the matters in the excluded portion of Exhibit A. He further contends that he was improperly limited in his cross-examination of another witness concerning the appearance of the defendant at the time he made oral confession, during a hearing before the court on the voluntariness of that confession. We are unable to find in the record any place where testimony on these matters was elicited by questions of defendant's counsel and excluded by the court. These assignments are without merit.

The defendant was limited by the court in his attempt to cross-examine the investigating officer in regard to the matter the officer was enroute to investigate at the time the automobile containing the racer was observed. He argues that he should have been permitted to continue this line of cross-examination to determine if the officer had prior information that the three youths were going to enter the Burris-White equipment yard. He cites State v. Holden, 88 Ariz. 43, 352 P.2d 705 (1960) where we said:

'A defendant in a criminal prosecution has an absolute right to cross-examine an adverse witness, and if at all within the proper bounds, such right may not be unduly restrained or interfered with by the trial court.' 88 Ariz. at 56, 352 P.2d at 715.

In response to questions which were permitted the witness testified that the case which he was investigating had no relationship to the charge against Shaw, and that he had no prior knowledge of an impending attempt to take the racer from the Burris-White yard. The defendant made no offer of proof to indicate what he expected the questioning to disclose. An absolute right to cross-examine 'within the proper bounds' does not license the defendant for a fishing expedition into completely irrelevant matter.

The defendant next contends that the trial court erred in considering the defendant's conduct as a juvenile in pronouncing sentence in violation of A.R.S. § 8-228 which states:

'B. The disposition of a child or of evidence given in the juvenile court shall not be admissible as evidence against the child in any proceeding in another court, * * *.'

Defendant in his brief states that at the time of pronouncing sentence the trial court received a report from the Adult Probation Officer of Pima County which contained a complete record of the defendant's activities as a juvenile offender. He further states that a transcript of the court's comments on sentencing will clearly reflect that the court considered and relied upon this report in setting the sentence. However, no such transcript was made a part of the record on appeal. We therefore consider the question of this use of juvenile records not appropriate to answer on the state of the record. Statements in the briefs do not substitute for evidence in the record. Hunter v. State, 43 Ariz. 269, 30 P.2d 499 (1934); cf. State v. Thomas, 81 Ariz. 124, 302 P.2d 261 (1956).

The defendant assigns as error the failure of the trial court to exclude evidence of the oral confession made by the defendant to the investigating officers after he was picked up by them. He contends that the confession was obtained during a period when the officers were violating A.R.S. § 8-221:

'A peace officer, other than the probation officer, who arrests a child under the age of eighteen years shall forthwith notify the probation officer, and shall make such disposition of the child as the probation officer directs.'

The circumstances surrounding the taking of the confession were these: The defendant was picked up by two police officers at his home about 12:30 or 1:00 a. m. These officers had Alkire and Brown in their custody at the time. Defendant dressed and agreed to go with the officers to the sheriff's office. During the ride to the sheriff's office the defendant complained of being nauseated and the car was stopped so that he could throw up outside of the car. Defendant then indicated that it would be some time before he had to throw up and the group proceeded to the sheriff's office. The officers commenced questioning Alkire and Brown and defendant was left to sit in an outer office. The defendant asked the officers twice to take him to the hospital and complained that he had the 'shakes' and was sick. One of the officers obtained two aspirin and gave them to the defendant. Defendant testified that he told the officers again that he had to throw up, that he was directed to a rest room where this was accomplished. Defendant took the stand and stated:

'Well, at first they tried to get me to admit to it. I told them I wouldn't. And so they just let me sit out in the office. I kept getting sick, feeling worse, and I told Bernal that I didn't feel good and would he please take me to the hospital. And he says, 'I can't take you to the hospital or anywhere until I get some kind of a statement out of you.' But he said he would go up and get me some aspirin.

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'Q Did they tell you what they were charging you with?

'A No they didn't.

'Q...