State v. Skinner

• Decision Date: 07 November 1973
• Docket Number: No. 2365,2365
• Parties: The STATE of Arizona, Appellee, v. Robert Lee SKINNER, Appellant.
• Court: Arizona Supreme Court

Page 880

515 P.2d 880

110 Ariz. 135

The STATE of Arizona, Appellee, v. Robert Lee SKINNER, Appellant.

No. 2365.

Supreme Court of Arizona, In Banc.

Nov. 7, 1973.

Rehearing Denied Dec. 12, 1973.

Gary K. Nelson, Atty. Gen., Phoenix, by John S. O'Dowd and Howard L. Fell, Asst. Attys. Gen., Tucson, for appellee.

Messing, Hirsh & Franklin, P.C., by Robert J. Hirsh, Tucson, for appellant.

CAMERON, Vice Chief Justice.

This is an appeal from a jury verdict and judgment thereon of guilty to the crimes of armed robbery, §§ 13--641 and 13--643(B) A.R.S., and first degree murder, §§ 13--451 and 13--452 A.R.S. The defendant was sentenced to concurrent terms of eight to ten years for the armed robbery and to life imprisonment for the murder. We are asked to answer the following questions on appeal:

A. As to evidentiary matters:

1. May a prior unsworn impeaching document of a State's witness be admitted substantively against a criminal defendant without violating the hearsay rule and the criminal defendant's right of confrontation?

2. Was it reversible error for the State to impeach its own witness with prior inconsistent statements?

3. Was the admission into evidence of four morbid autopsy pictures and a blood soaked shirt reversible error where a defendant did not dispute the fact that a murder was committed and the only issue for the jury to decide was whether the defendant had any connection with the commission of the homicide?

4. Did the court erroneously deny the defendant the right to present evidence of a State witness's motive, bias, and interest in testifying?

5. Did the admission into evidence of an accomplice's unsworn, out of court statement made at a time when the defendant was not present, violate the defendant's right of confrontation?

B. As to misconduct of counsel:

1. Was it reversible error for the prosecutor to call an accomplice to the stand, knowing that the accomplice would invoke the Fifth Amendment privilege not to testify in a case where the defendant's position was predicated on the mutual innocence of himself and the accomplice?

2. Was it prejudicial and reversible error for the prosecutor, in closing argument, to willfully misstate material evidence to the jury with a view of purposefully misleading the jury as to the effect of that evidence?

3. Was it prosecutorial misconduct and reversible error for the prosecutor to make repeated and warrantless objections to defense counsel's voir dire of the jury, opening statement, cross-examination of material witnesses, and direct examination of defense witnesses?

4. Was it reversible error for the prosecutor to willfully fail to disclose evidence inconsistent with the state's case?

5. Was it prosecutorial misconduct and reversible error for the prosecutor to continually and repeatedly violate the Code of Professional Responsibility and the American Bar Association's Minimum Standards for Prosecutors?

The facts necessary for a determination of this matter on appeal are as follows. Four men, Donnell Thomas, David O. Williams, Robert Lee Skinner (the defendant) and Paul Lawrence Wright were charged with the crimes of armed robbery, conspiracy to commit armed robbery, and murder. After a lengthy preliminary hearing on all of these charges, the magistrate held Donnell Thomas and David Williams to answer on the robbery and conspiracy counts. The magistrate at that time found that there was not probable cause to hold either the defendant or Wright on any of the charges in the complaint and dismissed the complaint as to those two defendants. Later, pursuant to an ex parte petition by the county attorney, the court ordered that the preliminary examination as to defendant and Wright be reopened. Following the hearing of testimony the magistrate held that defendant and Wright to answer on all three counts of the complaint. As a result defendant and Wright petitioned this court for a writ of special action. This court accepted jurisdiction but denied the relief requested on 9 October 1970. Skinner v. Superior Court of State of Arizona in and for County of Pima, 106 Ariz. 287, 475 P.2d 271 (1970). Thereafter defendant's and Wright's cases were severed. Also Count I of the information charging Skinner with conspiracy to commit armed robbery was severed. Skinner then went to trial in the instant matter on Counts II and III of the information, armed robbery and murder, on 22 February 1971.

The incident from which these charges stemmed was the robbery of Crown Liquor Store in Tucson on 4 October 1969. The clerk, Mason Branch, was found dead of gunshot wounds, a victim of the robbery. The defendant Skinner did not dispute that the robbery and murder had taken place--the only issue was whether he was involved. Willie Dixon, a convicted felon, testified that he saw Skinner and Donnell Thomas inside the liquor store a short time before the murder and robbery took place. He further stated that he saw Skinner and Paul Wright at a friend's house a short time after the crime occurred. A fingerprint belonging to David Williams was found on a cigar box lying near the deceased inside the liquor store. The prosecutor, over defendant's objection, read to the jury a statement of George McDonald, an inmate of the Arizona State Prison and convicted felon that he, Robert Skinner, Paul Wright and Donnell Thomas had discussed robbing Crown Liquor in September 1969. McDonald then made a trip to California. When he returned he stated that Skinner approached him on 3 October 1969 and again asked him to rob Crown Liquor with Donnell Thomas and Paul Wright. McDonald refused. The next day, 4 October 1969, the three showed McDonald some pistols and talked about the robbery again.

McDonald testified at the trial, however, that his statement was untrue, that he was in jail at the time the statement was made and that he made the statement after being told that if he did so seven armed robbery charges against him would either be dropped or not filed. Also his aunt and uncle would get a $1,000 reward if he were to give a statement to the police.

There was testimony from one Lucius Sorrell, an admitted user of LSD and heroin and an inmate of the Arizona State Hospital, that Williams, Thomas, Skinner and Wright came to his apartment on the evening of 4 October 1969. At that time Donnell Thomas asked if he could borrow a gun. Sorrell stated that a short time thereafter Donnell Thomas came back and told him that he did not need the gun. Sorrell then stated that as he left his apartment a short time later he saw four people running across the park in a direction away from the liquor store. He claimed that these four people were Donnell Thomas, David Williams, Paul Wright and defendant. Sorrell's testimony was somewhat impeached on cross-examination by prior inconsistent statements and his credibility was damaged by the testimony of independent witnesses. Willie Dixon, for instance, testified that he saw Sorrell on the evening of 4 October in a stolen car apparently under the influence of narcotics. Dixon further testified that Sorrell did not live in that particular apartment and was not there on the day in question.

Skinner took the stand in his own behalf and testified that he spent the day with Thomas, Wright and Williams. He stated that the four of them were parked in front of the liquor store when Williams left the group stating that he was going to go in the liquor store to rob it. Skinner testified that he and Paul Wright then left the car and proceeded toward his home on foot.

Skinner was the last defendant to be tried. Donnell Thomas was tried twice, the first trial ending in a mistrial as a result of a hung jury and the second trial resulting in a conviction of first degree murder with the jury assessing the death penalty. On appeal we affirmed the conviction, State v. Thomas, 110 Ariz. 120, 515 P.2d 865, No. 2199, filed this day. David Williams plead guilty to first degree murder and was given the death penalty by the sentencing judge. His case was reversed by this court in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Williams, 107 Ariz. 421, 489 P.2d 231 (1971). On remand Williams again entered a plea to first degree murder and was given life imprisonment. Paul Wright was tried and found guilty of voluntary manslaughter, armed robbery, and conspiracy. The trial judge gave Wright probation.

A. As to Evidentiary Matters:

SUBSTANTIVE USE OF McDONALD'S STATEMENT

At the trial George McDonald was called as a witness by the State. He was asked by the prosecutor whether he knew the defendant and the three other men, Donnell Thomas, Paul Wright, and David Williams. McDonald stated that he did:

'Q Now, going to the month of September, 1969, and on the day of September 6, 1969, did you have occasion to come in contact with this Defendant, Robert Lee Skinner, Paul Wright, and Donnell Thomas, and have a conversation about robbing the Crown Liquor Store?

'A No, I didn't.

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'Q On that same date did they ask you to rob Crown Liquor Store?

'A No, they didn't.

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'Q And on that same date did you tell the Defendant Robert Lee Skinner, Paul Lawrence Wright, and Donnell Thomas, to wait until you came back from California?

'A No.

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'Q Did you go to California in September of 1969?

'A Yes, I did.

'Q Mr. McDonald, on the 3rd of October, did Robert Lee Skinner, the Defendant here, talk to you and ask you to go with him and Donnell Thomas and Paul Wright and the person you call Newcomb at that time?

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'A Mr. Skinner never approached me and ask me about robbing anything.

'Q Would you answer the question?

'A No, he didn't.

'Q When I speak of Crown Liquor Store and in October, 1969, September, 1969, I am speaking of the Crown Liquor Store between Fourth and Sixth Avenue on Grant Road.

'A Yes.

'Q And you knew where it was?

'A Yes.

'Q And you understand that was the place I was talking about in the...