State v. Smith, 5595

Decision Date28 September 1983
Docket NumberNo. 5595,5595
PartiesSTATE of Arizona, Appellee, v. Robert Douglas SMITH, Appellant.
CourtArizona Supreme Court

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

Frederic J. Dardis, Pima County Public Defender by Lawrence H. Fleischman, Asst. Public Defender, Tucson, for appellant.

CAMERON, Justice.

Defendant, Robert Douglas Smith, was tried before a jury and convicted of first degree murder, A.R.S. § 13-1105, kidnapping, A.R.S. § 13-1304(A)(3), and sexual assault, A.R.S. § 13-1406. In addition, the kidnapping and sexual assault were found to have been dangerous felonies, involving the infliction of serious physical injury, A.R.S. § 13-604. Defendant was sentenced to death for the murder, to 21 years imprisonment for the kidnapping, and to 21 years imprisonment for the sexual assault, to be served consecutively to the sentence for kidnapping. The case was automatically appealed to this court pursuant to Rules 26.15, 31.2(b), Arizona Rules of Criminal Procedure, 17 A.R.S.; we have jurisdiction pursuant to Art. 6, § 5(3) of the Arizona Constitution, and A.R.S. §§ 13-4031 and 13-4035.

The issues we must decide on appeal are:

I. Does the use of a dual jury procedure at trial constitute reversible error?

II. Did the trial court lack venue over the homicide charge?

III. Was it error to allow an official of the Pima County attorney's office to testify regarding the grant of immunity to an accomplice?

IV. Did the trial court err in failing to give one of the defendant's proffered jury instructions?

V. Is the Arizona death penalty statute unconstitutional?

VI. Is the statutory aggravating circumstance of killing in an "especially heinous, cruel, or depraved manner" unconstitutionally vague?

VII. Is there a right to have a jury participate in sentencing where the death penalty is imposable?

VIII. Is it unconstitutional to place the burden of proof of mitigating circumstances on the defendant?

IX. Did the trial court err in placing limits on recross-examination? X. Were defendant's statements voluntary?

XI. Did the prosecutor's closing argument contain fundamental error?

XII. Did the trial court err in failing to instruct the jury on second degree murder?

XIII. Did the trial court properly exclude from evidence an exculpatory hearsay statement made by the defendant to a police officer?

XIV. Is imposition of the death penalty foreclosed in this case by Enmund v. Florida?

XV. Does the court find in its independent review that the death penalty was appropriate in this case?

XVI. Is the death penalty in this case proportionate to the disposition of other similar cases?

The first eight issues raised in this appeal have been decided and discussed in the companion case of State v. Lambright, 138 Ariz. 63, 673 P.2d 1 (1983). A summary of the facts necessary for the determination of this appeal is also contained in that opinion.

IX. LIMITATION OF RECROSS-EXAMINATION

Defendant asserts that the trial court erred in limiting his right to recross-examine the state's key witness, Kathy Foreman. The control of cross-examination is left to the sound discretion of the trial judge and will not be disturbed on appeal absent a showing from the record of an abuse of discretion. State v. Thomas, 110 Ariz. 106, 109, 515 P.2d 851, 854 (1973). Further,

The right of confrontation and cross-examination of adverse witnesses is of fundamental importance, but it is not a right without limitation. It is well established in Arizona, as well as in many other jurisdictions, that there is no right to re-cross unless some new issue arises during redirect; otherwise, it is a matter of the trial court's sound discretion. (Citations omitted.) State v. Jones, 110 Ariz. 546, 550, 521 P.2d 978, 982, cert. denied 419 U.S. 1004, 95 S.Ct. 324, 42 L.Ed.2d 280 (1974), quoted in State v. Williams, 113 Ariz. 14, 16, 545 P.2d 938, 940 (1976).

In the instant case the judge offered the defendant a full opportunity to recross-examine the witness on any new areas brought out on redirect, and because he was tried together with another defendant, he also gave him the opportunity to conduct recross on any new point opened up on cross-examination by the co-defendant. Defendant's counsel declined to specify any new areas he wished to inquire into on recross-examination, so the trial judge did not permit recross-examination to proceed.

A party has no right to use further cross-examination to repeat or re-emphasize matters already covered on direct or cross-examination. The court may inquire into the nature and purpose of the further cross-examination to determine whether to permit it or limit its scope. State v. Loftis, 89 Ariz. 403, 405-06, 363 P.2d 585, 587 (1961).

We find no error.

X. VOLUNTARINESS OF STATEMENTS

Robert Smith was arrested at about 9:00 a.m. on 14 March 1981 at an apartment complex in South Houston, Texas. He was arrested by officer John W. Laird of the Texas Department of Public Safety, who was accompanied by Robert Petty, another Texas DPS officer, and two South Houston policemen. Officer Laird read Smith his Miranda rights, and Smith acknowledged that he understood them. No questions were asked at the time of arrest. Smith was taken to the South Houston Police Department, and a magistrate was summoned. The magistrate advised Smith of the charges against him, and read him his constitutional rights a second time. Defendant then agreed to talk to agents Laird and Petty. The officers told him that Kathy Foreman had admitted her participation in the crimes and had implicated Smith. The officers also explained the nature of the charges against Smith. Smith then made his first confession. In this first statement, Smith set forth the basic facts surrounding this crime, including his substantial involvement in the incident. In this first statement he told authorities that Kathy Foreman was the person who actually stabbed the victim.

Officer Laird told Smith the story just did not sound right somehow, and asked if he was sure it was the truth. Smith then became somewhat emotional, and said he had lied in order to protect his friend Lambright.

He then made a second statement, which paralleled the first one except that Smith now stated it was Lambright who stabbed the victim, and that both Lambright and Foreman cut the victim's throat. After the second statement Smith asked if he could see his wife. The officers granted the request and arranged for her to come down and see him. He visited with his wife and her mother for approximately an hour. The officers went in and out of the room several times as they got food and beverages for themselves and Smith. The officers testified that while they were in the room the defendant and his wife were talking about religion, and they observed the defendant crying.

After seeing his wife, Smith met with Laird and Petty again, and gave them a third statement which was similar to the second statement, but which was far more detailed. The defendant also expressed a willingness to give a written statement. Two days later he did give a written statement to the Texas authorities, after being given another set of constitutional warnings.

Defendant's final statement was made in Arizona to detective Gary Dhaemers of the Pima County Sheriff's Department. He agreed to answer questions in a taped interview. A transcript was made of the interview, which the defendant was given the opportunity to review, correct, and sign. The trial judge found that each of Smith's confessions was voluntary and admissible.

As we noted in State v. Lambright, supra, filed this date,

The trial court must look to the totality of the circumstances surrounding the giving of the confession, as presented at "voluntariness" hearings, and decide whether the State has met its burden. However, the trial court's determination of admissibility will not be upset on appeal, absent clear and manifest error. (Citations omitted.) State v. Arnett, 119 Ariz. 38, 42, 579 P.2d 542, 546 (1978), quoted in State v. Osbond, 128 Ariz. 76, 78, 623 P.2d 1232, 1234 (1981). Accord State v. Dalglish, 131 Ariz. 133, 137, 639 P.2d 323, 327 (1982).

No clear and manifest error is present in the instant case. We do not find the circumstances surrounding the giving of these confessions to have been inherently coercive. Nor do we find it was improper, as suggested by defendant, for the officers, when explaining the charges against Smith, to accurately inform him that he had been implicated in the crime by Foreman.

Defendant further alleges as specific error the fact that detective Dhaemers brought the transcript of the last confession directly to Smith for his review, instead of delivering it to his attorney. It is apparent, however, that when Dhaemers delivered the transcript to Smith for his corrections and signature, he fully apprised the defendant of his right to have counsel assist him. In officer Dhaemers' uncontradicted testimony, he stated:

Well, I had gone through [the transcript] as best I could, and then I took it over to the jail and asked Mr. Smith if he wanted the opportunity to go through the transcript of the tape that he had given to me.

He indicated that he did. He wanted to go through it.

I advised him he had the right to have an attorney with him. He already had an attorney appointed to him and if he wanted that attorney there, he could have him there before we went through the statement and reviewed it. He indicated to me that his attorney said that--had told him not to talk to anybody, but he wanted to talk to us and he wanted to go through his statement, his attorney would be mad at him because he did this, but he wanted to do this anyway.

This is not a case in which the police resorted to subterfuge in an attempt to deprive the...

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