State v. Sucharew

• Decision Date: 27 February 2003
• Docket Number: No. 1 CA-CR 02-0190 RT.,1 CA-CR 02-0190 RT.
• Citation: 205 Ariz. 16,66 P.3d 59
• Parties: STATE of Arizona, Appellee, v. Scott G. SUCHAREW, Appellant.
• Court: Arizona Court of Appeals

66 P.3d 59

205 Ariz. 16

STATE of Arizona, Appellee, v. Scott G. SUCHAREW, Appellant.

No. -0190 RT.

Court of Appeals of Arizona, Division 1, Department B.

February 27, 2003.

Redesignated as Opinion and Publication Ordered April 11, 2003.

Terry Goddard, Attorney General By Randall M. Howe, Chief Counsel, Criminal Appeals Section, and John L. Saccoman, Assistant Attorney General, Phoenix, Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender By Christopher V. Johns, Deputy Public Defender, Phoenix, Attorneys for Appellant.

OPINION

WINTHROP, Judge.

¶ 1 Scott G. Sucharew ("defendant") appeals his convictions for second-degree murder and leaving the scene of a fatal injury accident. Defendant contends that the trial court erred in (1) permitting the State to use a "PowerPoint"¹ presentation during opening statements; (2) allowing the State to introduce improper hearsay testimony; (3) restricting cross-examination of a witness; and (4) refusing two requested jury instructions. For reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 The charges against defendant arise from an automobile accident that occurred around midnight on the evening of July 3, 2001, on the Warner-Elliot Loop in the Ahwatukee Foothills area of Phoenix. Defendant and Westin Doyle were in separate vehicles speeding southbound on the Loop when defendant collided with a vehicle driven by Steven Welch south of the intersection of Equestrian Trail. The posted speed limit on the Loop is 40 miles-per-hour. Defendant was estimated to have been driving 70 to 80 miles-per-hour just prior to the collision. Welch sustained massive injuries in the accident and died at the scene.

¶ 3 Doyle's vehicle careened into a residential wall and came to a stop approximately fifty yards past the collision. Defendant walked over to where Doyle and his passenger were standing outside Doyle's car, said a few words, and then disappeared. The police later found defendant lying in the front lawn of a residence a short distance away from the accident scene. Defendant admitted to being involved in the accident and to drinking alcohol that evening. Analysis of a blood sample obtained from defendant revealed a blood alcohol concentration level of .141.

¶ 4 Defendant was indicted on charges of second-degree murder, a Class One felony, and leaving the scene of a fatal injury accident, a Class Three felony. Upon trial to a jury, defendant was found guilty as charged. The trial court sentenced defendant to a mitigated eleven year prison term on the murder conviction with credit for 124 days of presentence incarceration. The trial court suspended sentencing on the conviction for leaving the scene and placed defendant on supervised probation for four years, to commence upon his release from prison. Defendant filed a timely notice of appeal.

ANALYSIS

A. The trial court did not abuse its discretion in permitting the State to use a "PowerPoint" presentation during opening statements.

¶ 5 Prior to trial, the prosecutor informed the court and defense counsel that he intended to use a "PowerPoint" presentation during his opening statement. The presentation consisted of a series of thirty slides including: 1) a title page; 2) photographs of the vehicles and accident scene with superimposed descriptions and headings; 3) a map; 4) a listing of defendant's blood alcohol content and physical symptoms; and 5) a list of the elements of the two charged offenses. Defendant objected on the grounds that he had not received advance notice of the presentation, that Rule 19 of the Rules of Criminal Procedure is silent on the use of such material, and that the presentation referenced evidence that might not be introduced at trial. After reviewing the proposed presentation, the trial court overruled the objection noting that the presentation was not prejudicial or inflammatory and that it did not include anything that was not likely to be admitted at trial. ¶ 6 "The trial court has full discretion in the conduct of the trial, and that discretion will not be overturned on appeal absent a clear showing of an abuse of discretion." State v. Just, 138 Ariz. 534, 550, 675 P.2d 1353, 1369 (App.1983). The function of an opening statement is "to inform the jury of what the party expects to prove and prepare the jury for the evidence that is to be presented." State v. King, 180 Ariz. 268, 278, 883 P.2d 1024, 1034 (1994).

¶ 7 Defendant argues that the trial court abused its discretion in permitting the prosecutor to use the "PowerPoint" presentation in his opening statement because the presentation involved a "computer generated exhibit." Although a computer was used in the presentation, the actual presentation did not include any computer simulation or other similar evidence; rather, it was essentially a slide show of photographic exhibits. The photographs included in the presentation were the same ones disclosed to defendant during pretrial discovery and later admitted into evidence at trial. Moreover, even though the photographs included superimposed descriptive words and labels, the words and labels simply tracked the subject matter of the prosecutor's opening statement to the jury, and defendant made no objection to any of the content or substance of the actual opening statement. We conclude, therefore, that there was no abuse of discretion by the trial court in permitting the State's use of the "PowerPoint" presentation. See People v. Green, 47 Cal.2d 209, 302 P.2d 307, 312 (1956)

(holding trial court had discretion to permit use of motion picture and photographs later admitted into evidence during opening statement), disapproved on other grounds in People v. Morse, 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33 (1964).

B. The trial court did not err in precluding defendant from cross-examining a witness in regards to privileged communications.

¶ 8 The State granted Westin Doyle immunity to obtain his testimony against defendant. During his cross-examination of Doyle, defendant sought to question Doyle about the conversations Doyle had with his attorney prior to being interviewed by defendant's investigator. The prosecutor raised an objection based on the attorney-client privilege. Defendant argued that the privilege was waived because Doyle's parents were present during the conversations. The trial court ruled that, because Doyle was a juvenile, the presence of his parents did not constitute a waiver of the privilege and precluded defendant from questioning Doyle regarding his conversations with his attorney.

¶ 9 Defendant contends that the trial court erred in sustaining the State's objection and restricting his cross-examination of Doyle. A trial court's ruling, restricting cross-examination, will not be disturbed on appeal absent an abuse of discretion. State v. Adams, 155 Ariz. 117, 122, 745 P.2d 175, 180 (App.1987). The issue of whether a privilege exists, however, is a question of law and therefore reviewed de novo. State v. Malvern, 192 Ariz. 154, 155,

¶ 2, 962 P.2d 228, 229 (App.1998); Ulibarri v. Superior Court, 184 Ariz. 382, 384, 909 P.2d 449, 451 (App. 1995).

¶ 10 The attorney-client privilege is the oldest of privileges for confidential communications and is "rigorously guarded `to encourage full and frank communications between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.'"<sup>2</sup> State v. Towery, 186 Ariz. 168, 177, n. 6, 920 P.2d 290, 299, n. 6 (1996) (citation omitted). The privilege belongs to the client and encompasses communication between the attorney and client made in the course of the attorney's professional employment. State v. Holsinger, 124 Ariz. 18, 22, 601 P.2d 1054, 1058 (1979). "Neither the client nor the attorney can be compelled to disclose these communications against the client's wishes." Id. ¶ 11 Because the attorney-client privilege exists to protect confidential communications between the attorney and client, a client waives the privilege by disclosing the confidential communications to a third party. Ulibarri, 184 Ariz. at 385,909 P.2d at 452. Accordingly, "[t]he presence of a third person will usually defeat the privilege on the ground that confidentiality could not be intended with respect to communications that the speaker knowingly allowed to be overheard by others foreign to the confidential relationship." Morris K. Udall, et al., Law of Evidence § 71, at 128 (3d ed.1991). This general rule does not apply, however, where the third party's presence does not indicate a lack of intent to keep the communication confidential. United States v. Bigos, 459 F.2d 639 (1st Cir.1972). Given the nature of the attorney-client privilege, the relevant inquiry focuses on "`whether the client reasonably understood the conference to be confidential'" notwithstanding the presence of third parties. Kevlik v. Goldstein, 724 F.2d 844, 849 (1st Cir.1984) (quoting McCormick on Evidence, § 91 at 189 (1972)); see also State v. Fodor, 179 Ariz. 442, 448, 880 P.2d 662, 668 (App.1994)

("The test for determining whether a communication is protected by the attorney-client privilege is a subjective one; it focuses primarily on the state of mind of the client.").

¶ 12 The third parties present in the instant case were Doyle's parents, who had hired and paid for counsel on their son's behalf. The clear indication is that they were taking an understandable parental interest and advisory role in their minor son's legal affairs. The presence of a parent in such a capacity at a meeting between child and counsel does not defeat the attorney-client privilege. Kevlik, 724 F.2d at 849; Bigos, 459 F.2d at 643; Rosati v. Kuzman, 660 A.2d 263, 266 (R.I.1995). We therefore agree with the trial court's ruling that the presence of Doyle's parents did not constitute a waiver of the attorney-client privilege.

¶ 13 Defendant also contends that by limiting his cross-examination of...