State v. Sustaita

• Decision Date: 23 June 1978
• Docket Number: No. 4092-PR,4092-PR
• Parties: The STATE of Arizona, Appellee, v. Paul Montez SUSTAITA and Paul R. Gonzales, Appellants.
• Court: Arizona Supreme Court

Page 239

583 P.2d 239

119 Ariz. 583

The STATE of Arizona, Appellee, v. Paul Montez SUSTAITA and Paul R. Gonzales, Appellants.

No. 4092-PR.

Supreme Court of Arizona, In Banc.

June 23, 1978.

Rehearing Denied Sept. 7, 1978.

Bruce E. Babbitt, Atty. Gen., John A. LaSota, Jr., Atty. Gen. by William J. Schafer, III, Cleon M. Duke, Asst. Attys. Gen., Phoenix, and Philip G. Urry, Asst. Atty. Gen., Tucson, for appellee

Harley Kurlander, Tucson, for appellant Sustaita.

Frederick S. Klein, Tucson, for appellant Gonzales.

CAMERON, Chief Justice.

We granted petitions for review (Rule 31.19, Rules of Criminal Procedure, 17 A.R.S.) of the decisions and opinion of the Court of Appeals in two consolidated cases which affirmed as to the defendant Paul Montez Sustaita and reversed as to the defendant Paul Rodriguez Gonzales.

Defendant Sustaita appealed from a verdict and judgment of guilt to the crime of assault with intent to commit sodomy, A.R.S. § 13-252, and sodomy, A.R.S. § 13-651. Defendant Gonzales appealed from a verdict and judgment of guilt to the crime of assault with intent to commit sodomy, A.R.S. § 13-252. Sustaita received concurrent prison sentences of 8 to 10 years for assault with intent to commit sodomy and 12 to 15 years for sodomy. Gonzales was sentenced to a prison term of 4 to 6 years.

We must decide the following issues:

1. Did the trial court err in allowing the prosecutor to cross-examine and subsequently impeach his own witness by introduction of a prior inconsistent statement?

2. Did the trial court err in refusing to grant defendant Gonzales' motion to sever?

3. Did the trial court err in permitting a statement made by defendant Sustaita to be used against defendant Gonzales?

4. Did the trial court commit reversible error in refusing to strike incompetent testimony offered to impeach witness Marvin Zufelt?

5. Should the in-court identification of the defendants have been suppressed or the case dismissed because certain photographs used in a prior out-of-court identification were not available at the trial thereby precluding a determination of prejudicial impact, if any, of the prior out-of-court identification on the in-court identification?

6. Were counts in the indictment against the defendants alleging assault with intent to commit sodomy fatally defective and thus subject to dismissal because the statute alleged to have been violated was stated as A.R.S. § 13-253 when the correct statute for the crime is A.R.S. § 13-252?

7. Is assault with intent to commit sodomy a lesser included offense of sodomy, making Sustaita's conviction for both improper?

8. Were arguments and insinuations made by the prosecutor so improper or prejudicial as to deny the defendants a fair trial?

The facts necessary for a determination of this matter are as follows. In July of 1976, a twenty-year old male was sentenced to serve a 6 month jail sentence in the Pima County Jail following his guilty plea on a misdemeanor charge. On or before 27 July 1976, the victim was assigned to a trusty tank where several trusty inmates were billeted. On the evening of 27 July, the victim was lying on his bunk when he was approached by defendant Paul Sustaita who offered to give him a massage. Defendant Paul Gonzales was in the immediate area when this offer was made. The victim declined the invitation. Later in the evening, Sustaita again approached the victim's bunk, uttered a few expressions concerning his desires and then assaulted the victim. After some struggle, Sustaita subdued the victim and sodomized him by inserting his penis into the victim's anus. Within one minute after the incident occurred, Paul Gonzales jumped into the victim's bunk and attempted to sodomize him. During his struggle to subdue the victim, Gonzales lost his erection and was unable to complete his design. He fled from the victim's bunk when a guard was heard coming down the hallway. The next day, the victim sought and received medical attention, reported the incident to the jail authorities, and identified his assailants from mugshot photographs of inmates in the trusty tank. Charges were thereafter filed against Sustaita and Gonzales.

The matters were joined for trial before a jury and from the verdicts, judgments, and sentences, defendants appealed. The Court of Appeals affirmed as to defendant Sustaita and reversed and remanded for new trial as to defendant Gonzales because of impeachment by the State of its own witness. Ariz.App., 583 P.2d 256 (1977). Both defendants and the State petitioned this court for review which petitions were granted.

CROSS-EXAMINATION AND IMPEACHMENT OF THE STATE'S OWN WITNESS

On 28 July 1976, the day following the incidents, Detective Ron Hyatt of the Pima County Sheriff's Department interviewed each of the inmates who had spent the night in the trusty tank. Inmate Bobby Dean Warren, who occupied a bunk above the victim's bunk, told the detective that he had been awakened during the night by the victim's shouting and had seen Gonzales squatting or standing beside the victim's bunk. He also told Detective Hyatt that he had seen both Gonzales and Sustaita near the victim's bed earlier that evening. Warren's statements to Hyatt were included in a report Hyatt wrote the day after the interview (on 29 July).

In an interview with an investigator from the County Attorney's Office approximately one week before the trial, Warren denied his earlier statement. The prosecutor was aware of this second statement and included Mr. Warren was called by the prosecutor to testify at trial. Contrary to his first statement, Warren denied having seen either Sustaita or Gonzales near the victim's bunk on the evening in question. He also testified that he was awakened during the night not by the victim's yelling, but by Gonzales and another inmate "chest boxing" in another area of the tank. As the witness's position developed, the prosecutor resorted increasingly to the use of leading questions. At no point, however, did he request permission to cross-examine his own witness, nor was there any objection by defendants to this questioning on the ground that it constituted cross-examination. When the prosecutor asked the witness whether he had told Detective Hyatt that he had seen Gonzales by the victim's bunk on the evening of 27 July, an objection was made on the ground that the prosecutor was trying to impeach his own witness. The court overruled the objection on the basis of State v. Skinner, 110 Ariz. 135, 515 P.2d 880 (1973), but suggested that the prosecutor proceed by first attempting to refresh the witness's recollection by showing him Detective Hyatt's report containing his original statement. This the prosecution did, but the witness denied having made the statements attributed to him in Detective Hyatt's report. Later, the prosecutor called Detective Hyatt who testified as to Warren's original statement to him on 28 July. On appeal, it is contended that the trial court erred in allowing the prosecutor to cross-examine and impeach his own witness.

it in his required pretrial disclosure to the defendants' attorneys.

It was a rule of both the civil and common law that a witness could not be cross-examined or impeached by the party calling him. Over the years, various exceptions and conditions to exceptions have been engrafted onto this rule by courts of various jurisdictions in an effort to correct injustices arising from perjured testimony. Recently, the traditional rule was completely abrogated in this jurisdiction by our adoption of rules of evidence which permit any party to attack a witness's credibility, including the party calling him. Rule 607, Rules of Evidence, 17A A.R.S. The instant case, however, was tried before the new rules of evidence became effective. We must determine whether the trial court's permitting the prosecutor to cross-examine and impeach Bobby Warren violated the rule in Arizona as it existed prior to the enactment of the new rules of evidence.

In determining whether error was committed, a distinction must be made between cross-examination of a witness and impeachment of a witness. We have stated:

"(W)hile surprise is a condition precedent to cross-examining one's own witness, adversity or prejudice is a condition precedent to impeachment of one's own witness. We clearly distinguished between the right to cross-examine and the right to impeach. Before a party's witness may be impeached he must have testified to some fact that was prejudicial or damaging to the party calling him." State v. Skinner, supra, 110 Ariz. at 143, 515 P.2d at 888.

In other words, the rule was that before you could cross-examine your own witness, you had to show surprise. Before you could go further and impeach your own witness, you had to show adverseness and prejudice:

"In assignments 4 and 5 defendant has failed therein to make a distinction between the right to impeach the witness and the right to cross-examine him. The right to cross-examine a witness when he testifies to something which takes the party calling him by surprise may exist when the right to impeach such witness clearly would be denied. Where a witness testifies to something different from what he was expected to testify but whose testimony is not necessarily prejudicial or damaging to the cause of the party calling him he may be cross-examined by such party for the purpose of refreshing his memory and reference may be made to former statements made or testimony given by such witness for the purpose of refreshing his memory and in "However, before such witness can be impeached he must have testified to some fact that was prejudicial, damaging to the party calling him. (citation omitted) * * * " State v. Lane, 69 Ariz. 236, 242, 211 P.2d 821, 824-25 (1949).

aiding him to testify to the truth. (citations omitted)

In the instant case, the defendant Gonzales did not object to the State cross-examining its own witness, and we do not believe that objection...