State v. Taylor

• Court: Arizona Court of Appeals
• Writing for the Court: MOLLOY
• Citation: State v. Taylor, 9 Ariz.App. 290, 451 P.2d 648 (Ariz. App. 1969)
• Decision Date: 13 March 1969
• Docket Number: CA-CR,No. 2,2
• Parties: The STATE of Arizona, Appellee, v. Milford TAYLOR, Appellant. 133.

Page 648

451 P.2d 648

9 Ariz.App. 290

The STATE of Arizona, Appellee, v. Milford TAYLOR, Appellant.

No. 2 CA-CR 133.

Court of Appeals of Arizona.

March 13, 1969.

Rehearing Denied April 11, 1969.

Review Denied April 29, 1969.

Gary K. Nelson, Atty. Gen., Carl Waag, Sp. Asst. Atty. Gen., Lloyd D. Brumage, County Atty., Pinal County, Florence, Patricia Morning, Deputy County Atty., Pinal County, Florence, for appellee.

Cavness, DeRose, Senner & Foster, by John W. Rood, Phoenix, for appellant.

MOLLOY, Chief Judge.

This is an appeal from a conviction of assault with a deadly weapon. The charge arose from the defendant's shooting of a 15-year-old boy. We are concerned principally with whether the trial court unduly restricted cross-examination of prosecution witnesses.

The shooting occurred on premises occupied by the defendant as his home. There are no witnesses to the shooting except the defendant and the complaining witness and their stories of what occurred are sharply conflicting.

The youth who was shot testified that he went to the defendant's home on the evening in question to collect for newspapers which he had delivered some months before the shooting. On arrival, he rang the front doorbell several times, but, receiving no response, proceeded to knock on the back door. Again there was no response; he peeked through the window without seeing 'anything.' Then, according to the boy, he heard the defendant say, 'If you want the money, come on in.' He checked the back door and found it locked. Thereupon the boy '* * * took it as a dare' to come into the house. He knocked the screen out of one of the back windows with his fist. He hid the screen in a bush some 200 feet or more from the back door so that the defendant '* * * wouldn't make anything of it.' Though the steelsash on this window was found by sheriff's deputies to have been forced open, the complaining witness testified that when he returned to the house, he found the back door open and he entered through this door into the kitchen. There he encountered the defendant running out of the other room with a pistol in each hand. According to the boy, the defendant called him a foul name, kicked him and hit him on the head with his pistol. The boy then ran out the back door and climbed over the backyard fence when he heard the defendant order him to stop, which he did. The defendant approached and told him that he was going to take him to the police station, but then, for no apparent reason, while the boy had his arms up--ready to go to the station--the defendant shot him in the groin. At this time, the boy turned and escaped by running.

The defendant's testimony was that he had been deer hunting on that morning, and after spending some time in a tavern in the late afternoon, returned to his home where he lived alone. He fell asleep in the living room while watching TV. Two pistols, which he had used while hunting, were laying beside him. He was awakened by strange noises in the kitchen; he grabbed the two guns, one in each hand, and, '* * * half afraid or scared because I didn't know who or what was happening * * *,' proceeded to the darkened kitchen. There he encountered a figure whom he later ascertained to be the complaining witness. When the defendant told this figure to stay where he was, that he was going to call the police, the figure stepped toward him and he hit the figure on the head with his pistol. Again, the defendant told the figure to stand still while he made a telephone call, but the individual ran out the back door. The defendant proceeded after this person and after firing two warning shots, the defendant fired one or two more shots in the general direction of the fleeing person as he vaulted over the back fence.

The first contention of error is that the defendant was unduly restricted in his cross-examination of the complaining witness. By a pretrial ruling, on a motion to suppress evidence, the trial court ruled that this witness could not be cross-examined as to any '* * * prior acts of misconduct * * *' Defendant's counsel avowed to the court that it was his understanding that this witness had on two prior occasions been charged in juvenile proceedings with breaking and entering. Defendant contended that the cross-examination on these prior offenses should be permitted in order to disparage the '* * * pure motive * * *' put forward by the complaining witness as to why he was in the defendant's home on the evening in question. Argument to the court indicated that defendant's counsel wanted to question the witness about his Modus operandi in making this and other illegal entries. The pretrial rulings of the court expressly foreclosed any such examination. ¹

As in most evidentiary questions, there is considerable discretion vested in the trial court as to the limits of cross-examination. State v. Baca, 102 Ariz. 83, 86, 425 P.2d 108, 111 (1967). However, this jurisdiction is committed to 'great latitude' in scope of cross-examination. State v. Mangrum, 98 Ariz. 279, 285, 403 P.2d 925, 929 (1965). The right with which we are concerned is constitutionally protected. Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); State v. Narten, 99 Ariz. 116, 121, 407 P.2d 81, 84 (1965). Our Supreme Court has said:

On cross-examination a party should be permitted to ask any question which bears upon the credibility of the witness and sheds light upon the issues of the case.' Spector v. Spector, 94 Ariz. 175, 184, 382 P.2d 659, 665 (1963).

One of the critical issues of this case was whether the complaining witness was in the commission of a felony when apprehended by the defendant. The jury was instructed, and there is no questioning of this law here, that, if the complaining witness was in the process of committing a burglary, the defendant would have been justified in using such force as was reasonably necessary for the apprehension of the offender, even to the taking of life. See Viliborghi v. State of Arizona, 45 Ariz. 275, 291, 43 P.2d 210, 217 (1935); A.R.S. §§ 13--246(A) and 13--462; and See 6 C.J.S. Arrest § 13, at p. 613; and Life & Casualty Ins. Co. v. Hargraves, 169 Tenn. 388, 88 S.W.2d 451 (1935).

Conversely, if the complaining witness were an invitee into the defendant's home on the occasion in question, the defendant would have no right to apprehend him. The fact that the defendant did shoot this boy is established beyond cavil and the only realistic defense presented is that the defendant was justified in so doing because of the law pertaining to arrest.

With this the factual issue, the relevancy of the prohibited cross-examination is clear. Any fact finder interested in objectively testing the truth of the complaining witness's version of these occurrences would be interested in knowing whether this boy had previously entered homes in the fashion which the defendant's testimony and some of the physical evidence would indicate was the case here. Such previous conduct, if it occurred, would be strong circumstantial evidence bearing upon what was in this boy's mind when he gained entrance to this home.

In evaluating whether instances of prior misconduct should be admitted, either as a permissible area of cross-examination or for purposes of introducing independent evidence, the court must weigh competing interests. State v. Chaney, 5 Ariz.App. 530, 538, 428 P.2d 1004, 1012 (1967); and See McCormick on Evidence, at 319--321 (Hornbook Series 1954).

One of the prime considerations to be taken into account--possible prejudice against the defendant to a criminal charge--is not present here. We have remaining two policy considerations to compete against the ascertainment of truth. One is the matter of time consumption and confusion of issues. See State v. Harris, 73 Ariz. 138, 142, 238 P.2d 957, 959 (1951). In view of the direct bearing that this examination would have upon a critical factual issue and the difficulty of obtaining any better proof of the...