State v. Thomas

Decision Date07 November 1973
Docket NumberNo. 2199,2199
Citation515 P.2d 865,110 Ariz. 120
PartiesThe STATE of Arizona, Appellee, v. Donnell THOMAS, Appellant.
CourtArizona Supreme Court

Gary K. Nelson, Atty. Gen., by Paul J. Prato, Former Asst. Atty. Gen., Phoenix, for appellee.

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

CAMERON, Vice Chief Justice.

This is an appeal by the defendant, Donnell Thomas, from a jury verdict and judgment of guilt to the crime of first degree murder, §§ 13--451 and 452 A.R.S., with a sentence of death thereon, § 13--453 A.R.S.

Omitting questions concerning the death penalty, defendant asks that the following questions be answered on appeal:

1. Was it a violation of the confrontation clause of the Sixth Amendment of the United States Constitution and Rule 256 of the Arizona Rules of Criminal Procedure (1956), 17 A.R.S., to allow the State to use the testimony of a witness given at a previous trial when that witness was available at the second trial but when called to testify stated that he did not remember any events to which he had previously testified?

2. Under the facts in this case, was it reversible error for the trial court to refuse to admit into evidence a document impeaching a State's witness and also to prevent defendant from cross-examining a State's witness as to his motive and interest for testifying?

3. Was it reversible error to admit into evidence, four photographs of the deceased's nude body on a morgue slab during the course of an autopsy, showing wires protruding from the various openings in the body?

4. Was it reversible error and abuse of discretion for the trial court to allow the State to reopen its case after both the State and the defense had rested and the matter was ready to be submitted to the jury?

5. Was it reversible error for the Deputy County Attorney Horton Weiss to: (a) make repeated and improper offers of evidence, knowing the evidence to be inadmissible; (b) make continued objections to defense attorney's cross-examination of State's witnesses, thereby preventing the defendant from exercising his right of confrontation; (c) make repeated objections on direct examination of defense witnesses to prevent any continuity of testimony coming from defense witnesses; and (d) willfully and knowingly suppress evidence beneficial to the defense case and/or inconsistent with the State's theory of the case?

The facts necessary for a determination of this matter on appeal are as follows. On 4 October 1969, Mason Branch, a clerk at the Crown Liquor Store in Tucson, Arizona, was shot and killed during the course of an armed robbery. After investigation, the Tucson police obtained arrest warrants for the defendant Donnell Thomas as well as David Williams, Robert Skinner, and Paul Wright. David Williams entered a plea of guilty and was given the death penalty which plea and sentence was set aside on appeal. State v. Williams, 107 Ariz. 421, 489 P.2d 231 (1971). Williams again plead guilty to first degree murder and was sentenced to life imprisonment. Paul Wright was tried and found guilty of voluntary manslaughter, armed robbery, and conspiracy. He was given probation. Robert Lee Skinner was tried and convicted of first degree murder and armed robbery, and sentenced to life imprisonment. He appealed and the verdict, judgment and sentence were affirmed. See State v. Skinner, 110 Ariz. 135, 515 P.2d 880, filed this day.

The defendant Thomas was arrested in Oakland, California, on 6 November 1969. He admitted that he had spent most of the day of the murder with the codefendants Skinner, Williams, and Wright, and that he, Thomas, had been in the Crown Liquor Store on the night of the murder, but he denied any knowledge or involvement in the robbery and homicide. After a mistrial as a result of a 'hung' jury, Thomas was tried again, convicted, and sentenced to death.

The State contended that Thomas shot Branch five times during a robbery committed by Thomas and the three other men. Damaging evidence of the defendant's participation in the crime was given by Gilbert Alzua who testified that, while both were inmates of the county jail, the defendant had admitted killing Branch and robbing the store, and by the admission of testimony given at the first trial by Lucius Sorrell, an inmate of the Arizona State Mental Hospital and a user of heroin and LSD.

The prior testimony of Sorrell indicated that Thomas came to Sorrell's apartment and asked to borrow a gun to 'pull a job.' Thomas left without the gun and returned shortly to tell the witness that he didn't need to borrow the gun because he 'already had one.' Also, in his prior testimony, Sorrell stated that he saw Thomas and three other men running through a park near his apartment and a short distance from the liquor store about the time of the robbery and murder.

On cross-examination at the first trial, Sorrell said that he was unable to see Thomas clearly, but recognized him by his build and a hat he was wearing. He said that his inability to see from one eye and the darkness did not prevent him from observing accurately.


When Sorrell was called as a witness for the State he said he did not remember the events of 4 October 1969 surrounding the crime, nor did he remember the defendant or the other men accused of responsibility for the robbery and murder. The Deputy County Attorney, over the objection of the defendant's attorney, sought to introduce Sorrell's prior testimony given at defendant's first trial, at which time Sorrell had testified extensively and had been subjected to cross-examination by defendant's attorney. Prior to admission of this testimony, the court questioned Sorrell as follows:

'THE COURT: Before we go any further, the Court has a couple of questions of the witness, Gentlemen.



'Q Mr. Sorrell, are you nervous at the present time?

'A Who?

'Q Are you nervous now?

'A I get nervous off and on.

'Q Are you nervous now?

'A (No audible response.)

'Q Do you always shake that way?

'A I don't know. I don't always shake.

'Q Are you upset, Mr. Sorrell?

'A Yeah, I am getting upset.

'Q What are you getting upset about?

'A Because I told them yesterday, he come talked to me yesterday, and I told him yesterday how it was and tried to explain something to him, and he stood up and listened, but then he come back with the same thing today and I tell him I don't care what he would do, I just didn't know nothing, that was it. I mean, I am more confused and mixed up. I keep going through all these questions and things I don't know, just mess me up is all.

'Q Are you confused or are you frightened, Mr. Sorrell?

'A I get confused and mixed up.

'Q Are you frightened?

'A No.

'Q Has anybody made any threats to you that if you testify, anything will happen to you?

'A No.

'Q You just are all mixed up, you can't remember anything; is that your position?

'A Don't remember.

'Q Sir?

'A I mean--

'Q You are confused, you don't remember anything; is that your situation here today?

'A Yeah.

'Q These questions that these lawyers have been asking you, you don't recall any of the events that they are talking about?

'A What they would ask me?

'Q Yes, sir.

'A No, I don't know.

'Q Why does it take you so long to answer a question? I think the record ought to show at this time that every question that is asked of the witness there is a long pause while he ponders the question. Why do you do that, Mr. Sorrell?

'A I don't know, mixed up.

'Q Sir?

'A I don't know. I am just mixed up.

'Q Do you know where you are now?

'A Yeah, I am at the courtroom.

'Q Yeah, I am at the courtroom.

'Q You are in a courtroom, you understand that?

'A Yes, court.

'Q Do you understand that Mr. Donnell Thomas is on trial here today; do you understand that?

'A Well, I understand he is on trial?

'Q Yes.

'A Yeah.

'Q Did you ever testify before in a trial wherein Mr. Thomas was on trial?

'A I don't remember.

'Q You don't remember. So if we ask you any questions about any testimony you might have given at another trial of Mr. Thomas you wouldn't know anything about it?

'A No, I couldn't recall.

'Q You don't recall ever coming down to testify in a trial where Mr. Thomas was on trial?

'A Like I say, the only one I remember is when I was in that other building, when I came down and was in the other building over there.

'Q You mean on the other end of this building?

'A (No audible response.)

'Q Was that a Preliminary Hearing?

'A I don't know what it was. They know what it was. I don't know what it was.

'Q Was it while you were in the hospital they brought you down here or did they take yo to the hospital from that hearing?

'A They, did they brought me down?

'Q They brought you down from the hospital?

'A Yeah.

'Q That's the only other trial that you remember?

'A Uh-huh.

'THE COURT: Very well. I have no other questions, Mrs. Weiss.'

It was apparent that the witness was either mentally incapable of testifying as to the events to which he previously testified or was refusing to testify. The court ruled that 'it is obvious that the man is incapable of testifying,' and over timely objections by defendant admitted the prior testimony on the grounds of present incompetence of the witness.

The right to confrontation granted to defendants by the Sixth Amendment to the United States Constitution is also a valuable right for the trier of fact, allowing the witness's demeanor to be observed and his credibility weighed. Government v. Aquino, 378 F.2d 540 (3rd Cir. 1967). The United States Supreme Court has based its decisions on admissibility of prior testimony primarily on the opportunity to cross-examine at the time the prior testimony was taken, Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972), or, if the witness is available, on the opportunity to cross-examine the witness at the trial in which the prior testimony or statement is admitted....

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  • State v. West
    • United States
    • Arizona Supreme Court
    • September 30, 1993
    ...was at issue when the photograph was introduced. Both of these grounds are proper uses of photographic evidence. State v. Thomas, 110 Ariz. 120, 130, 515 P.2d 865, 875 (1973). Although the state eventually relied solely on a theory of felony murder, the photo is still relevant. The state mu......
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