State v. Tucker
| Citation | 157 Ariz. 433,759 P.2d 579 |
| Decision Date | 02 June 1988 |
| Docket Number | No. 6711,6711 |
| Parties | STATE of Arizona, Appellee, v. Eugene Walter TUCKER, Appellant. |
| Court | Supreme Court of Arizona |
Robert K. Corbin, Atty. Gen., William J. Schafer III, Chief Counsel, Crim. Div., Joseph T. Maziarz, Asst. Atty. Gen., Phoenix, for appellee.
Frederic J. Dardis, Pima County Public Defender, Frank P. Leto, Pima County Deputy Public Defender, Tucson, for appellant.
Appellant Eugene Walter Tucker was convicted of one count of first degree murder in violation of A.R.S. § 13-1105 and sentenced to life imprisonment without the possibility of parole for 25 years. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13-4031, -4035.
Appellant raises the following issues for review:
1. Did the trial court abuse its discretion in denying Tucker's motions to continue and to preclude one of the State's witnesses from testifying where the State failed to timely disclose its witnesses?
2. Was appellant denied a fair trial where the State destroyed partial, latent fingerprints and the trial court gave the jury a Willits instruction?
3. Were appellant's statements to the police involuntary?
4. Was appellant denied a fair trial because the trial court refused to instruct the jury on motive and manslaughter?
5. Was appellant denied a fair trial because of the prosecutor's questions concerning appellant's parole status?
On August 8, 1984, Tucker and Thomas Roper drove to a bar to have lunch. Roper was the owner of the apartment complex where Tucker and his girlfriend, Janet Professori (Janet), 1 lived. Shortly after they arrived, the victim, Robert Broussard, asked Tucker and Roper if they were interested in playing pool. They agreed, and the three of them played pool for approximately an hour. During this time, Tucker and Roper each drank about four beers.
The trio decided to go to the Dream Street, a nightclub about a 20-minute drive away. They rode together in Roper's truck and arrived at about 5:00 p.m. The three took a table, ordered more beer, and talked. At one point, Tucker and Broussard argued, and Broussard left the table. Later, Broussard rejoined Tucker and Roper at the table.
About a half hour later, Tucker walked to the telephone to call Janet to ask for a ride home. While Tucker was making the call, Roper went to the men's room because he was feeling ill. When Roper returned, both Tucker and Broussard were gone. The table had been cleared, and Roper's key ring which he had left on the table, was gone. Roper walked outside and saw Broussard's body lying on the ground covered with a blanket.
That day, Janet had arrived home at approximately 4:30 p.m. and noted that her .38-caliber revolver was missing. Fearing that Tucker had taken the gun, she tried to locate him through his friends, George and Rosemary Stair, and the apartment manager. At about 5:30 p.m., Janet received Tucker's call, asking her to come and get him before he did "something crazy." She immediately drove to the Dream Street bar and arrived at about 6:00 p.m.
Janet gave the police a taped, eyewitness account of the murder after Tucker's arrest later in the evening. According to this statement, as Janet got out of her truck, she saw Tucker exit the bar. Another man, Broussard, followed Tucker out the door. Broussard approached Janet and asked if she "got high." Janet said she didn't, and Broussard apologized to her. Janet said to Tucker, "Let's go home," and turned, heading for her truck. Broussard walked away, and Tucker followed after him. As Janet got back into her truck, she saw Tucker point a gun at Broussard, heard the weapon discharge, and saw Broussard fall to the ground.
After the shooting, Tucker got into Janet's truck, saying, "Let's get out of here." As she was driving, Janet saw her gun on the floor of her truck. When they arrived at their apartment, Tucker directed Janet to pack a suitcase for him because he "need[ed] to get out of here." Janet did as requested, and then helped Tucker jump-start his truck and followed him to the home of George and Rosemary Stair. En route to the Stairs' home, Janet wrapped the gun that was still on the floor of her truck in a white T-shirt. At trial, when Janet (by then Mrs. Tucker) recanted this account of the murder, her taped statement was played for the jury.
A passerby, Milton Cole, also witnessed the shooting. Cole was walking toward the bar when he noticed two men walking out. According to Cole, one of the men appeared to grab something out of a truck and shoot the other man in the head. Cole then saw the first man and a woman jump into the truck and drive away.
At the Stairs' house, Tucker told the Stairs' daughter, Donna Burwell, "I just blew a guy away." George Stair was not at home, but Tucker spoke with him on the telephone. Burwell overheard Tucker say, "You know, Dad, nobody messes with my turf." Burwell saw Tucker consume four or five beers at the Stair residence.
In the meantime, Janet had returned to the apartment and called the police. She gave the gun to the police and made her taped statement. Tucker was apprehended at the Stair residence without incident. After being arrested, Tucker made inculpatory statements concerning the murder weapon and how the victim was killed. The police took Tucker to his apartment, questioned him, and then transported him to the Tucson police station for an intoxilyzer test. Finally, the police transported Tucker to the Pima County Jail. En route, Tucker gave his version of the shooting incident, which was different from the story he related at trial.
Tucker claims that he was denied a fair trial and the right to prepare his defense. He bases this claim in part on the trial court's denial of his motion for a continuance, which he requested because the State failed to timely disclose its witness list. He also maintains that the judge erred in allowing the State to present the testimony of an undisclosed witness.
Tucker was arraigned on one count of first degree murder on August 27, 1984. In October 1984, Tucker filed his Rule 15 notice of disclosure, 2 listing potential defenses to the murder charge. The public defender who represented Tucker during the trial was assigned to the case in late April or May, 1985, 3 and first appeared of record at the May 17, 1985 pre-trial conference. The trial judge set August 13, 1985 as the firm trial date at that conference.
Shortly after taking over the case, trial counsel wrote to the prosecutor and requested a list of witnesses in order "to begin as soon as possible the interview process." After waiting approximately two weeks, defense counsel filed a motion for disclosure of "[t]he names and addresses of all persons whom the prosecutor will call as witnesses in the case in chief." On July 1, 1985, the trial court granted the motion and ordered the State to disclose its witnesses by July 5. 4
When the State failed to provide its witness list by July 9, defense counsel filed a motion for sanctions, including "immediate disclosure under penalty of incarceration," for the prosecutor's failure to comply with Rule 15.1 and the subsequent court order. At the July 15 hearing on this motion, the State claimed that the witness list was "in the mail." Defense counsel intimated that he might require a continuance in order to interview all persons mentioned in the disclosed materials. The court criticized defense counsel for his penchant for filing motions and for "wait[ing] around to the 15th" before complaining about the State's failure to disclose. 5 The court told the parties that "[the trial] isn't going to be delayed one day," and ordered the State to hand-deliver a witness list by 5:00 p.m. that day, July 15, 1985.
Pursuant to this order, the State presented a list of 29 potential witnesses: 5 police ID technicians, 12 police officers, and 12 civilians. On July 26, Tucker filed a motion to continue the August 13th trial date and for sanctions. Tucker claimed that the prosecutor had intentionally sent defense counsel on a "fishing expedition" and "wild goose chase" in order to prejudice and interfere with counsel's investigation and trial preparation.
At the July 29 hearing on the motion, Tucker contended that the witness list included virtually every name mentioned in the previously disclosed police reports and that it was not a realistic list of the persons the State intended to call in its case-in-chief, as required by Rule 15. According to Tucker, the list included several persons only remotely connected to the case. 6 In addition, Tucker asserted that this list, which was provided approximately one month before trial, was his first notice that the eyewitness Cole resided outside Arizona. Further, Cole could not be reached at the motel that was listed as his address.
Thus, Tucker argued that, because of the State's failure to disclose the witnesses for its case-in-chief, a continuance was necessary because defense counsel would not be able to interview each of the 29 potential witnesses in the 14 days remaining before the trial was scheduled to begin. Counsel also asserted that "appropriate representation" required a face-to-face interview with Cole, but a trip to New Jersey was "all but precluded" without a continuance because of the State's late disclosure and defense counsel's trial schedule. 7
The State contended that Tucker's complaints about the witness list were "nothing but an artificial barrier," noting that defense counsel had already written to the 29 potential witnesses and had conducted some interviews and scheduled others. The prosecutor asserted that he disclosed "everybody" to prevent being accused of "hiding witnesses" and because he was unsure of the accused's defenses and the issues that might require rebuttal, such as the victim's violent character. In addition, the prosecutor noted that around July...
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