State v. Tyler
| Decision Date | 08 April 1986 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 149 Ariz. 312,718 P.2d 214 |
| Parties | STATE of Arizona, Appellee, v. Gary Louis TYLER, Appellant. 8560. |
| Court | Arizona Court of Appeals |
Appellant Gary Louis Tyler (defendant) was charged by information on June 25, 1984, with one count of possessing a prohibited weapon in violation of A.R.S. § 13-3102(A)(3), a class 6 felony. Prior to trial, the state alleged two prior felony convictions against the appellant.
At the time of trial, the jury found appellant guilty as charged on October 23, 1984. On November 27, 1984, appellant was sentenced to an aggravated sentence of 4.25 years. Appellant filed a notice of appeal on December 3, 1984.
The facts, taken in a light most favorable to sustaining the verdict below, are as follows. On or about August 27, 1983, defendant possessed a sawed-off shotgun, a prohibited weapon pursuant to A.R.S. § 13-3101(6)(d). Fearing that he was to be arrested soon on other charges, defendant removed the weapon from his mobile home and took it to a neighbor, Henry Harnden, for safekeeping. The neighbor, who was highly intoxicated at the time defendant requested help, took the weapon and stored it in his home. Shortly thereafter, Harnden realized that the sawed-off shotgun was a prohibited weapon and contacted the police. Defendant was thereafter arrested.
On appeal, defendant raises the following issues:
(1) Did the trial court err by refusing to grant a mental examination or the production of medical records concerning a state's witness?
(2) Should the trial court have held a pretrial identification hearing regarding the sawed-off shotgun?
(3) Did the trial court err by allowing the defendant to be impeached with his prior felony convictions?
(4) Did the trial court err in not precluding a state's witness?
(5) Did the trial court err in refusing defendant's requested instruction regarding criminal intent?
(6) Did the trial court err by refusing to give a Willits instruction?
Affirmed.
The state's key witness in this case was Brian Varvel, a former neighbor of defendant. At the time of the incident, Varvel was suffering from an epileptic condition and was taking medicine prescribed by his doctor. Varvel was no longer taking medication at the time of the trial. Prior to trial, defendant moved to have a mental examination done as to Varvel's competency or, in the alternative, for disclosure of his medical records. Both motions were denied. Defendant claims it was error for the trial court not to grant a mental examination of Varvel to determine competency or not to disclose Varvel's medical records.
Under Arizona law, every person is competent to be a witness except as otherwise provided by law. Rule 601, Arizona Rules of Evidence. There was nothing to suggest, apart from the witness' illness, that he was currently incompetent to testify. The determination of whether to require a witness to undergo a mental examination is a matter within the sound discretion of the trial court. State v. Piatt, 132 Ariz. 145, 644 P.2d 881 (1981). As the defendant failed to provide an adequate basis for the need for a mental examination of the witness, the trial court determined that a further hearing was not necessary. See State v. Griffin, 117 Ariz. 54, 570 P.2d 1067 (1977). The trial court did not abuse its discretion by denying the request for a mental examination.
As to the medical records, defendant sought the records to look for grounds to impeach Varvel based upon his medical condition. Generally speaking, justice dictates that a defendant is entitled to the benefit of any reasonable opportunity to prepare his defense. State ex rel. Corbin v. Superior Court, 103 Ariz. 465, 445 P.2d 441 (1968). However, whether a criminal defendant is entitled to discover certain evidence is a matter within the trial court's discretion. State v. Roberts, 139 Ariz. 117, 120, 677 P.2d 280, 283 (App.1983).
It must initially be noted that Varvel could invoke (and apparently did invoke) a doctor-patient privilege covering his medical records. See State v. Kevil, 111 Ariz. 240, 527 P.2d 285 (1974). The record also discloses that the medical records were made available to the court for in-camera inspection. The court ruled that the determination of whether disclosure would be made after Varvel's testimony, yet there is no record of any further discussion on this point. Moreover, the effect of the witness' illness and medication on his memory was a proper subject for cross-examination. Defendant had interviewed the witness prior to trial and Varvel freely disclosed the nature of his illness. Defendant has not shown a compelling substantial need for further discovery where the witness had already told defendant and his attorney about his illness and what medication he had been taking. See State v. Kevil, supra. Defendant has shown no abuse of discretion.
Defendant claims that he was entitled to a pretrial identification hearing with regard to the sawed-off shotgun pursuant to State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969), cert. denied, 397 U.S. 965, 90 S.Ct. 1000, 25 L.Ed.2d 257 (1970). Defendant claims that allowing witness Varvel to identify the shotgun prior to trial when an officer showed it to him tainted its identification at trial. Defendant cites no authority for this position, nor explains why Dessureault should be extended from its role of pretrial personal identification of a defendant to identification of items of evidence. Even if defendant had some basis to request such a hearing, the facts of this case show sufficient indicia of reliability to dispel any possible taint. See State v. Perkins, 141 Ariz. 278, 686 P.2d 1248 (1984). Varvel had handled this weapon on several occasions, apparently all within two years of the trial. The weapon in this offense was also undoubtedly distinctive; it had a barrel cut at an angle, several rust marks along the barrel and the name Linda inscribed upon it. It was therefore not error for the trial court to deny defendant's request.
At trial, the defendant was impeached with two prior felony convictions. Defendant had been placed on probation for these offenses, and after an early termination of probation, the judgment had been vacated and his civil rights had been restored. Defendant now claims that, as the judgment had been vacated and probation was terminated early, this implied a finding of rehabilitation, and these prior convictions could not be used against him.
Defendant is incorrect in this assertion. Defendant's prior convictions, which were set aside pursuant to A.R.S. § 13-907, may still be used to impeach him. State v. Fierson, 146 Ariz. 287, 289-90, 705 P.2d 1338, 1340-41 (App.1985). As to defendant's claim that his early termination of probation is in effect a finding of rehabilitation, defendant overlooks the fact that he did not receive a pardon, annulment or a certificate of rehabilitation. Rule 609(c), Arizona Rules of Evidence. The early termination or probation is not by itself an equivalent procedure to those enumerated in Rule 609 based on a finding of rehabilitation. Blankinship v. Duarte, 137 Ariz. 217, 220, 669 P.2d 994, 997 (App.1983). The trial court correctly allowed the use of defendant's prior felony convictions for impeachment purposes.
Maddy Taylor, the manager of the mobile home park where the defendant lived, testified in rebuttal for the state. Taylor's identity was known to the state prior to October 2, 1984, but not disclosed. On October 4, 1984, the state filed a motion for a protective order as they feared for this witness' safety. On October 15, 1984, the witness' identity was disclosed to the defendant. Defendant's attorney contended that he had insufficient time to examine the witness and that she should be precluded from testifying. The trial court considered the matter and ruled that there was sufficient time for the defendant to interview the witness and that discovery sanctions were not appropriate. Trial was set for October 17, 1984, and Taylor testified on October 22, 1984. Defendant now claims that the trial court erred by not invoking the sanction of precluding the witness because of the state's discovery violation.
Rule 15.1(f), Arizona Rules of Criminal Procedure, directs that the state shall disclose the names and addresses of all rebuttal witnesses after receipt of the notice of defenses from the defendant. While a protective order can be granted, delaying the disclosure of the identity of any witness, that disclosure cannot extend beyond five days prior to the date set for trial. Rule 15.5(a). Failure to comply with the provisions of Rule 15 allows the trial court to impose a sanction which it finds just under the circumstances. Rule 15.7(a).
The decision as to which sanction is appropriate under the circumstances is left to the sound discretion of the trial court. State v. Smith, 123 Ariz. 243, 252, 599 P.2d 199, 208 (1979). A witness should be precluded only where a less stringent sanction is not applicable. Id. Here the trial court found that, under the circumstances, the defendant had enough time prior to this witness' testimony to fully interview the witness and prepare for trial. See State v. Zuck, 134 Ariz. 509, 658 P.2d 162 (1982). The trial court's determination will not be reversed on appeal absent a clear showing of abuse of discretion. State v. Stewart, 139 Ariz. 50, 676 P.2d 1108 (1984). As there was sufficient time for the defendant to interview the witness and properly prepare for trial, defendant has failed to show...
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