State v. Verive
| Decision Date | 17 March 1981 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 128 Ariz. 570,627 P.2d 721 |
| Parties | STATE of Arizona, Appellee, v. Charles Anthony VERIVE, Appellant. 4549. |
| Court | Arizona Court of Appeals |
This is an appeal by Charles Anthony ("Carl") Verive (hereinafter "defendant") from his convictions on charges of attempting to dissuade a witness and conspiracy to dissuade a witness. The convictions were based on jury verdicts rendered after a six day trial.
The underlying facts may be stated simply. Howard Woodall had filed a false affidavit with a trial court in relation to civil litigation. Lee Galvin filed an affidavit exposing Woodall's perjury. Upon learning of Galvin's cooperation with authorities in regard to exposing the perjury, Woodall and defendant agreed that defendant would go to Galvin's home and beat Galvin in an effort to dissuade him from becoming a witness against Woodall. In return for this beating, defendant would receive from Woodall $900 and a motorcycle. On December 3, 1973, defendant drove to Galvin's home accompanied by one Mr. Baugh with whom defendant had been drinking. Defendant confronted Galvin in the doorway of the house, saying: Defendant then proceeded to beat Galvin. In response to the scuffle, Galvin's wife started screaming and his son intervened to rescue him.
A few days after this incident defendant and Woodall were arrested by federal authorities on federal charges of witness tampering. Woodall posted bail and was released within a day. Then, Woodall provided defendant with bail money with which defendant secured his release. In 1974, the federal charges were dismissed.
In 1978, Woodall became willing to testify against defendant, after having secured his own immunity from prosecution. The prosecution witnesses were, among others, Mr. Baugh, Galvin's son, Galvin's wife, Woodall's wife, and John Harvey Adamson. Defendant presented no evidence, relying almost exclusively on impeaching the state's witnesses, Howard Woodall and John Harvey Adamson.
Defendant first contends that the trial court erred in denying his timely filed 1 motion for a new finding of probable cause made pursuant to Rule 12.9, Rules of Criminal Procedure, 17 A.R.S. Defendant asserts that his substantive due process rights were violated during the grand jury proceedings.
Before indicting defendant, the grand jury heard testimony of Galvin and Alonzo McCracken, an investigative officer. Woodall did not testify before the grand jury; however, his testimony was communicated through McCracken. Defendant argues that the prosecutor did not reveal several exculpatory matters to the grand jury. First, he objects to the prosecution's failure to disclose Woodall's past history of perjury. Second, he contends that the prosecution knowingly withheld statements, made prior to those presented to the grand jury, in which Woodall denied knowing anything about the alleged witness tampering. Third, defendant protests the prosecution's failure to disclose the 1974 dismissal of federal witness tampering charges.
The propriety of withholding exculpatory material from a grand jury has been discussed in opinions at both state and federal levels. 2 However, we will not determine the propriety of withholding evidence from a grand jury on an appeal from a subsequent conviction. See State v. Neese, 126 Ariz. 499, 616 P.2d 959 (App.1980). The trial jury, after a full trial and complete presentation of the purportedly exculpatory matters, found the defendant guilty beyond a reasonable doubt. We held in Neese that to obtain review of the denial of a motion for a new finding of probable cause, the defendant must seek relief via special action, prior to trial. With one exception, 3 none of the cases 4 cited by appellant involve an appeal from a conviction; rather, the procedural posture of each decision was a pretrial challenge seeking essentially an extraordinary writ to quash the grand jury indictment. We hold that defendant cannot, by appeal from a conviction, obtain review of matters relevant only to the grand jury proceedings that had no effect on the subsequent trial.
Defendant next argues that the trial court abused its discretion under Rule 403, Arizona Rules of Evidence, 17A A.R.S., by permitting the state to call John Harvey Adamson as a witness and by allowing him to testify in his own name. Adamson testified in regard to a conversation with defendant, describing defendant's admission as follows:
This admission was clearly relevant. Defendant does not dispute this. He argues, however, that several factors, taken in combination, precluded allowing John Harvey Adamson to appear as a witness to give this testimony. His arguments are premised on the assumption that Adamson was significantly more infamous than the other witnesses at the trial. 6 In consequence of Adamson's presence, the media's coverage of the defendant's trial was presumably greater than it otherwise would have been, with this increased coverage allegedly creating a "carnival atmosphere" and an increased probability of jury speculation with respect to defendant's background. Moreover, although several of the witnesses had been heavily involved in crime and had received significant publicity, appellant argues that Adamson had greater name recognition and the jury was more likely to associate defendant with organized crime and a criminal history because of his acquaintance with Adamson. Finally, defendant contends that the admission to which Adamson testified was cumulative because several other witnesses had testified as to other admissions made by defendant. We reject defendant's arguments and defer to the trial court's evaluation of the relative merits of permitting John Harvey Adamson to testify. To reject relevant evidence on the basis of unfair prejudice and cumulativeness is within the discretion of the trial court. We will only review for abuse. State v. Carriger, 123 Ariz. 335, 599 P.2d 788 (1979), cert. denied, 444 U.S. 1049, 100 S.Ct. 741, 62 L.Ed.2d 736 (1980).
We first address the defendant's contention that Adamson's testimony was cumulative. Since no one other than Adamson was present during the conversation, this evidence would not have been presented by any other witness. The probative value of an admission made to a person otherwise not entangled in the alleged criminal activities of the witness is obvious. We recognize that several eyewitnesses testified regarding the events of the actual beating incident. However, Adamson's testimony was particularly significant because it provided independent corroboration of Woodall's testimony that the beating was administered pursuant to an agreement and was an attempt to dissuade Galvin from testifying against Woodall.
That the additional media coverage precipitated by Adamson's presence created an increased probability that the jury would speculate regarding defendant's background is not substantiated by the record. Although the record shows that the media covered the trial, it is not clear that Adamson's presence materially increased this coverage. Moreover, through repeated admonition and extensive voir dire the trial court was thorough in preventing the jury's exposure to, or influence by, any such increased publicity. Permitting Adamson to testify under these circumstances was not an abuse of the discretion vested in the trial judge by Rule 403.
The second aspect of the unfair prejudice argument is that defendant's association with Adamson would lead to jury speculation regarding defendant's criminal background. However, the trial court was meticulous in voir dire and instruction to assure that no juror would judge defendant based on his associations with Adamson, or any of the other state witnesses. Moreover, at trial, defendant's only defense was to impeach these witnesses by exposing their criminal pasts. Defendant was associated with all of them. The trial court did not abuse its discretion by permitting but one more of defendant's criminal associates to testify against him in order to reveal defendant's highly probative admission.
As an alternative to excluding Adamson from the trial, defendant contends on appeal that Adamson should have testified under an assumed name. However, defendant's trial counsel abandoned this idea characterizing it as "an exercise in futility". The strongest motive for exposing Adamson's background lay with defendant, whose primary defense tactic was to impeach Adamson's credibility by exposing his past criminal record. We find no abuse of discretion in the trial court's decision to have Adamson testify under his true name.
Having found no error in the trial court's admission of Adamson as a witness, we next consider the propriety of the court's voir dire of the jury. Appellant argues that the trial court erred by exposing the criminal history of witnesses Adamson and Robison to the jurors during individual voir dire. This, according to appellant, deprived him of a fair trial.
The purpose of jury voir dire...
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State v. Moody
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State v. Moody, Arizona Supreme Court No. CR-02-0044-AP (AZ 8/8/2004)
......We do not address this claim, however, because Moody failed to raise it before trial. With the exception of a Basurto violation, a conviction precludes review of the finding of probable cause made by a grand jury. State v. Verive, 128 Ariz. 570, 575, 627 P.2d 721, 726 (App. 1981) (noting that Basurto is the only exception to the rule that a "defendant cannot, by appeal from a conviction, obtain review of matters relevant only to the grand jury proceedings"). . 4. Dr. Goldberg prepared a report detailing the observations ......
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Artiaga v. Ryan
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