State v. Williams, 4027

Decision Date17 November 1978
Docket NumberNo. 4027,4027
Citation587 P.2d 1177,120 Ariz. 600
PartiesSTATE of Arizona, Appellee, v. David Lee WILLIAMS, Appellant.
CourtArizona Supreme Court

Bruce E. Babbitt, Former Atty. Gen., John A. LaSota, Jr., Atty. Gen. by William J. Schafer, III, Georgia B. Ellexson, Asst. Attys. Gen., Phoenix, for appellee.

Donald E. Wolfram, Gary S. Fidel, Phoenix, for appellant.

STRUCKMEYER, Vice Chief Justice.

The Maricopa County Grand Jury indicted David Lee Williams for armed robbery and murder. After a jury trial, he was convicted and sentenced to concurrent terms of life imprisonment for first degree murder and not less than five nor more than fifteen years for armed robbery. He appeals.

Appellant was arrested on an outstanding traffic warrant by two Maricopa County Sheriff's Detectives, James Schultz and Art Moreno. He was taken to the Maricopa County Sheriff's Office, where he was advised of his constitutional rights. Appellant indicated that he understood his rights and would voluntarily answer any questions. He was then told that there was being investigated an armed robbery and homicide in which he, appellant, was believed to have been a participant and that questions which he would be asked would relate to those matters. Again appellant indicated that he would voluntarily answer any question. During the subsequent interrogation, appellant made a number of statements which tended to be incriminating concerning his participation in the robbery/murder of one Leonard Jerome of Tolleson, Arizona. At one point during the interrogation, appellant indicated that he felt he needed a lawyer; nevertheless, the officers continued the interrogation, and further incriminating answers were elicited.

Prior to trial, appellant moved to suppress all statements made to the police. The Superior Court ruled that statements made before appellant's request for an attorney were admissible, but excluded all references to subsequent statements.

Appellant first urges that the trial court erred in refusing to instruct the jury on voluntariness. His request was denied because the trial court was of the opinion that the evidence did not raise a question as to whether his statements were involuntary. Appellant testified at his trial in this fashion:

"Q. At first did you try to deny that you had anything to do with it?

A. At first, yes, I did. I tried to I didn't really know what to do about it. I went and told them what had happened."

It is a principle of law that an instruction must be predicated on some theory of the case which may be found in the evidence, and if not so predicated, an instruction should not be given since the tendency is to mislead the jury. State v. McIntyre, 106 Ariz. 439, 477 P.2d 529 (1970); State v. Randall, 94 Ariz. 417, 385 P.2d 709 (1963). Appellant's testimony at a voluntariness hearing which was not introduced at the trial, to the effect that he had been tricked into confessing, does not raise an issue which would entitle him to the requested instruction on voluntariness. The voluntariness hearing was not in the presence of the jury. Consequently, appellant failed to present any evidence from which the jury could conclude that his statements were involuntary.

Appellant argues from his testimony that since he was told he was under arrest for a traffic violation and something else, there was a factual basis for the instruction. We have examined the record in detail and do not find that this argument of appellant has merit. The court did not err in denying appellant's requested instruction.

Appellant urges that the trial court erred in denying his motion for a mistrial. Appellant moved for a mistrial based in part on the prosecution's examination of Officer Schultz, and on statements made by the prosecutor during closing arguments. The following testimony was elicited from Officer Schultz:

"Q. Did you ask any further questions at that point?

A. I did.

Q. What did you ask?

A. I asked him, 'Did you hear or see the old man get hit?

Q. Did Mr. Williams reply?

A. He replied that at this point Williams advised, 'I think I might need an attorney.' or, 'I think I need an attorney.' "

During closing arguments, the prosecutor made the following statement:

"Now, Mr. Wolfram also talked about what I didn't do as the prosecutor during the case. He says during the examination of Detective Schultz and during the examination of Mr. Young I didn't bring out the fact that Dorsey actually did the beating, as if I was trying to hide it. Mr. Wolfram knows very well why they weren't brought out. They weren't brought out because in the beginning of the case he made a motion to preclude them from being used at this time."

It is appellant's position that these statements when taken together amount to a comment on the exercise of his Fifth Amendment right to remain silent. In support of this argument, appellant cites Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and State v. Rhodes, 110 Ariz. 237, 517 P.2d 507 (1973). However, in both cases the prosecutor commented directly on the fact that the defendant failed to take the stand. In the instant case no such comment was made. Indeed, it would not have been correct to make such a statement because appellant took the stand and admitted before the jury his participation in the crime. Even if these statements should be considered as falling within the spirit of Griffin, which we doubt, we consider that the error was harmless.

Appellant's third claim of error is that the State failed to make a timely and complete disclosure as required by Rule 15, Arizona Rules of Criminal Procedure, 17 A.R.S. The rule requires that the prosecutor shall make available to the defendant for examination and reproduction the written statements of all persons proposed to be called in the State's case-in-chief.

Prior to trial, the State disclosed the written statement which Steven Zaragoza, a proposed witness, had given. In the statement, Zaragoza identified a vehicle from photographs as one Similar to that in which he had observed the appellant sitting on the day of the crimes. Appellant claims that Zaragoza substantially deviated from this by Positively identifying the vehicle as the Same vehicle at the trial. It is his position that the State should have disclosed that the witness intended to change his testimony in this respect.

Appellant's claim is completely without foundation. Zaragoza testified on direct examination "Q. Mr. Zaragoza, I show you what's been marked for identification as Exhibit Number 21, ask you to look at that. You recognize that Exhibit at all?

A. Yeah.

Q. What does that appear to be?

A. A jeep that I saw.

Q. The jeep that you saw. You're referring to the one you previously described as being outside the store?

A. Right.

Q. And again, Exhibit Number 22?

A. Same one.

Q. And Number 20?

A. Same thing.

Q. When you were leaving the store did you take down the license plate number of the jeep?

A. No.

Q. Did you take down any serial number from it at all?

A. No.

Q. Did you attempt to determine any outstanding characteristics of the vehicle?

A. No.

Q. However, looking at those pictures they appear to be the same type vehicle?

A. Yes, they do.

Q. Approximately the same color?

A. Yes."

It is obvious from Zaragoza's testimony that he did not "positively" identify the vehicle as is asserted by appellant. Moreover, the State is not required to provide a word-by-word preview of of a witness' testimony. State v. Wallen, 114 Ariz. 355, 560 P.2d 1262 (1977).

Appellant next contends that the trial court improperly prohibited him from...

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7 cases
  • State v. Gretzler
    • United States
    • Arizona Supreme Court
    • April 21, 1980
    ...expedition into completely irrelevant matter." State v. Shaw, 93 Ariz. 40, 44, 378 P.2d 487, 490 (1963). Accord, State v. Williams, 120 Ariz. 600, 587 P.2d 1177 (1978). See also State v. Robison, 125 Ariz. 107, 608 P.2d 44 We find no error. b. Did the trial court err in refusing a defense m......
  • State v. Jeffers, 4253
    • United States
    • Arizona Supreme Court
    • January 24, 1983
    ...Thus, he concludes, the instructions were not justified by the evidence presented and hence were prejudicial error. State v. Williams, 120 Ariz. 600, 587 P.2d 1177 (1978); State v. Heath, 122 Ariz. 36, 592 P.2d 1302 We find no merit in this argument. The Beadel case, supra, dealt with civil......
  • City of Phoenix v. Superior Court In and For County of Maricopa
    • United States
    • Arizona Court of Appeals
    • August 4, 1994
    ...or authority to seek dismissal of the charges against the plaintiff or to effectuate his release from jail. See State v. Williams, 120 Ariz. 600, 603, 587 P.2d 1177, 1180 (1978) ("[I]t is not the function of the police to determine who will or will not be prosecuted. The decision to prosecu......
  • State v. Jessen
    • United States
    • Arizona Supreme Court
    • July 29, 1981
    ...which tends to mitigate or negate the defendant's guilt", Rule 15.1(a)(7), Arizona Rules of Criminal Procedure. See State v. Williams, 120 Ariz. 600, 587 P.2d 1177 (1978); State v. Wallen, 114 Ariz. 355, 560 P.2d 1262 (App.1977). Hence, we hold Rule 15.1 was not violated when appellant was ......
  • Request a trial to view additional results

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