State v. Williams
| Decision Date | 05 February 1976 |
| Docket Number | No. 3111,3111 |
| Citation | 113 Ariz. 14,545 P.2d 938 |
| Parties | STATE of Arizona, Appellee, v. Joe Willie WILLIAMS, Appellant. |
| Court | Arizona Supreme Court |
Bruce E. Babbitt, Atty. Gen., William J. Schafer, III, Chief Counsel, Crim. Div., Cleon M. Duke, Asst. Atty. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender, Rudy J. Gerber, Deputy Public Defender, Phoenix, for appellant.
The appellant, Joe Willie Williams, was convicted by a jury of the crimes of kidnapping with the intent to commit rape, rape, armed robbery and theft of a motor vehicle. On appeal he contends that the trial court handled defense counsel's objections in such a prejudicial manner that appellant was denied a fair trial, that the state did not establish the element of penetration as required in a rape conviction, and that the pre-trial 'line-up' procedures were conducted in such a manner so that the admission into evidence of the pre-trial and in-court identification by the prosecutrix constituted a fundamental denial of due process. We take jurisdiction pursuant to Art. 2 § 24 and Art. 6 § 5 of the Arizona Constitution and A.R.S. § 12--120.21. We affirm the judgment.
The facts viewed to support the verdict, State v. Garcia, 102 Ariz. 468, 433 P.2d 18 (1967), are as follows: On August 17, 1974 at sunset the prosecutrix was abducted at knifepoint by the appellant. For approximately two hours she was driven about the environs of Chandler, robbed of approximately seventy-five dollars, and then driven to a plowed field where the appellant raped her. The prosecutrix was then abandoned, and she sought help from the occupants of a nearby farmhouse. The appellant fled, and was apprehended driving the prosecutrix' automobile shortly thereafter. At the Chandler Police Station he was taken to a viewing room where the prosecutrix observed him through a one-way window and subsequently identified him as her attacker.
Appellant first contends that the trial court erred in its manner of handling appellant's objections, and thereby denied him a fair trial. After a review of the record we find no prejudicial error. Appellant contends that the trial judge unnecessarily harassed or badgered defense counsel both within the hearing of the jury and in those proceedings at the bench. The trial court has a duty to 'refrain from making unnecessary comments or doing any act which might cause prejudice * * * or * * * influence minds of the jury.' Browning v. State, 53 Ariz. 174 at 183, 87 P.2d 112 at 116 (1939). It follows that remarks made outside the hearing of the jurors, even if prejudicial to the appellant, could not keep the jury from exercising an impartial judgment on the merits, and do not warrant a reversal. Paddock v. United States, 320 F.2d 624 (9th Cir. 1963).
The remarks and rulings objected to, made in the presence of the jury, in context with other questions by counsel and rulings of the court, were not calculated to influence the minds of the jury. Appellant alleges that the trial court ruled against his objection, and then refused to allow him to argue the basis for his objection. The record, viewed in its entirety, does not support this allegation, nor does it indicate hostility or prejudice toward the appellant that would deprive him of a fair trial. See State v. Ortiz, 9 Ariz.App. 116, 449 P.2d 953 (1969). Defense counsel's objection had been offered previously, counsel had been permitted to offer his basis for the record and the trial court had ruled on the point of law. In such an instance the court is within its sound discretionary limits when it refuses to allow counsel to again state the basis for the continuing objection. Statements by the judge that are neither an improper comment to the jury nor prejudicial to the defendant do not constitute error. See State v. Altman, 107 Ariz. 93, 482 P.2d 460 (1971). Appellant also alleges that the trial court limited his cross-examination and recross examination of witnesses.
'(T)here is broad leeway in cross-examination, (but) the control of cross-examination is left to the sound discretion of the trial judge and will not be disturbed on appeal in the absence of a showing from the record of an abuse of discretion.' State v. Thomas, 110 Ariz. 106 at 109, 515 P.2d 851 at 854 (1973).
The record fails to disclose that the denial of the right to recross-examine the witness was prejudicial to the appellant's case.
'The principal purpose of recross is to clarify any new or confusing matters brought out during redirect.' State v. Jones, 110 Ariz. 546 at 550, 551, 521 P.2d 978 at 982, 983 (1974).
The State on redirect brought out the fact that the testifying witness, Officer Nash, not only knew a person by the name of Brian but that he knew that his last name was Randall. On direct examination the subject of Brian had been first raised. Defense counsel on cross-examination had pursued this topic. Further, at the voluntariness hearing the State had introduced into evidence a police form that had a notation on the back of it referring to Brian Randall.
'8:30--9:00 P.M. met Brian Randall with car at S. Side.'
Defense counsel was therefore on notice as to Brian's last name and had had a full opportunity to cross-examine Officer Nash as to any knowledge that he may have possessed in regards to this issue. We acknowledge that the better procedure is for the court to inquire into the nature and purpose of the proposed recross examination before denying a party's request. However, under the facts of the instant case we find no abuse of discretion in denying to defense counsel the right to recross examination.
Appellant's second contention is that the state did not establish the element of penetration as required for a valid rape conviction.
'Although the essence of the crime of rape is the outrage to the person and feelings of the victim, § 13--612 A.R.S., there can nevertheless be no rape without some penetration, however slight.' State v. King, 110 Ariz. 36 at 40, 514 P.2d 1032 at 1036 (1973).
The record discloses that the prosecutrix testified that 'he (the appell...
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State v. Bible
...must refrain from taking any action calculated to influence the jury or likely to prejudice the defendant. See State v. Williams, 113 Ariz. 14, 16, 545 P.2d 938, 940 (1976). There is no indication that the trial judge's statements were either designed to prejudice or likely to do so. Many o......
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State v. Smith
...that level of certainty favored admission where the witness responded "immediately and without hesitation"); State v. (Joe ) Williams , 113 Ariz. 14, 18, 545 P.2d 938, 942 (1976) (stating that identification was reliable in part because the witness testified that "she was sure" about the id......
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Campbell v. State, 4820
...that the suggestibility of preliminary hearings does not per se taint the subsequent in-court identification, citing State v. Williams, 1976, 113 Ariz. 14, 545 P.2d 938, where the pretrial identification was of a man manacled to a police officer (not at a preliminary hearing). We conclude t......
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State v. Smith, 5595
...110 Ariz. 546, 550, 521 P.2d 978, 982, cert. denied 419 U.S. 1004, 95 S.Ct. 324, 42 L.Ed.2d 280 (1974), quoted in State v. Williams, 113 Ariz. 14, 16, 545 P.2d 938, 940 (1976). In the instant case the judge offered the defendant a full opportunity to recross-examine the witness on any new a......