State v. Woods

• Decision Date: 17 April 1984
• Docket Number: No. 5637,5637
• Citation: 141 Ariz. 446,687 P.2d 1201
• Parties: STATE of Arizona, Appellee, v. Jerry Dean WOODS, Appellant.
• Court: Arizona Supreme Court

Page 1201

687 P.2d 1201

141 Ariz. 446

STATE of Arizona, Appellee, v. Jerry Dean WOODS, Appellant.

No. 5637.

Supreme Court of Arizona, In Banc.

April 17, 1984.

Reconsideration Denied May 30, 1984.

Robert K. Corbin, Atty. Gen., William J. Schafer, III, Chief Counsel, Criminal Division, Jack Roberts, Asst. Attys. Gen., Phoenix, for appellee.

J. Douglas McVay, Phoenix, for appellant.

FELDMAN, Justice.

Jerry Dean Woods (defendant) was convicted by a jury of first degree murder and armed robbery. Defendant was sentenced to life imprisonment without possibility of parole for twenty-five years on the murder charge, and to a term of twelve years for armed robbery; the terms are to be served consecutively. Defendant filed a timely appeal; we have jurisdiction pursuant to A.R.S. § 13-4033; Ariz. Const. art. 6, § 5(3) and Ariz.R.Crim.P.Rule 31, 17 A.R.S.

The issues raised on appeal are:

I. Did the trial court abuse its discretion by not permitting defendant to impeach a witness by cross-examination about a recent act of misconduct, where the witness had not been convicted of the act in question?

II. Did the trial court err in precluding defendant from playing the tape recorded statement of a key state witness for impeachment purposes, where the witness acknowledged all prior inconsistencies while testifying?

III. Was the prosecutor guilty of misconduct warranting reversal?

IV. Was the defendant entitled to separate forms of verdict distinguishing between felony murder and premeditated murder; if so, was the error fundamental?

V. Did sentencing defendant to consecutive terms violate the double punishment provisions of A.R.S. § 13-116?

FACTS

Defendant and his accomplice, Jeffrey Lange, gave sharply divergent stories of what occurred. It is clear that defendant and Lange intended to hitchhike to Colorado, where Lange had been working. The victim, Pat Eppler, agreed to take the two part of the way. According to defendant, the victim was to drive them to the freeway north of Phoenix where they were to commence hitchhiking. According to Lange, Eppler was to drive them as far as Flagstaff. The three left Phoenix from the home of Lange's mother in Eppler's truck during the early morning of June 8, 1981. They stopped for gas and then proceeded north on the Black Canyon Freeway, headed for Flagstaff. Lange testified at trial that he fell asleep and was awakened sometime later by the defendant. He realized that the truck was stopped on the off-ramp at the freeway interchange. Lange testified that defendant then got out of the truck and joined the victim, who was already outside the truck. Lange testified further that he then heard a shot, looked over his left shoulder and saw the victim falling to the ground. Lange then jumped out of the truck and asked the defendant what he was doing, and defendant responded that Lange should shut up and help load the body into the back of the truck. Lange also testified that about one week later, defendant admitted that he had shot the victim in the ear.

After the shooting, defendant drove the truck several miles further north on the freeway before pulling off onto a dirt road for another three or four miles. Lange testified that defendant then stopped the truck and told him to help unload the body. Lange refused to comply and defendant removed the body from the back of the truck and left it in the desert, several miles north of Carefree. Defendant and Lange then took the truck to Colorado where defendant "sold" the truck for $50. Lange admitted disposing of the gun in Colorado, stating that he had done so because when defendant was drunk, he would wave the gun around. Lange and defendant left Colorado for Arkansas, where they stayed for about a month. Defendant left Arkansas to return to Phoenix, and Lange followed about one week later.

Meanwhile, the parents of the victim had retained the services of a private detective, Michael Roe, to investigate the disappearance of their son. When Lange returned to Phoenix, Roe located him and questioned him about Eppler's disappearance. Lange's conversation with Roe was tape recorded. Lange agreed to accompany Roe to the police station, where he turned himself in. The police questioned Lange on several occasions. After taking Lange's statements the police obtained a warrant for defendant's arrest. Defendant was arrested and interviewed by two detectives. After being given his Miranda rights, defendant confessed that he shot the victim in the right ear with a Derringer, using .22 magnum, hollow point ammunition. In his confession, defendant told the police that Eppler had agreed to take defendant and Lange to the freeway north of Phoenix so that they could hitchhike to Colorado. According to defendant, when he stopped at the Carefree off-ramp to let the defendant and Lange out, Eppler got out of the truck first. Defendant said that he then asked Lange what to do and Lange replied that he "did not want to walk"; defendant responded "Man, what do you want me to do, just shoot him?" Defendant first said that Lange responded "yes", and later said that he was not sure, but that Lange had been in favor of shooting the victim and had served as a lookout. Defendant went on to confess that he then got out of the truck and shot Eppler by putting the gun in Eppler's ear.

Lange was originally indicted along with defendant for first degree murder and armed robbery. Shortly before trial, the state entered into a plea agreement with Lange, whereby the state agreed that in exchange for truthful testimony Lange would only be charged with theft, and the prosecution would recommend probation. Although the terms of the plea agreement had been formulated and agreed upon, at the time of defendant's trial the county attorney had not yet signed the plea agreement, nor had Lange formally pled to a reduced charge.

Lange's trial testimony differed in some respects from the statements that he had originally given Roe and the police officers. He consistently maintained, however, that defendant had shot Eppler and that he had not known that defendant contemplated such an act. Defendant's trial testimony also differed from that contained in his confession. The difference was major. At trial, defendant claimed that Lange, not he, had killed the victim.

I. Did the trial court abuse its discretion in not permitting defendant to impeach a witness by cross-examination about a specific instance of conduct not amounting to a conviction?

Defendant asserts that the trial court grossly abused its discretion by restricting his cross-examination of Lange about a charge of theft by fraud in Arkansas. The alleged theft occurred shortly after the murder. Lange had returned a purchase to an electronics store, received a refund check and cashed it. Through a computer error, he received a second refund check, which he also cashed. A charge of theft by fraud was filed, but later dropped when restitution was made. Before opening statements in the case at bench, defendant informed the court that he planned to use this act for impeachment purposes on cross-examination and to raise the issue in his opening statement. The prosecutor acknowledged that if Lange were asked about the act, he would admit to it. Defendant argued that this questioning was proper under Arizona Rules of Evidence, Rule 608(b), 17A A.R.S. The trial court ruled that, absent a conviction, the "act" could not be used. When defendant raised the issue again before Lange testified, the trial court apparently then ruled that the act was not probative of truthfulness and therefore could not be used in cross-examination to impeach Lange.

Rule 608(b), adopted in Arizona in 1977, states in relevant part:

(b) Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than by conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, ....

17A A.R.S. Rules of Evidence, Rule 608(b).

This court has not had occasion to interpret Rule 608(b) since its adoption. In decisions made prior to adoption of Rule 608 Arizona was aligned with the minority of jurisdictions prohibiting the use of specific acts of misconduct on cross-examination of a witness, unless the witness had been convicted of a crime based on that misconduct. State ex rel. Pope v. Superior Court, 113 Ariz. 22, 24, 545 P.2d 946, 948 (1976). See also State v. Harris, 73 Ariz. 138, 142, 238 P.2d 957, 959 (1951). As we noted in State ex rel. Pope v. Superior Court, supra, there are persuasive reasons for this restriction. One is that such matters are collateral and would unnecessarily consume time and confuse issues. Id. 113 Ariz. at 24, 545 P.2d at 248. See also related discussion of relevancy problems, IIIA Wigmore, Evidence § 982, 839-840 (Chadbourn rev. 1970). Perhaps a more serious problem is the potential for abuse inherent in permitting cross-examination regarding specific acts. Protection of a witness against the potential that he will be questioned about all his past conduct is vital to encourage witnesses to appear and give testimony, as well as to protect them from the prejudicial effect that such allegations, even if denied, carry to the jury. State ex rel. Pope, 113 Ariz. at 24-25, 545 P.2d at 948-949; Wigmore, supra, § 979, and generally §§ 980a, 983. These reasons are also discussed by McCormick, Evidence § 42, 83 (2d ed. 1972).

The comment to our rule notes that State ex rel. Pope v. Superior Court "is consistent with and interpretative [sic] of Rule 608(b)." However, the federal Advisory Committee's notes and the plain wording of the rule itself indicate that this comment is an incomplete characterization. Despite prior authority, under the plain wording of...