State v. Zuck, 5544-PR

• Decision Date: 15 November 1982
• Docket Number: No. 5544-PR,5544-PR
• Citation: 658 P.2d 162,134 Ariz. 509
• Parties: STATE of Arizona, Appellee, v. Perl Albert ZUCK and John Valenzuela Madrid, Appellants.
• Court: Arizona Supreme Court

Page 162

658 P.2d 162

134 Ariz. 509

STATE of Arizona, Appellee, v. Perl Albert ZUCK and John Valenzuela Madrid, Appellants.

No. 5544-PR.

Supreme Court of Arizona, In Banc.

Nov. 15, 1982.

Rehearing Denied Jan. 26, 1983.

Robert K. Corbin, Atty. Gen. by Bruce M. Ferg, Asst. Atty. Gen., Phoenix, for appellee.

James L. Gjurgevich, Tucson, for appellant Zuck.

Frederic J. Dardis, Pima County Public Defender by Lawrence H. Fleischman, Asst. Public Defender, Tucson, for appellant Madrid.

HAYS, Justice.

After a joint jury trial, appellants Perl Albert Zuck and John Valenzuela Madrid were found guilty of two counts each of armed robbery, aggravated robbery and kidnapping and one count each of first degree burglary, theft and aggravated assault. The trial judge found aggravating circumstances and sentenced each defendant to 42 years' imprisonment.

The Court of Appeals affirmed the trial court. Appellants' motions for rehearing were denied and we granted their petitions for review. We take jurisdiction pursuant to A.R.S. § 12-120.24 and 17 A.R.S. Rules of Criminal Procedure, rule 31.19.

The questions we consider are:

1. Did remarks by the trial judge create a coercive atmosphere for the jury's deliberations?

2. Did the trial court abuse its discretion and deny appellants their sixth-amendment rights to confrontation of witnesses by precluding cross-examination of a state's witness regarding his psychiatric history?

3. Did the trial court abuse its discretion in allowing a state's witness to testify when the witness was disclosed only two days before trial?

4. Did the trial court abuse its discretion in excluding evidence of appellant Madrid's polygraph results from the sentencing hearing?

5. Was appellant Zuck denied his right to a speedy trial under the sixth and fourteenth amendments to the United States Constitution and 17 A.R.S. Rules of Criminal Procedure, rule 8.2?

6. Did appellant Zuck receive ineffective assistance from his trial counsel?

On March 19, 1980, David Fischer and Jeff Jones were at their home in Tucson. Fischer responded to a knock at the front door and was greeted by two men armed with pistols. Holding Fischer at gunpoint, the men entered the house, bound and blindfolded both residents, threatened to ignite them with gasoline and then took stereo and computer equipment worth about $2000. Fischer reports he heard a third voice while the equipment was being taken out the back door.

Four months later, in return for a reduced sentence in an unrelated matter, one Donald Ray ("Billy") Brownfield told police detectives he and appellants Zuck and Madrid had robbed the Fischer-Jones household. Brownfield, Zuck and Madrid were subsequently indicted for burglary, theft, robbery, kidnapping, and assault, and Brownfield's trial was later severed from the trial of appellants.

I

Appellants' first claim is that error occurred when the trial judge made potentially coercive remarks to the jury. The jury had retired to deliberate at approximately 4:35 p.m. and at 8:55 p.m., they sent the judge a note which stated:

"We have taken 4 votes and cannot agree unanimously on a verdict. There are six of us with opposing votes who are sure that based on the evidence we have, our votes will never change. Our last two at 7:10 and 8:45 have been identical."

In response to this note, the judge addressed the jury in open court with all attorneys present. There is no record of what transpired since the court reporter and the clerk had left at 4:30; however, there is general agreement that the judge said it had been a long trial and there had been a lot of evidence. It is also agreed he told the jury that one juror, Mrs. Molina, needed to leave town the following morning at 7:10 to attend a family funeral. Apparently the judge did not want to ask Mrs. Molina to cut short her trip, so he told the jury about her situation and asked them to consider the case further.

At 12:35 a.m., the jury returned with a guilty verdict. The record reflects that the court reporter was present for the verdict; however, affidavits which trial defense counsel submitted with appellants' petition for review state that no court reporter was present at the reading of the verdict. Counsel's affidavits are unacceptable as an attempt to create new evidence, Moran v. Jones, 74 Ariz. 175, 253 P.2d 891 (1953), and, in any event, their statements belie the record which does exist. It is established that where no objection was made by the defendant to proceeding without a reporter, he waives his right to thereafter complain that the proceedings were not reported. State v. Moore, 108 Ariz. 532, 502 P.2d 1351 (1973). Appellants say they could not be expected to obtain a court reporter during the late evening hours and that they are therefore discharged of the responsibility of preserving a record of whatever occurred. We need not consider whether it would have been impossible to find a court reporter or clerk, since counsel apparently did not even request the judge to summon one. At the hearing on the motions for new trial, the judge said:

"It should be pointed out on the record that everything that the Court did in this case, in regards to after the jury went out to deliberate, was done with all three counsel present: counsel for both the defendants and counsel for the State. The Court informed all three counsel exactly of what the Court was going to do. All three counsel agreed that the Court could proceed just exactly in the manner in which it did proceed.

"There was never any objection raised by anybody, to my recollection, as to the manner in which I intended to proceed. And I did proceed in exactly that manner. There was never a motion made for a mistrial at any time prior to the jury verdict."

Appellants fall back on the argument that even if no objection was made, we may consider this issue because there is "fundamental error." They argue that the potentially coercive remarks of the judge could have influenced the jurors, taking from defendant his fundamental right to deliberations by an independent jury.

We fail to find fundamental error here. In Arizona, reversible error occurs when a trial judge communicates with jurors after they have retired to deliberate unless counsel have been notified and given an opportunity to hear the communications and object. This is because of the danger that the accused may be forced to appeal with an incomplete record. State v. Corrales, 121 Ariz. 104, 588 P.2d 846 (1978). Here, both defendants and their counsel were present and did not exercise this prerogative. It is the duty of counsel who raise objections on appeal to see that the record before us contains the material to which they take exception. Where matters are not included in the record on appeal, the missing portions of the record will be presumed to support the action of the trial court. State v. Printz, 125 Ariz. 300, 609 P.2d 570 (1980).

While we unreservedly condemn any sort of interference with the independent deliberations of a jury, since defense counsel waived a record of the proceedings and there is no record for us to consider, we cannot reach the merits of appellants' claim that the trial judge's remarks were potentially coercive and we cannot find fundamental error.

II

Appellants claim that the trial judge erred in granting the state's motion in limine excluding cross-examination regarding Billy Brownfield's psychiatric history and that the exclusion of this cross-examination denied them their sixth-amendment right to confront the witness. Apparently Brownfield had been diagnosed as a paranoid schizophrenic in a recent Rule-11 hearing and had been hospitalized for mental disturbances several years prior to appellant's trial.

We do not consider the constitutional challenge since it was not raised at trial. If evidence is objected to on one ground and admitted over the objection, other grounds not specified are waived. State v. Brierly, 109 Ariz. 310, 509 P.2d 203 (1973).

While wide latitude should be granted in cross-examination, State v. Rothe, 74 Ariz. 382, 249 P.2d 946 (1952), this does not confer a license to run at large, and the trial court can curtail cross-examination's scope. State v. Fleming, 117 Ariz. 122, 571 P.2d 268 (1977). 17A A.R.S. Rules of Evidence, rule 403, ^* gives courts the power to protect witnesses against cross-examination that does little to impair credibility, but that may be invasive of their privacy. The court may prevent cross-examination into collateral matters of a personal nature having minor probative value and tending to bring up collateral matters such as extensive medical histories, which would require unnecessary use of court time. Udall, Arizona Evidence 2d § 82 at 166.

The existence of a derangement of the sort termed insanity is admissible to discredit, provided that it affected the witness at the time of the affair testified to or while on the stand or in the meantime so as to cripple his powers of recollection. 3A Wigmore, Evidence § 932, at 759 (Chadbourn rev. 1970). Many psychiatric problems do not affect a witness's credibility or capacity to observe and communicate. Our Court of Appeals has held that absent a showing that emotional instability of the plaintiff affected her memory, understanding or comprehension, evidence of it was properly excluded. Herman v. Vigil, 11 Ariz.App. 282, 464 P.2d 353 (1970). Rule 403 has been interpreted by other courts as requiring an offer of proof of psychiatric history to attack credibility. See People v. Schuemann, 190 Colo. 474, 548 P.2d 911 (1976); State v. Longoria, 17 Or.App. 1, 520 P.2d 912 (1974); United States v. Lopez, 611 F.2d 44 (4th Cir.1979). We hold that before psychiatric history of a witness may be admitted to discredit him on cross-examination, the proponent of the evidence must make an offer of proof showing how it affects the witness's ability to observe and relate the matters to which he testifies.

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