State v. Clark

616 P.2d 888, 126 Ariz. 428, 1980 Ariz. LEXIS 248
CourtArizona Supreme Court
DecidedJuly 25, 1980
Docket4346
StatusPublished
Cited by189 cases

This text of 616 P.2d 888 (State v. Clark) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Clark, 616 P.2d 888, 126 Ariz. 428, 1980 Ariz. LEXIS 248 (Ark. 1980).

Opinions

HOLOHAN, Vice Chief Justice.

Appellant, James Dean Clark, was convicted after a trial by a jury of four counts of first-degree murder. He was sentenced to death on each count. A timely appeal was filed. We have jurisdiction pursuant to A.R.S. § 13-4031.

The essential facts are that for a year prior to the murders appellant worked as a wrangler at a dude ranch owned by Mr. and Mrs. Charles Thumm located near Elfrida, Arizona. In the early morning hours of December 4, 1977, appellant murdered four persons. Beginning in the wranglers’ quarters, he stabbed to death an older wrangler who was “passed out” in his bed and then shot to death a young wrangler as he slept in his sleeping bag. Appellant next picked up a .357 Magnum from the young wrangler’s room, walked from the quarters to the Thumms’ house and shot to death both Mr. and Mrs. Thumm. After slashing the tires on all vehicles remaining at the ranch, appellant fled the area in the Thumms’ station wagon, taking with him rings and credit cards belonging to the Thumms, guns, including those used in the murders, and a saddle. He was apprehended a few days later in El Paso, Texas.

The issues on appeal are:

1) Did the trial court err in questioning prospective jurors about their views on capital punishment?

2) Did the trial court erroneously deny appellant’s request to tape-record the trial?

3) Was appellant’s right to confront witnesses violated by John Doe’s appearance at the preliminary hearing or at trial?

4) Was appellant denied the right to counsel when he made statements without the presence of counsel?

5) Were photographs of the victims erroneously admitted?

6) Did the trial court err in admitting into evidence a bloodstained pillow?

[431]*4317) Did the trial court err in refusing to grant a mistrial because the courtroom door was locked for a short time?

8) Did the trial court err in refusing a curative instruction regarding a lapse of time between appellant’s arrest and his exculpatory John Doe murder story?

9) Were the jury instructions including a flight instruction erroneous?

10) Is the death penalty unconstitutional, either per se, as violative of the Eighth Amendment or because it excludes the jury from participation?

11) Is the holding of this court in State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978) correct?

12) Did the trial court err in finding three aggravating circumstances and no mitigating circumstances?

Appellant asserts that it was a violation of his right to an impartial jury for the trial court to ask prospective jurors if their opinions on capital punishment would prevent them from making a fair and impartial decision as to appellant’s guilt or innocence. He points out that the Arizona system in capital cases is a bifurcated proceeding in which the jury decides guilt or innocence but has no role in deciding the sentence; therefore, he argues that the issue of capital punishment is irrelevant to the jury’s consideration and should not be asked.

In State v. Ramirez, 116 Ariz. 259, 569 P.2d 201 (1977), we resolved the issue contrary to the appellant’s position. In Ramirez, we ruled that although veniremen may recognize that the jury does not impose the sentence under Arizona law, the prosecution may inquire whether their attitude toward the death penalty would prevent them from making an impartial decision. In this case, no prospective juror was struck for cause simply because of his or her scruples about the death penalty. The trial court carefully followed the mandates of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), in conducting the voir dire of the jury. See also Adams v. Texas,-U.S.-, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980) (48LW4869).

The voir dire and selection of the jury was carried out in conformity with constitutional standards.

Appellant alleges that he was denied the effective assistance of counsel by the trial court’s denial of his request to tape-record the proceedings. Appellant cites 67 A.L.R.3d 1013 and Davey v. City of Atlanta, 130 Ga.App. 687, 204 S.E.2d 322 (1974), as support for this proposition. However, Davey, supra, involved a non-record court. Denial of permission to tape the proceedings was not error where an official court reporter , was present who could have provided partial transcripts if requested. The trial court’s denial of permission to tape the proceedings was not error under the circumstances.

Appellant contends that his right to confront witnesses against him, guaranteed by the Sixth Amendment to the United States Constitution, was denied both at the preliminary hearing and at the trial. The specific instances which form appellant’s complaint involve the appearance of John Doe, a witness for the state at the preliminary hearing and later at the trial. The witness did not give his true name or address at the preliminary hearing or at trial. At the preliminary hearing the witness wore a ski mask to hide his identity, but he did remove the mask briefly so that appellant could see him.

Based on Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968) and Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931), appellant maintains that the trial court committed error by not requiring a new preliminary hearing and by restricting the defense at trial from cross-examining the witness to determine his name and address.

The limitation on cross-examination at the preliminary hearing was not error. The appellant was acquainted with the witness, and he had occasion to be with him in El Paso. The full details of the witness’ activities prior to meeting the appellant may not have been known, but the development of such information was a subject [432]*432more properly covered by the discovery procedure of the Criminal Rules rather than the preliminary hearing. See Rule 15, Rules of Criminal Procedure.

A greater restriction upon the examination of witnesses is permissible at the preliminary examination stage of the criminal process because the preliminary hearing is limited to the determination of probable cause to hold the defendant to answer for an offense. It is not the purpose of the preliminary examination to provide a means for the discovery of evidence. State v. Bojorquez, 111 Ariz. 549, 535 P.2d 6 (1975). The Rules of Criminal Procedure provide a separate and adequate means for the defense to discover the evidence.

Restriction on cross-examination at trial is another matter. In State v. Fleming, 117 Ariz. 122, 125, 571 P.2d 268, 271 (1977), we stated:

“Distinctions between reasonable limitations on the scope of cross-examination and unnecessary restrictions on the right to confront witnesses are, however, difficult to draw and must be considered on a case-by-case basis.

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Cite This Page — Counsel Stack

Bluebook (online)
616 P.2d 888, 126 Ariz. 428, 1980 Ariz. LEXIS 248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-clark-ariz-1980.