State v. Gregge

475 P.2d 277, 13 Ariz. App. 185, 1970 Ariz. App. LEXIS 786
CourtCourt of Appeals of Arizona
DecidedOctober 15, 1970
DocketNo. 1 CA-CR 174
StatusPublished
Cited by4 cases

This text of 475 P.2d 277 (State v. Gregge) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gregge, 475 P.2d 277, 13 Ariz. App. 185, 1970 Ariz. App. LEXIS 786 (Ark. Ct. App. 1970).

Opinion

KRUCKER, Judge.

Defendant, Edward Gregge, was tried and convicted of the crime of perjury. A judgment of guilty was entered, and defendant was sentenced to not less than two nor more than three years.

Construing the facts in a light most favorable to sustaining the trial court, they are as follows. At the trial of one Derewood Bible, Gregge testified he had gone hunting with a friend named Travis on [187]*187April 16, 1966, in Black Canyon near Phoenix, Arizona. There he had seen Mr. Bible and a woman some time after 2:00 p. m.

Defendant was subsequently tried for perjury, which is the subject of this appeal. A Mr. Vohwinkel testified that on April 16, 1966, Gregge had been working for him at a service station in Las Vegas. He produced time cards for that entire week showing defendant had worked from 2:00 p. m. to midnight. A Travis Chambers testified denying any such hunting venture and claimed Bible had attempted to bribe him at a bar one night to help him escape a “bum” rape charge.

The jury was unable to reach a verdict and the case was retried.

At the second trial, Mr. Chambers testified he and defendant had met Mr. Bible for the first time in a bar. Mr. Bible had offered to pay Chambers to lie so he could escape being “railroaded.” Mr. Chambers also testified that he had never gone hunting with defendant in Black Canyon. Defendant testified he and a Steve O’Brien (who did not appear) had gone to Phoenix from Las Vegas on April 15th. He had visited some friends, then went to Black Canyon with Travis. There he had seen Bible and the woman through binoculars. Later that day he assisted a friend deliver some sheetrock. Later in June, defendant happened to actually encounter Mr. Bible in Black Canyon. As a consequence of this conversation, defendant agreed to testify.

The jury, on this evidence, found defendant guilty.

Defendant now appeals, raising the following issues:

1. Refusal of the court to provide indigent defendant with transcript of first trial was error.
2. Admitting Chambers’ testimony about Bible’s offer of bribe to him was error.
3. The State’s closing argument, in commenting on matters not in evidence, was error.
4. The State’s references in closing argument to failure of defendant to call witnesses was error.
5. The court’s allowance of conflicting instructions on standard of proof was error.
6. Disallowing admittance of sales slip from Thrift Lumber Supply Company by court was error.

We take them in order.

First, defendant contends as an indigent he was unconstitutionally denied a free transcript of his first perjury trial. In particular, he requested Willie Chambers’ testimony. The Court’s February 1, 1968 minute entry denying defendant’s motions for a transcript reads as follows:

“The Public Defenders Office is provided a budget by the Board of Supervisors of the County, and, therefore, the defendant is not without funds with which to provide a transcript since public funds are provided the Office of the Public Defender.”

In State v. Casey, 10 Ariz.App. 516, 460 P.2d 52 (1969), this court reiterated the rule that the State is not mandated by constitutional provisions to provide a “full paraphernalia of defense.” State v. Bowen, 104 Ariz. 138, 449 P.2d 603 (1969); State v. Chambers, 104 Ariz. 247, 451 P.2d 27 (1969).

We also held that in order for defendant to obtain a transcript, he must make a specific and clear request for a transcript of a named witness’s testimony. Casey, supra. A general request for the entire transcript fails to show need. Austin v. State, 451 S.W.2d 491 (Tex.Cr.App.1970). Other courts have required a showing of prejudice when defendant later contends he was unconstitutionally denied a transcript. United States v. Carella, 411 F.2d 729 (2d Cir. 1969) (a transcript of chief prosecution witness is enough); State v. Keel, 5 N.C.App. 330, 168 S.E.2d 465 (1969) (no prejudice when same attorney tried both cases); State v. Schneidewind, 47 Wis.2d 110, 176 N.W.2d 303 (1970) (access to [188]*188copies available); State v. Green, 55 N.J. 13, 258 A.2d 889 (1969) (record failed to show material discrepancies in testimony beyond those already elicited); Little v. Turner, 402 F.2d 495 (10th Cir. 1968) (prejudice shown when chief witness lost his notes and could not remember facts and transcript held sole information on hearing)-

In the instant case, defendant did specifically request Willie Chambers’ testimony. However,, we do believe the trial court’s denial of the request based on the defendant’s representation by a public defender and his access to funds amounted to a court determination, not that defendant should not have a transcript, but that he showed no need in having it supplied as requested. If indeed the public defender’s office has no transcript funds for defendant, which is not evident by the record as it now stands, the matter should have been resubmitted to the trial court. At this point, the record and decision of the trial court imports verity, and the defendant did not produce counter evidence.

Defendant contends it was prejudicial error for the trial court to admit Mr. Chambers’ testimony that Bible had attempted to bribe him. In particular, he contends it is hearsay, irrelevant, and improperly implies that since Bible tried to bribe Chambers, he might have bribed defendant Gregge.

The testimony elicited and admitted by the court was that Bible offered Chambers $10,000 to commit perjury at his trial. On cross-examination, defense counsel asked Mr. Chambers whether Mr. Gregge, to his knowledge, also had heard the bribe offer. He said, “I think so.” There was also evidence that defendant and Bible played pool together and were seen talking together on the evening Bible offered him the bribe and that they had left the bar together. Mr. Chambers also testified he told defendant of the bribe.

We believe that the evidence in this case was admissible to prove defendant’s motive. In 2 Wigmore, § 392, it is stated that “pecuniary circumstances may properly be admitted as evidencing a motive for some one’s action.” The treatise cites United States v. Quaker Industrial Alcohol Corporation, 2 F.Supp. 863 (E.D.Pa.1932), in which the court approved admission of evidence showing that the business operation under investigation in question was so profitable that the employees might have been bribed. No specific proof of the bribes was introduced. We believe that here, the evidence was illuminating as to defendant’s motive, if believed.

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Bluebook (online)
475 P.2d 277, 13 Ariz. App. 185, 1970 Ariz. App. LEXIS 786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gregge-arizctapp-1970.