State v. Sanders

575 P.2d 822, 118 Ariz. 192, 1978 Ariz. App. LEXIS 408
Court of Appeals of Arizona·Decided January 10, 1978·No. 1 CA-CR 2571·Published·Cited by 11 cases

Opinion

OPINION

JACOBSON, Judge.

The appellant, James Bryant Sanders, was convicted following a trial by jury of aggravated battery, as defined in A.R.S. § 13-245(A)(7). The criminal act was committed when he kicked Officer Cooper of the Phoenix Police Department in the face while the officer was in the process of arresting appellant’s wife for trespass following an acrimonious confrontation in the office of a lawyer who had garnisheed her wages. The offense was designated as a misdemeanor at sentencing and appellant was placed on probation for one year. On appeal, appellant raises three questions:

1. Did the trial court err in allowing the state to present rebuttal testimony that the debt which was the subject of the garnishment was in fact an outstanding unpaid obligation?
2. Did the trial court err in refusing to allow the defendant to cross-examine Officer Cooper in regard to the post-arrest procedure outlined in A.R.S. § 13-1422?
3. Was the evidence sufficient to support the conviction?

FACTS

The undisputed facts or facts tending to support the conviction show that Attorney Dennis Skarecky obtained a judgment against appellant and his wife based upon an indebtedness incurred by them to St. Joseph’s Hospital. Skarecky subsequently caused a writ of garnishment to issue directed to Mrs. Sanders’ employer. When this became known to Mrs. Sanders, she called Skarecky and asked him to release her check. Skarecky indicated that he could not comply. After stating her intention to do so, Mrs. Sanders brought her entire family, including appellant and their children, to Skarecky’s office.

*194 Without invitation, Mrs. Sanders and her children entered Skarecky’s work office. Mrs. Sanders again demanded that Skarecky release her check. She showed him a form from St. Joseph’s Hospital indicating that after “estimated insurance coverage” there would be a zero balance owing. Skarecky had contacted his client and had been advised that the judgment reflected a balance actually owing and that the garnishment should not be released. He advised Mrs. Sanders of that fact and requested that the family leave. When it was apparent that the family would not leave, Skarecky had his secretary call for the police.

The stalemate continued after the police arrived. The two officers (Cooper and McCullough) testified that they attempted to hear the opposing stories, but that Mrs. Sanders was becoming increasingly loud and abusive. The officers directed Skarecky to ask Mrs. Sanders to leave once again and he did so. Mrs. Sanders refused to leave, stating that she would go to jail.

When it became clear that Mrs. Sanders would not leave, the officers and Skarecky discussed arresting Mrs. Sanders for trespass. Skarecky was instructed by the officers to make a citizen’s arrest by placing his hand on Mrs. Sanders’ shoulder and advising her that she was under arrest. When Skarecky attempted to do this, Mrs. Sanders struggled and avoided him. Officer Cooper than attempted to stop her and place her under arrest. In the course of this, Mrs. Sanders bit the officer’s thumb. A dose of “mace” proved ineffective to dislodge the thumb. When Mrs. Sanders did release Officer Cooper’s thumb, she immediately fled from the office and ran down the building stairs. She was assisted in her escape by appellant, who was thereupon placed under arrest, without protest, for obstructing justice.

Officer McCullough caught up with Mrs. Sanders outside the building lobby. When she continued to refuse to submit to arrest, he wrestled her to the ground. He was so engaged in effectuating an arrest when appellant, who had come downstairs with Of-, ficer Cooper, kicked him in the face. The officer suffered a significant injury as a result of the kick.

REBUTTAL TESTIMONY

Appellant contends that it was error for the court to permit the state to call as rebuttal witnesses St. Joseph’s Hospital personnel who gave evidence to the effect that the debt incurred by the Sanders had never been paid. Appellant’s specific contention in this regard is that the action of the trial court permitted impeachment of the Sanders on a collateral matter in violation of Arizona law as stated in authorities such as State v. Mangrum, 98 Ariz. 279, 403 P.2d 925 (1965) and State v. Johnson, 27 Ariz. App. 96, 551 P.2d 86 (1976).

The trial judge placed his reasons for allowing the rebuttal witnesses to testify on the record. He stated in chambers:

“For the record, I want the record to reflect the reason the Court permitted the rebuttal evidence to be received. During the course of cross examination of Mr. Skarecky, counsel for the defendant introduced a bill which was identified by both Skarecky’s secretary and by Skarecky as evidence that the account had been paid and there was some question in the air whether or not the bill had been paid or not. It was the Court’s feeling that the actions of Mr. Skarecky and all of the surrounding circumstances at least had some relation to whether or not the bill had been paid because if in fact the bill had been paid, it would have appeared that the actions of the attorney were, to say the least, outrageous and, furthermore, the justification for the victim or the defendant and the defendant’s wife being there would have significantly changed.
“The Court felt that since that issue had been raised by counsel for the defendant and in fact the exhibit was received in evidence on his motion indicating that the bill had been paid, the Court felt that fairness required that even though it was a collateral matter that the door had been opened and the State should have an opportunity to respond to *195 the inferences which that exhibit raised in the minds of the jury. That is why the continuing objection and the objection to the last two or three witnesses was overruled.”

The difficulty with appellant’s position is that he did not treat the issue of whether or not the debt had been paid as collateral in the trial court. Both upon cross-examination of the state’s witnesses and in direct examination of his own witnesses, defense counsel sought to establish either the nonexistence of the debt or the reasonableness of a belief by the Sanders that the debt had been paid. To hold that the rule against impeachment upon collateral matters bars the introduction of any further evidence on the subject would transform the rule in a case like the present one into a sword rather than its more proper function as a shield. Having injected the matter into the case, appellant cannot claim its exploration as collateral. v 1

Appellant points to the fact that at an early stage of the trial, the trial court sustained an objection to defense counsel’s inquiry into the garnishment on the basis of its collaterality.

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State v. Sanders, 575 P.2d 822, 118 Ariz. 192, 1978 Ariz. App. LEXIS 408 (Ark. Ct. App. 1978).

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