State v. Stoneman , 115 Ariz. 594 ( 1977 )

CAMERON, Chief Justice,

dissenting.

I regret that I must dissent.

The pair of brown levi-type trousers was found in a hamper where the defendant and others resided. It was an important item of evidence linking the defendant to the crime. At the first trial, a detective testified that he had been told that the brown trousers belonged to the defendant. Prior to the second trial, the defendant made a motion in limine to preclude the detective from again giving this hearsay testimony. The trial court granted the motion in limine regarding the hearsay testimony but allowed the detective to interpret for the jury the testimony of the defendant at the first trial. The questioning of the defendant on cross-examination at the first trial was as follows:

“Q I show you Exhibit No. 83, which was the brown trousers. Can you explain to the jury how this fecal material got on the cuffs of your pants?

“A I was at the Arizona Livestock Show, I believe it was Saturday. I am not sure which pair of pants I was wearing on that date, though.

“Q How long prior to the time of your arrest did you wear the pants to the Arizona Livestock show?

“A I believe that it was on Saturday, the same day I talked to Mr. Aurelius.

“Q Where was that Arizona Livestock Show?

“A At the Coliseum located at 19th Avenue and McDowell.

“Q Do you specifically remember the incident that occurred when you got the fecal material on your pants?

“A No, sir, I do not.”

In allowing the officer to testify as to the ownership of the trousers based upon defendant’s testimony at the trial, the court stated:

“I feel that there is sufficient identification that was made at the trial, although it could have been a little bit clearer for the Officer to indicate if questioned on this point the ownership of the trousers. I will permit you, Mr. DeMars, to ask the witness where the trousers were obtained, who was living at that residence, if he knows who the trousers belonged to, and stop your questioning there.”

The officer therefore answered at the second trial as follows:

“Q Now, do you know who those brown trousers belong to?

“A Yes, I do.

“Q Who?

“A Mr. Stoneman.

“Q James Stoneman?

“A Yes.”

The defendant contended, and I agree, that by this procedure the court usurped the jury’s function as the trier of fact and defendant’s right to trial by jury was violated.

Generally, a defendant who has testified in his own behalf in a criminal prosecution may have that testimony used against him on retrial after a remand or new trial has been ordered, Indian Fred and Hostein Set Chizzy Bega v. State, 36 Ariz. 48, 282 P. 930 (1929); London v. Patterson, 463 F.2d 95 (9th Cir. 1972), and this is true even though the defendant elects not to take the stand and testify in his own behalf at the second trial. State v. Wilson, 57 N.J. 39, 269 A.2d 153 (1970). See Annotation, 5 A.L.R.2d 1404, 1411.

But the jury at the second trial still must determine the facts to be drawn from said prior testimony; that is the function of the jury as the trier of fact and is part of defendant’s right to trial by jury as prescribed by Art. 2, Sec. 23 of the Constitution of Arizona. We have stated:

“ * * * It is, we believe, the universal rule for the court to pass on and decide all questions of law that may arise in the course of the trial, and for the jury to determine the^uestions of fact. The rule of law requires the court to determine the issues of the case and to regulate the introduction of evidence offered to prove or disprove such issues, and to submit to the jury for their determination the issues having support in the evidence * * Singh v. State, 35 Ariz. 432, 445, 280 P. 672, 676 (1929), 67 A.L.R. 129, 136.

To allow the witness to draw the factual inferences for the jury is a violation of defendant’s right to have the facts determined by the jury, and the procedure followed here was a violation of defendant’s right to trial by jury. Art. 2, Sec. 23, Arizona Constitution.

I also believe that the drawing of an inference from previous facts and allowing that inference to be presented to the jury as a fact is an indirect comment on the evidence which the judge is forbidden to do by Art. 6, Sec. 27 of the Constitution of Arizona.

“ * * * A judge comments on the evidence when he expresses to the jury his opinion of what the evidence shows or does not show, (citation omitted) The inferences derived from the evidence are peculiarly within the jury’s province. An invasion of this would constitute error where prejudicial. Gibbs v. State, 48 Ariz. 25, 58 P.2d 1037 (1936).” State v. Godsoe, 107 Ariz. 367, 370, 489 P.2d 4, 7 (1971).

By allowing the witness to state his conclusions drawn from defendant’s prior testimony that the trousers were defendant’s, the court usurped the province of the jury to determine if the trousers were in fact the defendant’s. It is of no moment that had the defendant’s testimony been read to the jury they would, in all probability, have drawn the same conclusion. It is the jury’s function to draw that conclusion not the judge’s.

Because the evidence in this case is not even, at its strongest, conclusive of defendant’s guilt, I cannot say that the admission of the officer’s testimony was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).