State v. Koch , 138 Ariz. 99 ( 1983 )

FELDMAN, Justice,

specially concurring.

I write because I disagree with the majority’s analysis of the issues pertaining to Clark’s characterization of the “Cassius confession.”

Defendant contends that even though the excluded portion of the tape was an opinion not based on perception, it was admissible as impeachment of Clark’s direct testimony. The trial judge recognized this issue by stating that the

... version that [Clark] gives now in his present testimony ... is certainly less beneficial to the defense than the version that he gave in that statement that he made to Detective Gordon.... Back then [Clark] flat out indicated well, sure [Cassius] was telling me what he had done [, and] so therefore I believe[d] that he had done it.... Now [Clark has] come off of that strong a statement, and ... puts in the word [Cassius] was being investigated for [the crime] and supposedly ... had done [it].

In other words, the issue before the jury was whether Cassius’ statement to Clark was a confession of a crime or an explanation of the police investigation. The initial statement to the police that “I am quite sure [Cassius] did it,” may therefore have been admissible, not for the substantive purpose of showing Clark’s opinion, but as impeachment of Clark’s trial testimony which implied — though never explicitly stated — that Cassius had described an investigatory process rather than made a confession. See State v. Williams, 133 Ariz. 220, 650 P.2d 1202 (1982).

Of course, Clark’s opinion with regard to whether Cassius was truly confessing was not admissible on either side of the issue. If admitted on one side, it was subject to impeachment directly or indirectly on the other. However, Clark was never directly asked and never directly stated whether Cassius had been confessing or merely relating police suspicions and, at best, the excluded portion of the statement had only an indirect tendency to impeach.' In addition, Clark did admit under cross-examination by defense counsel that he had not told the police that Cassius was simply relating investigatory information and that his initial statement had told the police “what Cassius did.”

Q. You said [Cassius] did it three times here?

A. Yes.

Under these circumstances, I believe that even if the portion should not have been excluded, the error, if any, was not prejudicial.