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State v. Dixon6/3/2005
reements may only be conditional upon the accomplice witness testifying completely and truthfully, and consistency provisions in such agreements are not enforceable. As noted in Rivera, this does not leave the prosecutor without an effective remedy should the accomplice witness change his or her testimony at trial:
"The recourse the State has in such a circumstance is to impeach the witness with her previous statements. It would then be the jury's duty to determine which version of the witnesses's account to credit, if any. Of course, by changing her testimony from that of a previous version, the accomplice witness would put at issue whether she had testified truthfully at trial, and thus whether she had complied with the terms of her plea agreement and was entitled to receive the benefit of that plea agreement." 207 Ariz. at 389.
As to retrial, the court held:
" he State cannot introduce the testimony of Valenzuela or Saiz from the previous trial to establish Rivera's guilt. Additionally, to establish Rivera's guilt the State cannot introduce any statements made by Valenzuela or Saiz after they entered their plea agreements and before any taint caused by the consistency provisions in their plea agreements has been removed.
" e similarly find no reason to preclude the testimony of Valenzuela and Saiz during the new trial if the court takes appropriate steps to remove the taint of the improper provisions. As the facts of this case demonstrate, the accomplice witness herself must be informed that the consistency provision is unenforceable prior to her testimony. If she is not so informed, and thus testifies under the belief that the clause is valid, her testimony will still be tainted by the consistency provision. To 'not enforc the offending clause' and to make 'full disclosure of the terms and circumstances of the agreement,' a trial court is obliged by Fisher to ensure that the witness, any counsel she may have, the parties to the underlying prosecution, and, in appropriate cases, the jury in the underlying prosecution, are aware that any consistency provision in a plea agreement entered by an accomplice witness cannot be enforced. [176 Ariz.] at 76, 859 P.2d at 186. The State may only condition plea agreements on the completeness and truthfulness of any proffered testimony. This course of action removes any motivation for the accomplice witness to provide particular testimony and will appropriately protect Rivera's rights while also allowing the State to fairly re-prosecute its charges against Rivera." 207 Ariz. at 391.
We conclude that it was error to allow Jerry Hall to testify. However, since Hall's testimony was basically the same as that of Rodney Hayes, the error was harmless. We are reversing on other grounds, and, upon retrial, the State is precluded from using Hall's trial testimony or any statements made after he entered into the plea agreement. The provision stating that he would "testify on behalf of the State of Kansas in a consistent and truthful manner as set forth in his inquisition" is unenforceable. Hall may testify if, upon retrial, the trial court takes the necessary steps to ensure that Hall, his counsel, the prosecutor, and, if appropriate, the jury, are aware that the consistency provision in the plea agreement and probation order cannot be enforced.
10. DID THE DISTRICT COURT ABUSE ITS DISCRETION IN ALLOWING THE PATHOLOGIST TO TESTIFY THAT THE VICTIMS' DEATHS WERE HOMICIDES?
Dr. Erik Mitchell testified that the cause of the deaths of Dana and Gabriel Hudson was exposure to heat and inhalation of fire gases. Over the objection of defense counsel, Dr. Mitchell was also allowed to testify that the manner
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