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State v. Steelman9/13/1978
!--plsfield:text-->that the defendant had no opportunity whatsoever to challenge the witness' testimony before the jury. In the instant case, Steelman was not precluded from cross-examination. He was permitted to present his case to the jury. There is, of course, always the danger in cross-examination of a witness that evidence damaging to the side asking the questions will be revealed. This is one of the risks of cross-examination. Chambers is not applicable and it was not a violation of the right of confrontation to permit the doctors to testify.
DR. WHITE'S REBUTTAL TESTIMONY
The major defense at trial was that Steelman was insane at the time of the Sandberg slayings. In support, Steelman called Dr. James Albert Peale, a board-certified psychiatrist with extensive experience in public mental health and correctional psychiatry. Dr. Peale had examined Steelman twice: the first was in May 1974 at the request of the public defender's office in California and the second was just prior to his testimony at trial. Each interview was more than two hours in length. In addition, Dr. Peale was familiar with the confession which was introduced into evidence during the trial and the defendant's own testimony. On the basis of this information, Dr. Peale testified that he had diagnosed Steelman as having either schizophrenia or a schizophrenic reaction, paranoid type, and moreover, the doctor found that there was indication of organic brain damage of the kind currently associated with trauma. The doctor stated that, to a reasonable medical certainty, on the day the Sandbergs were slain, Steelman was insane according to the M'Naghten test.
On rebuttal, the State called four psychiatrists who had individually examined Steelman and who also were familiar with the confessions and Steelman's trial testimony. Three of these witnesses testified that Steelman was a sociopath and not a schizophrenic and that he was not M'Naghten insane at the time of the crimes. At the conclusion of the State's rebuttal evidence, the defense proposed to call Dr. Patricia White in surrebuttal. Dr. White had been Steelman's treating psychiatrist from December of 1973 until May of 1974. The defense stated it did not intend to call Dr. White for testimony in regard to Steelman's legal sanity on the day of the crime, but in regard to her diagnosis of the defendant's pseudo-psychopathic schizophrenia. The State opposed the testimony on the ground that it was improper surrebuttal evidence as it should have been presented with the case-in-chief on the sanity defense. The trial court agreed and excluded the testimony. Steelman now claims this was reversible error.
The question of what evidence is to be considered proper surrebuttal is one of first impression in Arizona. There have been, however, several cases which had considered what evidence is appropriate on rebuttal. See Central Copper Co. v. Klefisch, 34 Ariz. 230, 270 P. 629 (1928); Lowery v. Turner, 19 Ariz. App. 299, 506 P.2d 1084 (1973). These cases indicate that the decision whether rebuttal evidence should be admitted is within the sound discretion of the trial court and generally will not be disturbed on appeal absent an abuse of that discretion. It follows that the discretion of the trial court in allowing surrebuttal testimony is even greater. Surrebuttal testimony is usually offered to explain away new evidence brought out in the rebuttal presentation or to impeach the testimony presented in rebuttal. Only in rare cases will it be error for the trial court to refuse to admit the testimony. Wigmore on Evidence § 1874.
In the instant case, the State, in rebut
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