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State v. Steelman9/13/1978
tal, had contradicted the defense case of insanity without presenting new evidence. There was nothing in Dr. White's testimony which attacked the credibility or otherwise impeached the State's witnesses. The trial court was therefore not required to admit Dr. White's testimony in surrebuttal. We find no abuse of the trial court's discretion. Lowery v. Turner, supra.
But Steelman also claims that the exclusion of Dr. White's testimony was a
violation of his rights under the Fifth and Sixth Amendments of the United States Constitution in that it violated Steelman's fundamental right to present his case by calling witnesses in his own behalf. By precluding Dr. White's testimony, he claims that he was prevented from effectively presenting his case to the trier of fact and therefore was denied the opportunity to be heard. There is no indication that Steelman was denied the right to call Dr. White as a defense witness when Steelman was presenting his case. Steelman instead waited until later and called Dr. White as a surrebuttal witness. By that time, Dr. White's testimony was merely cumulative of the evidence already presented by the defense. The addition of another doctor in surrebuttal who "votes" for the defense is not a sufficiently material addition to the case to reach constitutional proportions. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). We find no error.
WHETHER DEFENDANT'S INSANITY DEFENSE WAS RENDERED IMPOTENT
Again relying on Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), Steelman argues that by excluding both Dr. White's testimony and by permitting the State's doctors to rely on information about which Steelman felt he could not cross-examine them, Steelman was denied the opportunity to present his defense in violation of his rights under the due process clause.
Chambers can easily be distinguished from the present case. In Chambers, Mississippi's "voucher rule" prevented cross-examining one's own witness and the defendant in that case was prevented from careful questioning of a witness named McDonald about that witness' repudiation of an earlier confession to the crime for which defendant was charged. The testimony of other people to whom the witness had confessed was excluded on hearsay grounds. The Supreme Court found that Chambers had been denied the opportunity to present valid evidence and that Chambers had been denied a fair trial.
In the present case, Steelman had every opportunity to present his case to the jury. Since Dr. White's testimony would have repeated the substance of Dr. Peale's, the trial court did not keep the jury from hearing testimony they had not otherwise heard. Furthermore, even though Steelman felt that it would be unwise to probe into the California incidents in cross-examining the psychiatrists who had examined him in connection with those charges, he still had an adequate opportunity to probe into the reasons for their opinions and "sift their consciences" enough to adequately assist the jury in making its own determination in regard to their credibility. Chambers, supra, 410 U.S. at 295, 93 S.Ct. at 1045-46, 35 L.Ed.2d at 308-09. We find no error.
CONSTITUTIONALITY OF THE DEATH PENALTY
After the matter was submitted to this court for decision, the United States Supreme Court in Lockett v. Ohio, U.S. , 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) and Bell v. Ohio, U.S. , 98 S.Ct. 2977, 57 L.Ed.2d 1010 (1978), cast serious question on Arizona death penalty statutes. We have recently held in the case of State v. Watson, 120 Ariz. 441, 586 P.2d 1253,<
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