## Facts

- Howard Woodall filed a false affidavit in civil litigation; Lee Galvin later filed an affidavit exposing Woodall’s perjury.
- After learning of Galvin’s cooperation with authorities, Woodall and Charles Anthony Verive agreed Verive would go to Galvin’s home and beat him to dissuade him from becoming a witness against Woodall.
- Woodall promised Verive $900 and a motorcycle in exchange for carrying out the intimidation.
- On December 3, 1973, Verive went to Galvin’s home with a companion after drinking; at the doorway Verive said, “Do you know Howard Woodall? Well, he sent us,” and then beat Galvin until Galvin’s wife screamed and Galvin’s son intervened.
- Days later, Verive and Woodall were arrested on federal witness-tampering charges; Woodall posted bail and supplied money enabling Verive to secure his release.
- The federal charges were dismissed in 1974; in 1978, Woodall obtained immunity and agreed to testify against Verive.
- At trial, the State presented testimony from Galvin’s family members, Verive’s companion, Woodall and Woodall’s wife, and cooperating witness John Harvey Adamson; the defense presented no evidence and focused on impeachment.

## Issues

1. Whether the grand jury proceedings were so defective that the defendant was entitled to a new probable-cause determination under Arizona Rule of Criminal Procedure 12.9.
2. Whether the trial court erred by allowing John Harvey Adamson to testify under his own name, given concerns about prejudice and credibility.
3. Whether the State’s reliance on an immunized witness (Woodall) and a cooperating witness (Adamson) rendered the trial unfair or constituted prosecutorial misconduct.
4. Whether convictions and punishment for both conspiracy to dissuade a witness and attempt to dissuade a witness arising from the same plan and assault were barred as double punishment or because one offense was lesser-included of the other.
5. Whether the evidence was sufficient to prove an “attempt” by conduct beyond mere preparation.

## Decision

- The Court of Appeals affirmed the convictions for attempting to dissuade a witness and conspiracy to dissuade a witness.
- The court upheld denial of the Rule 12.9 motion, concluding the grand jury presentation supported probable cause and was not constitutionally defective.
- The court found no reversible error in permitting Adamson to testify under his real name.
- The court rejected claims that use of immunized/cooperating witnesses denied a fair trial, emphasizing that credibility determinations were for the jury and that the defense had the opportunity to impeach and cross-examine.
- The court held the defendant could be convicted and punished for both attempt and conspiracy because each offense requires proof of an element the other does not.
- The court found the attempt conviction supported by acts beyond preparation, including going to the victim’s home, identifying the sender, and assaulting the victim to intimidate him.

## Legal Principles

- A challenge to grand jury proceedings must be brought through the mechanism provided by Arizona Rule of Criminal Procedure 12.9; relief requires a showing of legally significant defect affecting the probable-cause determination.
- Attempt requires proof of conduct that goes beyond mere preparation toward commission of the targeted offense.
- Conspiracy focuses on the agreement to commit an offense (and any required further step); attempt focuses on the defendant’s concrete actions toward commission of the offense.
- Conspiracy and attempt are not in a lesser-included relationship when each contains an element the other lacks; convictions for both based on the same course of conduct are not barred on that ground.
- Testimony from immunized or cooperating witnesses is not improper per se; reliability and bias are generally matters for jury evaluation through cross-examination and impeachment.

## Conclusion

The court affirmed convictions for conspiracy and attempt to dissuade a witness, holding that the grand jury process and trial rulings did not warrant reversal and that attempt and conspiracy are distinct offenses permitting separate convictions where the evidence shows both an agreement to intimidate a witness and actions beyond preparation taken to accomplish that goal.


State v. Verive, 128 Ariz. 570, 627 P.2d 721 (Ct. App. 1981)