State v. Albe, 1

• Decision Date: 04 November 1969
• Docket Number: CA-CR,No. 1,1
• Citation: 10 Ariz.App. 545,460 P.2d 651
• Parties: The STATE of Arizona, Appellee, v. Gene Wright ALBE, Appellant. 173.
• Court: Arizona Court of Appeals

Page 651

460 P.2d 651

10 Ariz.App. 545

The STATE of Arizona, Appellee, v. Gene Wright ALBE, Appellant.

No. 1 CA-CR 173.

Court of Appeals of Arizona, Division 1, Department A.

Nov. 4, 1969.

Rehearing Denied Dec. 8, 1969.

Gary K. Nelson, Atty. Gen., by Carl Waag and Leonard M. Bell, Asst. Attys. Gen., Phoenix, for appellee

Dushoff, Sacks & Corcoran, by Robert J. Corcoran, Phoenix, for appellant.

CAMERON, Judge.

Defendant, Gene Wright Albe, was convicted by a jury and adjudged guilty of the crime of attempted burglary of an automobile (§§ 13--108 and 13--302 as amended, A.R.S.) and was sentenced to 90 days in the Maricopa County Jail. (§ 13--110 A.R.S.) Defendant's motion for new trial and motion in arrest of judgment were denied and defendant appeals. We are called upon

to determine whether the trial court erred in:

1. permitting the defendant to be impeached as to matters which occurred approximately two hours before the alleged crime,

2. administering to veniremen, jurors, and all of the witnesses to be sworn an oath which ends, 'So help you God!',

3. giving certain instructions relating to character evidence and reasonable doubt, and

4. treating the crime of attempted burglary in the daytime as a misdemeanor.

On Friday, 29 September 1967, the police officers for the City of Phoenix were observing the parking lot of the Phoenix College campus. One officer was observing the parking lot from stop a building with binoculars while the other was waiting with a radio on a street next to the parking lot. At approximately 11:50 a.m. on the 29th of September, the officer atop the building radioed to the officer in the car that someone, later identified as the defendant, was attempting to break into an automobile. The officer, on foot, walked to the spot in the parking lot. He testified that from a distance of approximately 30 feet he saw the defendant with a screwdriver inserted itno the window of the automobile. The defendant and another were placed under arrest.

The defendant's explanation was that he was searching for books in his companion's trunk and that the trunk was sticking and required a screwdriver to aid in opening it. He also stated that while he was waiting for his companion to get out of the car with the keys he noticed a 'slick-looking Ford Mustang' parked next to them and he was leaning up against the window looking in when arrested.

During the trial the State introduced testimony by the officers over the objection of the defense counsel that earlier between 9:30 a.m. and 10:00 a.m. the officers had seen the defendant driving slowly through the parking lot with 2 others. On cross-examination the defendant testified as follows:

'Q Mr. Albe, what was your schedule on the 29th of September, 1967, at Phoenix College?

'A Schedule of my classes?

'Q Yes.

'A I had a 9:30 class and a 1:00 o'clock class.

'Q Did you attend classes that day? Yes or no, sir.

'A Are you talking about all my classes that day?

'Q The 9:30 class, did you attend that class?

'A Yes.

'Q What time is it over?

'A Depends on whenever the Professor decides to let it out.

'Q Do you remember what day he let it out?

'A September 29th.

'Q What hour?

'A Well, it was approximately ten or twenty minutes after class began.

'Q So you got out of class that day at approximately 9:50, 10:00?

'A Yes. Somewhere between twenty minutes of ten and approximately five minutes of ten. There isn't a clock in the classroom.'

Defendant further testified that he was in the parking lot about 9:50 or 10:00 a.m. His explanation was that his friends drove up as he was nearing the parking lot and that he got into their car and they drove off campus through the parking lot.

The prosecution, over the objection of defense counsel that this was impeachment on a collateral matter, called the defendant's instructor to the stand in rebuttal. The instructor testified that on 29 September 1967 the 9:30 a.m. English class was held and that defendant was not present

and that class was not dismissed until 10:20 a.m. Defendant's counsel vigorously objected to the introduction of this testimony.

IMPEACHMENT

A criminal defendant may be cross-examined to the same extent and subject to the same rules as any other witness. § 13--163 A.R.S. Arizona is committed to the doctrine of broad cross-examination and allows great latitude in putting questions which seek to impeach the witness. State v. Rothe, 74 Ariz. 382, 249 P.2d 946 (1952), Fuller v. State, 23 Ariz. 489, 205 P. 324 (1922), Garrett v. State, 25 Ariz. 508, 219 P. 593 (1923).

However, our Supreme Court has stated that a witness whether it be the defendant or otherwise may not be impeached by the showing of specific acts of misconduct not sustained by conviction. State v. Harris, 73 Ariz. 138, 238 P.2d 957 (1951), State v. Johnson, 94 Ariz. 303, 383 P.2d 862 (1963). This is true because of the prejudicial effect the specific bad acts have on the jury's reliance upon the veracity of the witness over and above what impeachment would provide. This rule does not apply when the act is not a 'bad act' within the meaning of the rule. This Court has stated:

'In Arizona, neither suicide nor a threat to commit suicide is a crime rendering evidence thereof inadmissible under the rule of State v. Harris, supra. In addition, evidence of the prior threat by defendant to commit suicide could only have been admitted if sufficiently related to the act for which defendant was charged so as to complete the story of the crime. The exception to the general rule known as 'completing the story of the crime' has often been labeled 'res gestae.' * * *' State v. Willits, 2 Ariz.App. 443, 444, 445, 409 P.2d 727, 728, 729 (1966).

We do not believe the fact of cutting class is sufficiently 'bad' so as to prejudice the jury in the determination of innocence or guilt, but even if this was a 'bad act' within the rule we believe the 'complete story doctrine' would apply. Testimony covering the presence and activities of the defendant on the morning of the offense is material to give the jury a complete picture as to time and place and is necessary or helpful to an understanding of the conduct of the defendant. Although discussing other criminal acts which are not the case herein we believe the following by the Arizona Supreme Court to be dispositive:

'Evidence of other criminal acts is admissible when so blended or connected with the crime of which defendant is accused that proof of one incidentally involves the other or explains the circumstances of the crime. (citations omitted) This principle that the complete story of the crime may be shown even though it reveals other crimes has often been termed 'res gestae'. (citations omitted) Udall has criticized the use of this term as 'meaningless and confusing.' To help unconfound this confusion, we choose to refer to this as the 'complete story' principle, rather than 'res gestae'.' State v. Villavicencio, 95 Ariz. 199, 201, 388 P.2d 245, 246 (1964).

GIVING OF OATH

The appellant contends that the oath taken by the jury, defendant, and witnesses ending with the phrase 'So help you God', is contrary to the United States and state constitutions and is reversible error.

The Arizona Constitution, A.R.S., states in part:

'* * * No religious qualification shall be required for any public office or employment, nor shall any person be incompetent as a witness or juror in consequence of his opinion on matters of religion, nor be questioned touching his religious belief in any court of justice to affect the weight of his testimony.' Arizona Constitution, Art. 2, § 12.

And:

'The mode of administering an oath, or affirmation, shall be such as shall be And our statutes state:

most consistent with an binding upon the conscience of the person to whom such oath, or affirmation, may be administered.' Arizona Constitution, Art. 2, § 7.

'An oath or affirmation shall be administered in a manner which will best awaken the conscience and impress the mind of the person taking the oath or affirmation, and it shall be taken upon the penalty of perjury.' § 12--2221, subsec. A, A.R.S.

Our Rules of Civil Procedure provide as follows:

'Affirmation in lieu of oath. Whenever under these Rules an oath is required to be taken, a solemn affirmation may be accepted in lieu thereof.' Rule 43(b), Rules of Civil Procedure, 16 A.R.S.

The veniremen were given the following oath upon voir dire:

'You and each of you do solemnly swear that you will well and truly answer all questions touching on your qualifications to serve as a trial juror in the cause now on trial. So help you God!'

And after they were selected the following oath was given the jury at the time of impaneling:

"You and each of you do solemnly swear that you will well and truly try the issues now on trial and a true verdict render. So help you God!"

The witnesses were given the following oath before they testified:

'You do solemnly swear the testimony that you are about to give to be the truth, the whole truth, and nothing but the truth. So help you God!'

It is the contention of the attorney for the defendant that the oaths given to the jury and to the witnesses is an unconstitutional abridgement of the defendant's rights because they violate the establishment of religion clause of the 1st Amendment of the United States Constitution which is applicable to the States by virtue of the 14th Amendment and the religious qualification clase of the Arizona Constitution. He further asserts that a new trial must be granted to the defendant in which the objectionable oaths are omitted. Appellant cites several cases to this Court in support of his position, but we believe the most pertinent to be Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961) and Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1965). Both of these cases considered the Maryland Constitution Declaration of Rights, arts. 36, 37, which provided that no person should be deemed incompetent...