State v. Anderson
Decision Date | 31 July 1973 |
Docket Number | No. 1--CA-CR,1--CA-CR |
Parties | STATE of Arizona, Appellee, v. Robert Austin ANDERSON, Jr., Appellant. 506. |
Court | Arizona Court of Appeals |
Gary K. Nelson, Atty. Gen. by Thomas A. Jacobs, Asst. Atty. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender by Anne Kappes, Deputy Public Defender, Phoenix, for appellant. JACOBSON, Chief Judge of Division One.
The defendant, Robert Austin Anderson, Jr., has after a jury trial, appealed his judgment of conviction and sentence to prison for burglary and grand theft.
Since the defendant does not question the sufficiency of the evidence to sustain the jury's verdict of guilty (and our review of the evidence affirms that sufficiency), we set out only those facts which are necessary to decide the issues raised.
The State in its case in chief called as a witness, Edward Ingalls, to prove the guilt of the defendant. Ingalls testified that on the evening of August 13, 1971, he accompanied the defendant to the defendant's former residence at 1643 North Markdale, Mesa, Arizona; that he observed the defendant open a window, enter the house through that window and then let Ingalls in the front door. Ingalls then identified certain cameras stolen from the house and specifically testified that the defendant had removed these from the home. Further, Ingalls testified that his purpose in accompanying defendant to the house was to assist in removing some personal property which the defendant said he had left in the house. Ingalls then testified that the following day he and the defendant went to Ken's Cash Box where the defendant sold the cameras in question for $50.00, Ingalls receiving $25.00 and the defendant keeping $25.00. While in the State's case in chief he denied any prior knowledge of the defendant's actions and maintained that his presence at the Mesa residence was completely innocent, Ingalls did acknowledge that at the preliminary hearing he testified he took one camera from the house and the defendant took the other. Further, on cross-examination he testified:
'Q. Isn't it true that you entered a plea of guilty to one count of burglary and one count of grand theft and that you were sentenced on those?
'A. Yes, sir.
'Q. You pled guilty but you're trying to tell this court here today and jury that you didn't know anything about it?
'By the way, what was your sentence?
'A. A year's probation.
The court instructed the jury generally on the necessity for corroboration of the testimony of an accomplice in order to convict, the definition of an accomplice and 'whether any witness in this case was an accomplice is for you to determine.' No objection was made to this instruction nor did the defendant make any request that the court instruct the jury that Ingalls was an accomplice as a matter of law.
The defendant took the stand in his own behalf and testified that he lived at the residence in question and that the other residents of the house had been picked up by the police; that when he went back to the house he found it locked and that he only entered the home for the purpose of retrieving certain personal items that belonged to him. He further testified that he only removed those items which belonged to him and the first knowledge he had of the cameras was when Ingalls showed them to him after leaving the house. During cross-examination of the defendant the prosecutor asked the following question:
In closing argument, the prosecutor referred to this cross-examination of the defendant as follows:
'He waited until now to tell this story.'
No objection was made either to the above cross-examination or closing argument. Again, in the State's case in chief, the State was allowed over objection, to recall the owner of the cameras to testify as to their value. This value was primarily based upon what a dealer in cameras had told the owner their value was. A motion to strike this testimony was denied.
The defendant raises the following issues on appeal:
1. Under the state of the evidence, did the trial court have a duty, Sua sponte, to instruct the jury that Ingalls was an accomplice as a matter of law?
2. Was the prosecutor's cross-examination and jury argument directed to the defendant's pretrial silence reversible error?
3. Did the trial court properly instruct the jury on the issue of intent necessary for the crime of burglary?
4. Was the testimony of the owner of the stolen cameras as to their value admissible?
The defendant's first contention is based upon the proposition that where the evidence is clear and undisputed that a witness's participation in the crime for which the defendant is charged is such that the witness could be prosecuted for the same crime, it is for the court to determine whether that witness is an accomplice as a matter of law. This is undoubtedly a correct statement of the law. Cruz v. State, 40 Ariz. 436, 14 P.2d 247 (1932). It is equally correct that where, although there is evidence to connect the witness with the crime, the facts are disputed or susceptible to different inferences, the question as to whether that witness is an accomplice is for the jury to determine. Cruz v. State, Supra. This case raises the interesting question of whether a witness's denial of criminal participation in the event coupled with his prior judicial plea of guilty to the crime arising out of that same event raises a disputed issue of fact as to the witness's status as an accomplice. The only case the court has been able to locate dealing with this specific problem is Hargrove v. State, 125 Ga. 270, 54 S.E. 164 (1906), which held:
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We believe the holding in Hargrove v. State, Supra, is sound. Pleas of guilty may be entered for a number of reasons some unrelated to the issue of true guilt. See, North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Moreover, a plea of guilty even as between the state and the witness may not be conclusive. See, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
We therefore hold that the trial court properly submitted to the jury the issue of whether Ingalls was an accomplice. Having made this determination we do not decide what effect, if nay, the failure of the defendant to object to the submission of this instruction to the jury may have. The second issue raised by the defendant is that, even absent objection, the defendant may not be cross-examined concerning whether or not he had previously made known the story he now tells from the stand, citing State v. Greer, 17 Ariz.App. 162, 496 P.2d 152 (1972). How we decide this issue requires us to determine which of two conflicting holdings of the Arizona Supreme Court apply. In the case of State v. Shing, 109 Ariz. 361, 509 P.2d 698 (1973), decided May 7, 1973, the court, sitting in division, held on the issue of pretrial silence by the defendant that:
'To hold that a...
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