State v. Brydges
| Decision Date | 24 August 1982 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 653 P.2d 707,134 Ariz. 59 |
| Parties | STATE of Arizona, Appellee, v. William BRYDGES, Appellant. 5094. |
| Court | Arizona Court of Appeals |
Although numerous claims of error are made in this appeal, the main issue is whether the trial court properly classified an out of state conviction as dangerous for purposes of enhancing punishment for the Arizona conviction.
This matter originally went to trial on an indictment for aggravated assault, a class 3 felony, with an allegation of a prior conviction of "Altering Obligations of the United States," 1 and resulted in a jury verdict of guilty on September 18, 1980. The trial court subsequently granted defendant's motion for a new trial. The propriety of this order is not questioned by either party. Following the granting of a new trial, the prosecution filed a second allegation of prior conviction alleging that the defendant had previously been convicted of Aggravated Battery in the state of Illinois in 1965. The matter again proceeded to trial which again resulted in a verdict of guilty. Following the return of a guilty verdict, the jury also found the defendant guilty of having been previously convicted of the crime of Aggravated Battery in the state of Illinois. The allegation of the prior Illinois conviction did not allege that the crime was dangerous, nor were any facts surrounding the Illinois crime presented to the jury. The evidence in this regard merely consisted of the introduction of an authenticated copy of the Illinois conviction which stated that the defendant has pled guilty to the crime of aggravated battery in Lake County, Illinois and had been sentenced to not less than one nor more than three years imprisonment in the Illinois Penitentiary.
During the hearing on pretrial motions, the prosecutor described the Illinois conviction as involving a "stabbing in a bar" and the presentence report shows that the 1965 Illinois conviction involved a "bar room stabbing."
At the time of sentencing, the defendant was sentenced as a recidivist, dangerous offender, to the presumptive term of 11 1/4 years, the trial court treating the Illinois conviction as "dangerous." The defendant did not object to the presentence report, nor object before the trial court to the "recidivist, dangerous offender" classification.
The facts surrounding the Arizona crime are not in serious dispute. The victim and the defendant were playing pool at a local Phoenix tavern. During the course of the evening, a slight altercation occurred between the victim and the defendant with an exchange of insults. Subsequently, while the victim was standing with his back to the bar, the defendant rushed at him with clenched fists. The victim struck the defendant and simultaneously the defendant stabbed the victim in the back with a knife.
A bystander testified that he saw the defendant with a knife in his hand, and saw the defendant stab the victim under the shoulder blade. In the ensuing struggle, the knife fell to the floor and the defendant stood on it. Blood was evident at this point. The defendant explained the presence of the blood as the "blame fool" must have cut himself on the pool rack, at which point the bystander inquired if that was true, "what are you standing on that knife for, then?" Seeing the inherent logic in this observation, the defendant fled the bar.
Other customers in the bar verified the presence of blood on the victim's shirt during the struggle and that no one else was near enough to the antagonists to cause the stabbing.
Shortly after the occurrence at the bar, police officers traced the vehicle the defendant was driving to a trailer park. After identifying themselves, the defendant admitted the police officers, stating he had been waiting for them and asked them if they were going to give him his rights. The Miranda warnings given by the police failed to advise the defendant that anything he might say could be used against him.
[Officer Martin] then asked Mr. Brydges "why all the blood?"
Mr. Brydges stated,
These statements were admitted at defendant's trial.
On appeal, the defendant raises the following issues:
(1) The failure of the jury to find that the Illinois conviction was dangerous precludes the trial court from sentencing him as a "recidivist, dangerous offender."
(2) That the filing of the second allegation of prior conviction for the purpose of enhancing punishment as a dangerous offender following the granting of a mistrial constituted "prosecutorial vindictiveness."
(3) That the trial court erred in admitting his statements because of the failure of the police to provide full Miranda warnings;
(4) That the prosecutor was guilty of trial misconduct; and
(5) That the trial court failed to give him credit for 18 additional days of presentence incarceration.
As to the last issue, the state concedes error in not granting the defendant an additional 18 days credit for presentence incarceration. On remand, the sentence imposed must be modified by granting credit for the 18 additional days that the defendant spent in presentence incarceration.
As to the central issue, whether the trial court erred in classifying the defendant's out of state conviction as dangerous for purposes of enhancement, we have been unable to find any evidence in the record from which the jury could determine that the defendant had been convicted of a "dangerous" offense.
The statute 2 under which the trial court enhanced the defendant's sentence as a "recidivist, dangerous offender," provided that the previous conviction must be for a felony which involved the use or exhibition of a dangerous weapon or instrument, the knowing infliction of serious physical injury, or the conviction of any felony committed prior to October 1, 1978, which would carry a penalty up to life imprisonment.
Although the "dangerous" nature of the Illinois conviction was not alleged and the jury which found the defendant guilty of the prior Illinois conviction did not make a finding of "dangerous" as to that offense the state argues that the trial court can make that finding based upon judicial notice of the Illinois statutes and the extra-judicial statements of the prosecutor and the probation report, plus a "waiver" by the defendant to raise this issue. We disagree.
A.R.S. § 13-604 is unclear as to who makes the determination that a prior offense is dangerous for the purpose of triggering the various enhanced punishments contained in that statute which have their genesis in the "dangerous" characteristic. However, A.R.S. 17, Rules of Criminal Procedure, Rule 19.1(b), provides in pertinent part:
b. Proceeding When Defendant is Charged With Prior Convictions.
In all prosecutions in which a prior conviction is alleged, unless such conviction is an element of the crime charged, the procedure shall be as follows:
* * *
* * *
(2) If the verdict is guilty, the issue of the prior conviction shall then be tried, unless the defendant has admitted the prior conviction. (Emphasis added).
This Rule has been interpreted as requiring a jury determination on the issue of prior conviction, unless the defendant admits the prior conviction. State v. Gilbert, 119 Ariz. 384, 581 P.2d 229 (1978).
In our opinion, the jury is the proper body to determine not only the fact of prior conviction but also its character, i.e., "dangerousness." We reach this conclusion based upon State v. Parker, 128 Ariz. 97, 624 P.2d 294 (1981) which fixed the jury's role in determining the "dangerous" character of substantive crimes listed in A.R.S. § 13-604. In Parker, the Arizona Supreme Court held that A.R.S. § 13-604(K) "requires a specific finding by the trier of fact that the dangerous nature of the felony has been proved." Parker at 99, 624 P.2d at 296. While the Supreme Court utilized subsection K of A.R.S. § 13-604 to reach the conclusion that the dangerous nature of the crime with which the defendant is charged is entitled to jury consideration, that subsection can equally be interpreted to apply to the jury's role in determining prior conviction issues. A.R.S. § 13-604(K) provides in part:
K. The penalties prescribed by this section shall be substituted for the penalties otherwise authorized by law if the previous conviction or the dangerous nature of the felony is charged in the indictment or information and admitted or found by the trier of...
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