State v. Cannon

• Decision Date: 16 December 1985
• Docket Number: No. 6093,6093
• Parties: STATE of Arizona, Appellee, v. Lionell Edward CANNON, Appellant.
• Court: Arizona Supreme Court

Page 273

713 P.2d 273

148 Ariz. 72

STATE of Arizona, Appellee, v. Lionell Edward CANNON, Appellant.

No. 6093.

Supreme Court of Arizona, In Banc.

Dec. 16, 1985.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Linda A. Akers, Asst. Attys. Gen., Phoenix, for appellee.

Frederick J. Dardis, Pima County Public Defender by Regula Case, Deputy Pima County Public Defender, Tucson, for appellant.

HOLOHAN, Chief Justice.

Appellant, Lionell E. Cannon, was convicted of armed robbery, dangerous nature. The jury also found that he had been on probation at the time of the robbery. Pursuant to A.R.S. § 13-604.01, the trial court sentenced appellant to life imprisonment without possibility of release for 25 years. We have jurisdiction to hear this appeal pursuant to Arizona Constitution art. 6, § 5(3) and A.R.S. §§ 13-4031 and -4033.

Appellant raises the following issues on appeal: (1) the admissibility of appellant's pretrial statements; (2) the propriety of statements made by the prosecution in closing argument; (3) the sufficiency of the instructions given by the trial judge to the jury; (4) the adequacy of the forms of verdict presented to the jury; and (5) the legality of the sentence imposed. We affirm the conviction and remand to the trial court for resentencing.

On September 14, 1983, Maria Ochoa, a clerk at a Circle K store in Tucson, was robbed. After Miss Ochoa identified appellant in a photo lineup, appellant and his companion, Richard Moore, became suspects in the Circle K robbery. Appellant and Moore were also suspects in several other robberies in the Tucson area. The two were placed under surveillance by the Tucson police department.

On September 29, 1983, the surveillance team lost contact with appellant and Moore for a short period of time. During that period, the McDonald's restaurant at Grant and Ft. Lowell Roads in Tucson was robbed. Based on the description of witnesses to the McDonald's robbery, appellant and Moore became suspects in that robbery. Approximately 15 minutes after the McDonald's robbery, the car which appellant was driving with Moore as a passenger was stopped, and both appellant and Moore were arrested. While in custody, appellant made statements implicating himself in the McDonald robbery as well as in 11 other robberies, including the September 14 robbery of Maria Ochoa at the Circle K store. Appellant was charged with the September 14 Circle K robbery and the September 29 McDonald robbery. The case before us concerns the Circle K robbery; the McDonald's robbery charges were dismissed without prejudice on motion of the prosecution.

I. ADMISSIBILITY OF APPELLANT'S PRETRIAL STATEMENT

a. Voluntariness

Appellant maintains that the statement he gave to police officers was involuntary and therefore inadmissible. He alleges that the statement was coerced by threats and promises, that he was denied his right to counsel, and that questioning continued after he indicated that he did not wish to answer any more questions. After an extensive pretrial voluntariness hearing, the trial court ruled that the statement was voluntary.

Appellant testified at the voluntariness hearing that his statement was induced by promises made by the investigating officers to the effect that he would not be prosecuted for the other robberies admitted by him. Appellant also stated that he was threatened by the officers; that the officers resorted to unfair tactics in telling him that Moore was blaming him for the robberies; that the officers used his religious beliefs to induce his statement; and that he was denied his request for counsel.

The testimony of the officers contradicted that of the appellant. Their testimony was to the effect that the appellant agreed to make a statement, and no threats or force of any kind was used to secure the statement.

When assessing the voluntariness of a statement, the trial court and this court must look to the totality of the circumstances. State v. Dalglish, 131 Ariz. 133, 639 P.2d 323 (1982). We note that appellant was read his Miranda rights at the scene of the arrest and again at the police station before questioning. Appellant stated that he understood his rights and agreed to talk to the police officers. Cf. State v. Ring, 131 Ariz. 374, 376-77, 641 P.2d 862, 864-65 (1982). This was not appellant's first contact with police officers. Although he testified that he had never been interrogated in the manner at issue here, appellant's arrest record indicates that he is no stranger to Miranda warnings. The interrogations were recorded (appellant claims the officers turned off the recorder when they threatened him). Even more persuasive is appellant's response to the standard question asked of him by the interrogating officers at the end of the interrogation: "Is this a true and factual statement given by your own free will without promises of reward and without any coercion." Appellant responded:

"Yes, I'm just bringing it out because, you know, I just want to get it off my chest, I didn't even really have to say anything about anything ... but I just want everybody you know ... you know just to let it out ... I just hope, you know, I can be forgiven somehow, you know by, the people you know and you know ... by God."

Although appellant later testified that "I just felt I should say what they wanted to hear so that I could get rid of that and be booked and be brought to jail ...," we find no clear and manifest error in the trial court's weighing of the credibility of witnesses and deciding to believe the officers.

b. Use of Statement to Rebut Assertion of Coercion and Untruthfulness

Early in the trial, the prosecutor requested authorization to introduce into evidence defendant's statement admitting to the eleven other uncharged robberies. The State sought admission pursuant to Rule 404(b) of the Arizona Rules of Evidence. Rule 404(b) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Rule 404(b), Ariz.R.Evid., 17A A.R.S. Specifically, the state argued that evidence of the other acts would be admissible to prove identity and to rebut appellant's assertion that the confession was coerced and is untruthful, and that it was necessary that all of the confession tape be played in order for the jury to make sense of the admittedly admissible portions ¹ and to give the jury the "complete story" of the robbery. The trial court ruled that:

The State's motion to show about nine prior armed robberies, is granted in part and denied in part. The State will be permitted to show in its case-in-chief the three alleged robberies of the 14th.

The motion in limine is granted as to other robberies or statements made by the defendant.

But the Court has advised defense counsel that in the event the defendant testifies and alleges that the statement was coerced and therefore involunntary [sic], and that he was forced by the police somehow into making statements that were in fact not true, the Court would allow the statement into evidence in rebuttal, as to whether the statement was in fact voluntary with the exception of the burglary statements being deleted from the tape.

We agree that the entirety of the confession would not be admissible under the provisions of Rule 404(b). ² The ruling of the trial judge was that the whole confession would be admissible to rebut appellant's testimony that the confession was coerced and untruthful. If the evidence were to be admitted solely to rebut the factual assertion by the appellant, and not to show that the alleged crimes confessed to actually occurred, there would be no Rule 404(b) problem. Rule 404 only applies when evidence of a prior bad act or crime is introduced in the state's case-in-chief for substantive purposes and to show that the alleged crime or bad act actually occurred. In State v. Jeffers, 135 Ariz. 404, 419, 661 P.2d 1105, 1120 (1983), cert. denied 464 U.S. 865, 104 S.Ct. 199, 78 L.Ed.2d 174, we approved of the admission of evidence of a prior attempt by the defendant to kill the victim to rebut the defendant's claim at trial that he would be unable to harm a loved one. See also United States v. Vitale, 728 F.2d 1090, 1093 (8th Cir.), cert. denied, 469 U.S. 825, 105 S.Ct. 103, 83 L.Ed.2d 48 (1984); United States v. Regner, 677 F.2d 754, 756 (9th Cir.1982).

The next question, then, is whether the statement is relevant, and if relevant, whether "its probative value is substantially outweighed by the danger of unfair prejudice...." Rule 403, Ariz.R.Evid., 17A A.R.S. Appellant argues that the trial judge erred by not making the express finding required by State v. Sullivan, 130 Ariz. 213, 635 P.2d 501 (1981). Sullivan states that before evidence of prior crimes can be admitted for impeachment purposes pursuant to Rule 609(a), Ariz.R.Evid., 17A A.R.S., the court "should make an on-the-record finding based on specific facts and circumstances that the probative value of admitting the evidence outweighs its prejudicial effect." Id. at 217, 635 P.2d at 505. Although we have never before determined whether the requirement of an on-the-record finding also applies to the Rule 403 balancing, we note that an explicit record of the trial proceedings vastly simplifies appellate review. In this case, however, no such finding was required because the Rule 403 issue was never raised at trial. Although appellant argued that the evidence would not be admissible under Rule 404(b), he did not object to admission of the evidence on the basis of unfair prejudice. Thus, the trial judge had no need to rule explicitly on the Rule 403 issue. See United States v. Potter, 616 F.2d 384, 388 (9th Cir.), cert. denied, 449 U.S. 832, 101 S.Ct. 101, 66 L.Ed.2d 37 (1980). ...