State v. Carter, ICA-CR

• Decision Date: 24 February 1965
• Docket Number: No. ICA-CR,ICA-CR
• Citation: 399 P.2d 191,1 Ariz.App. 57
• Parties: The STATE of Arizona, Appellee, v. Charles Joseph CARTER, Appellant. * 5.
• Court: Arizona Court of Appeals

Page 191

399 P.2d 191

1 Ariz.App. 57

The STATE of Arizona, Appellee, v. Charles Joseph CARTER, Appellant. ^*

No. ICA-CR 5.

Court of Appeals of Arizona.

Feb. 24, 1965.

Robert W. Pickrell, Former Atty. Gen., by Stirley Newell, Asst. Atty. Gen., Darrell F. Smith, Atty. Gen., Allen L. Feinstein, Phoenix, of counsel, for appellee.

Sydney Block, Phoenix, for appellant.

DONOFRIO, Judge.

Defendant appeals from a conviction of two counts of Burglary second degree, two counts of Burglary, first degree, and four counts of Grand Theft. The Court imposed sentences totalling a term of not less than 32 years nor more than 40 years in the State Prison. The trial was before the Honorable R. C. Stanford, Jr., Judge, and lasted seven days. The defendant does not attack the sufficiency or weight of the evidence to support the judgment or the sentence imposed by the Court. Therefore we deem it unnecessary to burden the opinion with a long statement as the pertinent facts will appear as the assignments of error are considered.

The evidence indicates that the defendant would wait around a motel and obtain keys left by persons checking out of their rooms and at a later date when again occupied he would use the keys to enter and burglarize the rooms. Sometimes he would do this during the nighttime while the occupants were asleep in the room. He also obtained other keys for entry to premises by devious means and would later commit thefts of properties from these premises. The Grand Jury returned an indictment charging him with the eight counts of which he was convicted.

This Appeal is based on the error of the Court in denying a motion for new trial. The motion was based on the following grounds; that the County Attorney was guilty of misconduct; that the Court erred in decisions of law, and that the Court misdirected the Jury on matters of law.

We first consider assignment of error that the County Attorney was guilty of misconduct. Defendant claims the County Attorney improperly argued to the Jury in his final summation in four respects; in referring to words such as 'hot prowl', 'cold prowl', 'knifing', and 'shakedown room'. There was evidence that the defendant used these terms when confessing to the crimes for which he was charged. In commenting that the defendant has an 'interesting vocabulary'; in referring to the fact that defendant in his statement described himself as one of the 'best second story men in the country'; and in arguing that thankfully one of the women, whose room was burglarized, was a 'heavy sleeper' and 'didn't wake up,', because as you will see by his own statement, 'Mr. Carter owned a gun'.

The contention is that these comments were prejudicial as inferring the commission of other crimes and resulted in placing defendant's character in issue when he hadn't taken the stand or otherwise put it in issue.

We are in accord, that refference in argument to anything not legally admissible against defendant, tending to call Jury's attention to other crimes in manner which might be prejudicial, are improper. Burrows v. State, 38 Ariz. 99, 297 P. 1029; Perez v. Territory, 12 Ariz. 16, 94 P. 1097. However, a prosecutor is allowed considerable latitude in discussion of evidence, possible facts Jury may find and reasonable inferences which may be drawn therefrom. State v. Jordan, 80 Ariz. 193, 294 P.2d 677; State v. Dowthard, 92 Ariz. 44, 373 P.2d 357; State v. Thomas, 78 Ariz. 52, 275 P.2d 408 (1954), affirmed 356 U.S. 390, 78 S.Ct. 885, 2 L.Ed.2d 863; State v. McLain, 74 Ariz. 132, 245 P.2d 278 (1952). In State v. Dowthard, (supra) at page 47 of the Arizona Reports, 373 P.2d at page 359 we said:

'In determining whether remarks made by counsel in criminal cases are so objectionable as to cause a reversal of the case, we have stated the best rule to be:

"* * * Do the remarks call to the attention of the jurors matters which they would not be justified in considering in determining their verdict, and were they, under the circumstances of the particular case, probably influenced by these remarks.' Sullivan v. State, 47 Ariz. 224, 238, 55 P.2d 312, 317 (1936).'

To properly consider this assignment we must review the transcript to determine how this evidence came into existence and what effect it has in the case so as to determine whether its existence and the remarks of counsel are prejudicial error.

Investigating officer (Lieutenant Love) testified that he had an oral conversation with the defendant wherein the defendant stated that his entry into Room 139 of the Velda Rose Motel was a hot prowl. That he said the difference between a hot prowl and a cold prowl was that a hot prowl was when the person was present in the room. The officer further testified that when the defendant was telling of his entry to the Golf House that he described it as a knifing, and that he said a knifing was where a knife was used to trip the lock. He further testified that the defendant told of taking the typewriter (involved in one of the counts) to Room 131 which was a shakedown room, and that a shakedown room is a room where you sort the articles before you remove them from the premises. When the defendant was asked about how he entered a room on the second floor he stated that he was one of the best second story men in the country.

One can see that the words used by the County Attorney were the precise words testified to as having been used by the defendant in describing each of the crimes for which he was on trial. We cannot agree that this is an instance where the prosecutor is guilty of misconduct in making unwarranted statements inferring the commission of other crimes or the placing of character in issue. It would seem that every word in a statement made by a defendant is important especially when it is used in describing the crime for which he is on trial, and that the Prosecutor is well within his right to use the exact words uttered by the defendant and to draw reasonable inferences therefrom to throw light on defendant's criminal intent at the time of the alleged unlawful entry.

The defendant further assigns as error the Prosecutor's statement in argument that the words testified to as uttered by defendant was an 'interesting vocabulary'. Here again we cannot agree that this is the placing of character in evidence. For defendant to assert that the word 'interesting' constitutes an improper reference to a prior criminal record of the defendant is to ignore the plain meaning of the word.

The next assignment to be considered is the assignment that in arguing to the Jury the County Attorney inferred that thankfully one of the women whose room was burglarized was a 'heavy sleeper' and 'didn't wake up', because as you will see by his own statement 'Mr. Carter owned a gun'. The defendant disputes the evidentiary basis for this comment. However Exhibit 18 in evidence, which is one of the statements given by defendant, recites that in committing one of the crimes for which he was being tried, the defendant 'lost a 25 Caliber Browning Pistol'. Accordingly, the comments of the County Attorney are substantiated by this bit of evidence that the defendant had at one time in his possession a gun. It would not appear to be drawing an unreasonable inference from the evidence to intimate that something might have happened had she awakened. This something is not spelled out, and we are not going to assume that the Jury, being of average intelligence, were improperly influenced by these remarks. Especially since at the very beginning of his argument the prosecutor reminded the Jury that 'What I say during argument is not evidence in this case'. And '* * * You have been instructed that remarks or comments of legal counsel in this case which are extraneous to the presentation of the case or relating to the admission of evidence are to be disregarded altogether by you. And any such extraneous remarks or comments or conduct of counsel, if there were any, are not to prejudice you for or against the respective parties * * *'.

The assignment of error that the County Attorney improperly referred to an inventory in his argument and repeatedly asked questions during the trial relating to the inventory which he knew would never be admitted in evidence will be considered next.

The inventory contains some 342 items which were in defendants' car at the time it was searched and the property removed. Among the items were included those that form the basis of the burglary and thefts for which the defendant was on trial. The inventory was only marked for identification and was part of the foundation for the introduction of the items involved in the various counts of the indictment. The many questions asked were for the witness to look at the inventory to refresh his memory as to whether the items being offered were a part of the items taken from the car. The County Attorney made this plain to the Court in the absence of the Jury, when he informed the Court that it was not being offered in evidence because it contained the fruits of other crimes and it was merely used as a refresher for the witness. They guarded well any reference that any of the other items were involved in any crime. No such evidence appears in the record.

The law is well established that in certain situations, for the purpose of enabling him to testify, a witness may be permitted to refresh his memory or stimulate his power of recollection by the use of written matter. A witness who has the means of aiding his memory by a recourse to memoranda or papers may be required to look at such papers in order to enable him to ascertain a fact with precision, to verify a date or to give more exact testimony than he otherwise could as to times, numbers, quantities and the like. 4 Jones on Evidence 5th Ed. Section 964, p. 1815.

Error is not assigned to the use of the inventory but only to the County Attorney's conduct in constantly referring to the exhibit.

Here again we must...