State v. Chance

• Decision Date: 12 August 1966
• Docket Number: CA-CR
• Citation: 4 Ariz.App. 38,417 P.2d 551
• Parties: STATE of Arizona, Appellee, v. Richard Keith CHANCE, Appellant. 181.
• Court: Arizona Court of Appeals

Page 551

417 P.2d 551

4 Ariz.App. 38

STATE of Arizona, Appellee, v. Richard Keith CHANCE, Appellant.

1 CA-CR 81.

Court of Appeals of Arizona.

Aug. 12, 1966.

Darrell F. Smith, Atty. Gen., by Gary K. Nelson, Asst. Atty. Gen., for appellee.

Vernon B. Croaff, Public Defender, by Grant Laney, Deputy Public Defender, for appellant.

CAMERON, Judge.

Richard Keith Chance, hereinafter referred to as defendant, was convicted and adjudged guilty of aggravated assault, a felony, in violation of A.R.S. § 13--245, subsec. A, par. 5, with a prior conviction. (A.R.S. § 13--1649) Notice of appeal was timely filed and pursuant to defense counsel's request, this Court has undertaken an examination of the record for fundamental error. A.R.S. § 13--1715.

From the facts material to this appeal, it appears that an information for aggravated assault was filed against defendant on 17 August, 1965, with an addendum to the information alleging a prior felony conviction. Arraignment was held on 7 September, 1965, at which time defendant entered a plea of not guilty to the charged offense. The minutes are silent as to whether the defendant admitted or denied the truth of the allegation of prior conviction. See State v. Miles, 3 Ariz.App. 377, 414 P.2d 765 (1966). Trial was held commencing 26 November, 1965, before a jury which returned a verdict of guilty to the offense charged. The minutes reflect that after the verdict the defendant admitted the prior conviction.

On 13 December, 1965, defendant's motion for new trial was denied, he was adjudged guilty of aggravated assault with a prior felony conviction and was sentenced to a term of not less than five nor more than eight years in the Arizona State Prison. Defendant was furnished the assistance of counsel from the time of the preliminary hearing through this appeal.

We have read the transcript of record and believe that the evidence is more than sufficient from which a jury might find the defendant guilty of the crime as charged. The transcript reveals that on 24 July, 1965, the defendant struck one Manuel Higuerra upon the left side of the head with a drinking glass. The blow inflicted a severe cut upon the victim's head. There was testimony that defendant wielded the glass without provocation and nothing would indicate the act was done in self-defense.

During the trial in chief an exculpatory statement which defendant purportedly made to two officers of the Phoenix Police Department while at the Maricopa County Hospital emergency ward was admitted in evidence. The defendant was warned of his right to remain silent, of his right to counsel, and that anything he said could be used against him prior to making the statement. Prior to admitting the statement in evidence, the trial judge held a hearing out of the jury's presence to determine the voluntariness of the statement as required by State v. Owen, 96 Ariz. 274, 394 P.2d 206 (1964). We have examined this statement in view of the recent United States Supreme Court decisions in State v. Miranda, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). While the requirement concerning exculpatory statements and confessions as set forth in State v. Miranda, supra, was not followed by the court, in view of the Johnson v. New Jersey, supra, decision limiting the application of State v. Miranda, supra, to those cases tried after 13 June, 1966, the trial judge did not err in admitting the statement in evidence.

The fact that defendant's prior felony convictions were referred to by the Deputy County Attorney on cross-examination did not constitute error. Defendant had taken the stand in his own behalf and the fact of his prior felony convictions was first introduced by defense counsel. On cross-examination, the Deputy County...