State v. Chaney

• Decision Date: 12 June 1967
• Docket Number: No. 2,CA-CR,2
• Citation: 428 P.2d 1004,5 Ariz.App. 530
• Parties: The STATE of Arizona, Appellee, v. Alfred Louis CHANEY, Appellant. 65.
• Court: Arizona Court of Appeals

Page 1004

428 P.2d 1004

5 Ariz.App. 530

The STATE of Arizona, Appellee, v. Alfred Louis CHANEY, Appellant.

No. 2 CA-CR 65.

Court of Appeals of Arizona.

June 12, 1967.

Darrell F. Smith, Atty. Gen., Carl Waag, Gary K. Nelson, Asst. Attys. Gen., Phoenix, William J. Schafer, III, County Atty., Pima County, Tucson, for appellee.

Robert J. Hirsh, Tucson, for appellant.

MOLLOY, Judge.

The defendant, Chaney, along with a codefendant, Mayes, was convicted of two counts of burglary, second degree. The defendant, Chaney, brings this appeal raising numerous assertions of error.

The charges in this action were brought under A.R.S. § 13--302, subsec. A which defines a 'burglary' as the entry into any building '* * * with intent to commit grand or petty theft, or any felony * * *.' In this case, the charges revolve around entries into two retail stores, in the daytime, the allegation being that when the defendant so entered, it was with the intent to commit theft.

The proof, viewed favorably to support the verdicts rendered below, State v. Narten, 99 Ariz. 116, 407 P.2d 81 (1965), cert. denied 384 U.S. 1008, 86 S.Ct. 1985, 16 L.Ed.2d 1021 (1966), establishes that the defendant, together with his codefendant, entered a retail nursery establishment on October 7, 1965, and bought some insecticide. While the two were at the cash register, paying for the purchase, the defendant dropped a coin on the floor, which coin rolled to a position where the store attendant was in the best position to pick it up. In doing so, the store attendant turned his back to an open cash register. As the defendants were leaving the store, the store attendant noticed there was at least one twenty-dollar bill missing from the cash register and he called the police, who located the defendant and Mayes in their automobile a short distance from the store. They were returned to the store where the store attendant identified them as being the two persons who had been in the store previously to make the insecticide purchase. At the trial, the store owner testified there was a cash shortage of $38 from the cash register on the occasion.

The other count of the information pertains to an entry into a bait and tackle shop on October 26, 1965. On this occasion, the defendant Chaney entered the store by himself and, while paying for a fifteen-cent purchase of lead weights, dropped a penny on the floor which rolled into a position so that it was appropriate for the store attendant to pick it up. As the store attendant turned away from the open cash register, he heard a peculiar sound in the cash register, turned around and saw the codefendant Mayes with his hand in the cash register removing the five-dollar bills. The store owner reached forward and grabbed Mayes by the arm, making him release the bills, whereupon Mayes departed hurriedly from the store. The defendant walked out of the store while the storekeeper was calling the police. The police apprehended the two defendants and a third person at a grocery store not too far distant. When apprehended Mayes was seated in an automobile containing approximately seven small paper bags containing small amounts of merchandise purchased from various stores. In the grocery store at the time of their arrest, were the defendant and the owner of the automobile in which these three individuals were riding. The defendant had just made a small purchase at the cash register and had dropped a penny on the floor which he was contending to the clerk had rolled behind the counter. The store attendant had looked on the floor but could not see a penny and refused to hunt for it.

In addition to these incidents, there was testimony that on that same day the defendant had gone into a greeting card store and bought a fifteen-cent greeting card. While the defendant was paying for his purchase with a dollar-bill, he dropped a penny on the floor as the sale was being rung up. When the store attendant said, 'never mind,' the defendant picked up the penny himself and tendered it to the storekeeper to pay the sales tax on his purchase, Mayes was identified as a person waiting in the car used by the defendant on this occasion, parked in the lot in front of the greeting card store.

The defendant did not take the stand during the trial but his codefendant, Mayes, did take the stand. Mayes testified that he and the defendant were in the nursery on October 6, 1965, to make a small purchase of insecticide, but denied that any coin was dropped on the occasion in question or that any monies were taken from the cash register. Mayes also testified that he was with the defendant when he went to the card shop and bait and tackle shop, but that he did not leave the car on either occasion. Additional facts will be outlined as the various assertions of error are discussed.

The defendant complains of the admissions in evidence of a police report containing a description of the activities of a police detective in investigating the incident at the bait and tackle store. A portion of this report had been read in evidence at the instigation of the defendant's counsel in the cross-examination of the detective who had prepared the report. In his direct testimony, this detective had stated that Mr. Rudd, the proprietor of the bait and tackle shop, had described the height of the two negro males who had entered his shop as being approximately 5 8 or 5 9 as to the taller one, and a lesser height as to the other. The portion of the police report read into evidence on cross-examination contained a statement that Mr. Rudd had described these persons as being approximately 6 tall and 5 8 tall, respectively.

Thereafter, over the objection of the defendants that the balance of the report did not relate to the portion admitted, the entire police peport was read to the jury and the report itself admitted in evidence. Contained in this report was a statement as follows:

'Officer Bostick brought Mr. Rudd (proprietor of the bait and tackle shop) to the 7--11 store (where defendants were arrested) where he identified subject CHANEY as being the suspect who had dropped the penny behind the counter and Also the suspect that had stolen money from his cash register approx., two weeks ago.'

(Emphasis added.)

During the trial, the State attempted to have admitted in evidence Mr. Rudd's testimony pertaining to the incident of 'two weeks ago.' This testimony was generally to the effect that Mr. Rudd had missed some money from his cash register immediately after the defendant Chaney had been in his store. There was no testimony about the dropping of a coin on this occasion and there was no direct evidence, other than the fact that the money was missing, that Chaney had committed a theft on that occasion. The trial court refused to permit the testimony in evidence on the basis that the testimony was '* * * pretty slim proof of an offense without corroboration.'

There was no request made by the defendant for an instruction to the jury to disregard this accusation of another theft and none was given in this regard. In its brief, the State admits that the admission of the remainder of the police report was error, in that it did not in any way qualify or explain the portion of the report which had been admitted in evidence. See 7 Wigmore, Evidence § 2113, p. 524 (3d ed. 1940).

However, the State argues that the admission of this evidence was not prejudicial, when the error is viewed in the light of the entire record. The State relies upon State v. Dutton, 83 Ariz. 193, 318 P.2d 667 (1957). In Dutton, our Supreme Court held that trial court erroneously admitted in evidence testimony that the accused was driving a stolen car on the occasion when he was accused of committing a robbery. However the Supreme Court held that substantial justice had been done in the case and refused to reverse, citing Article 6, § 22, of the Constitution of the State of Arizona, A.R.S. (now Article 6, § 27). The Court said:

'In applying this constitutional provision our prior decisions, particularly in Turley v. State, 48 Ariz. 61, 59 P.2d 312 and State v. Singleton, 66 Ariz. 49, at page 66, 182 P.2d 920, at page 930, have laid down this test: had the error pointed out not been committed is there reasonable probability that the verdict might have been different? In answering this question, the mimbers of this court must necessarily put themselves, as nearly as possible, in the position of the jury in order to determine whether, as reasonable men, the error committed probably affected their verdict.'

83 Ariz. at 200, 318 P.2d at 671.

If this test of prejudicial error were still the prevalent one in this jurisdiction, we would be inclined to affirm the conviction here, despite the errors committed by the trial court, as outlined in this decision. However, we believe there has been a shift in the view of our Supreme Court in this area of what is prejudicial error, particularly when it involves the admission in evidence of other criminal offenses. State v. Hughes, 10i Ariz. 118, 426 P.2d 386 (1967); State v. Gallagher, 97 Ariz. 1, 396 P.2d 241 (1964); ¹ State v. Gortarez, 96 Ariz. 206, 393 P.2d 670 (1964); and State v. Jacobs, 94 Ariz. 209, 382 P.2d 683 (1963), are four decisions subsequent to Dutton which impel us to the view that under the standards established by our Supreme Court reversible error was committed in this action by the admission of the statement in the police report of the alleged prior theft.

We proceed to answer other contentions made on appeal, which are of such nature as may arise on a new trial. Defendant alleges that the trial court erred in refusing to charge the jury as follows:

'Before the jury can consider whether or not the defendant Chaney is guilty of the crime he is charged with, it is mandatory that the jury find as a fact, beyond a reasonable doubt, that some one or more persons committed the burglaries charged and that the some one or more persons included the...