State v. Clovis, 2
| Decision Date | 30 July 1980 |
| Docket Number | No. 2,CA-CR,2 |
| Citation | 618 P.2d 245,127 Ariz. 75 |
| Parties | The STATE of Arizona, Appellee/Cross Appellant, v. Clyde Louis CLOVIS, Appellant/Cross Appellee. 1936. |
| Court | Arizona Court of Appeals |
Appellant, convicted by a jury of three counts of robbery, was sentenced to concurrent prison terms of two years on each count. A co-defendant, Clifton Bardwell, was tried in absentia with appellant and was convicted of three counts of armed robbery. Appellant contends the trial court erred in several instances. The state has filed a cross-appeal.
On July 9, 1979, appellant and Bardwell went to a 7-11 convenience market in Tucson, Arizona in appellant's van. While appellant waited in the van, Bardwell, armed with appellant's rifle, went inside, demanded money from two customers and had the store clerk give him the cash in the register. Bardwell then ran out to the van which was moving slowly with the sliding door open. He jumped in and they drove off. Approximately 30 minutes later the van was stopped by a police officer who heard a description of it over his police radio. Appellant and Bardwell were arrested.
Appellant subsequently made a taped statement which was admitted into evidence. He gave the following version of the incident:
" * * *
Q. Okay MR. CLOVIS at approximately 11:30 in the evening, on July 9, did you and CLIFTON BARDWELL rob a 7-11 STORE at 4680 E. Broadway?
A. Uhm, oh the wording on that's tricky but it's pretty much correct.
Q. Ah in what way did, I don't mean to be tricky, but in what way do you ...
A. Well the way it sounds tricky is like, we both walked in, held guns on everybody and walked back out again.
Q. No, no I didn't mean that but ah well in your own words can you tell me what happened?
A. Yes, well we were traveling we were on our way back east and his girl friend has a kid and we ran short on money and and we were thinking of latching on with a carnival heading back east and working our way back there but we kind of needed money right away, you know, until we could find one to latch onto and it didn't seem like many things, you know, left that we could do. So we went out and got a license plate, changed the license plate on the Van and drove around and found a place and you know, we stopped and he ran in and hit the place, says, told me to turn the Van around, you know while he was in there doing it. And I turned the Van around and when he came back out he jumped in and we drove off and a short while later two officers, or one officer I think it was pulled us over. He waited there until he got some help.
Q. What was CLIFTON or he calls himself BUCK is that correct?
A.
Q. You have to say yes.
A. Yes sir.
Q. Uh-huh what was BUCK armed armed with when he went into the store?
A. He was armed with a Winchester, Model 94, 30-30 lever action.
Q. Who's rifle is that?
A. It was given to me by my parents a couple of years ago.
* * * "
Bardwell also made a statement in which he described appellant's participation:
"Q. Okay, and, when you entered the store, ah, you stated you announced it was a robbery?
A. Yes.
Q. And, then in fact, ah, ah, you took, ah, two dollars, ah, from one subject, a wallet containing, ah, ah, a ten dollar traveller check, and, ah, some credit cards from another subject and then, ah, twentyeight (sic) dollars from the, ah, store clerk, is that correct?
A. Yes.
Q. Ah, who was your, ah, partner?
A. My partner is CLYDE CLOVIS.
Q. An, was he the, ah, driver of the truck?
A. Yes, he was, the van.
Q. Did you plan this robbery, ah, before you, ah, went into the place?
A. Um, I don't understand what you mean, before I went in there.
Q. I mean, did you talk, did you ...
A. I walked, I mean, I walked in there with a rifle, so, naturally, it was before I walked in there.
Q. Mmm Hmm. But, I mean, did you talk with, ah, ah, MR. CLOVIS, ahm, in regards to pulling the robbery, to get some money?
A. Yes.
..."
At trial appellant testified on his own behalf. He stated that he and Bardwell planned to steal food from the store and that he had no idea when they arrived there that Bardwell was going to rob anyone. He denied seeing Bardwell take the rifle with him when he entered the store. By his testimony, appellant admitted a conspiracy to commit third-degree burglary in violation of A.R.S. Sec. 13-1003 and Sec. 13-1506 which would have subjected him to a two-year presumptive sentence under A.R.S. Sec. 13-701(B)(4). Appellant attempted to reconcile his testimony in court with that of his prior confession by pointing out that the word "rob" was used by the interrogator and not him. Furthermore, although he stated in his confession that Bardwell went into the store with a weapon, he testified at trial that he first knew that Bardwell had a weapon when he saw him running out of the store.
The trial court submitted forms of verdict, as to appellant, on armed robbery and robbery. 1 It also submitted to the jury the question of the dangerous nature of the offense. The jury found appellant guilty of three counts of robbery and found that the offense was dangerous in nature. The trial court subsequently set aside the finding of dangerousness because it felt it was inconsistent with the jury finding appellant guilty of robbery instead of armed robbery.
Appellant contends that the trial court erred in denying his motion to sever. We do not agree. In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) the court reversed the robbery conviction of a defendant who had been implicated in a crime by his co-defendant's extra judicial confession. Because the co-defendant had not taken the stand at the joint trial and thus could not be cross-examined, the court held that admission of the co-defendant's confession had deprived the defendant of his rights under the confrontation clause of the Sixth Amendment. However, the Bruton rule does not apply when there are interlocking confessions as there are here. See Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979).
Appellant objected to the admission of Bardwell's confession on the ground it was hearsay as to him. The trial court overruled the objection. Appellant requested the trial court to instruct the jury that Bardwell's confession was not to be considered in determining appellant's guilt. The court refused to do so under the mistaken belief that if a joint trial was proper, Bardwell's confession was admissible against appellant. This was clearly wrong. As far as appellant was concerned, Bardwell's confession was hearsay and inadmissible. See Rules 801 and 802, Arizona Rules of Evidence. Under Parker v. Randolph, supra, a joint trial can be held where there are interlocking confessions and the trial court instructs the jury that each confession can be used only against the defendant who gave it and it is not to be considered as evidence of a co-defendant's guilt. In Bruton v. United States, supra, the court felt that a limiting instruction would be of no avail under the factual situation that was present there. However, in Parker v. Randolph, supra, the rationale was that the jury would be more likely to follow the limiting instruction and not be influenced by a co-defendant's confession if they both have confessed. Thus, under Parker v. Randolph, supra, there must be both interlocking confessions and a limiting instruction.
The state argues that the error was harmless under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) because there was overwhelming evidence of appellant's guilt. It bases this contention on his confession. We do not agree. It cannot be said that the confession was "air tight". The interrogator did not attempt to refine his questions or exact from appellant, admission of the elements of the crime of robbery. To the layman, robbery, burglary and theft are sometimes considered synonymous. Contrary to the state's assertion, Bardwell's confession exceeds that of appellant since Bardwell stated that when he entered the store he announced it was a robbery and that appellant was aware of what Bardwell was doing. In view of appellant's defense, we cannot say that the error was harmless. It will therefore be necessary to reverse and remand for a new trial, but we address other issues which may occur.
Officer Yant of the Tucson Police Department, while making a routine traffic stop, heard a description over the radio of the van involved in the armed robbery of the 7-11 store. A short time later he saw a van meeting the description traveling in a direction away from the scene of the robbery. The vehicle had its dome light on and the driver turned it off when he observed Officer Yant. Yant stopped the vehicle and radioed its license number so that a license plate check could be made. He approached the driver's door and observed that the van had no windows. Unaware that anyone else was within the van, he returned with the driver to the police vehicle. He asked the driver, appellant, for his driver's license upon which appellant produced a temporary California driver's license that showed his last name to the Culver. Officer Yant advised appellant of his rights under "Miranda". At this time he heard over the radio that either the vehicle or the license plates might be stolen. He asked the driver if there was anyone else in the van. When appellant responsed in the affirmative Yant handcuffed him, had him lie face down on the ground and got out his shotgun, waiting for the other units which were coming to his aid. When the other units arrived a public address system was set up and Bardwell was asked to get out of the van. He did...
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