State v. Collins, 1865

• Decision Date: 04 June 1969
• Docket Number: No. 1865,1865
• Citation: 454 P.2d 991,104 Ariz. 449
• Parties: STATE of Arizona, Appellee, v. Lee Roy COLLINS and Robert L. Chipps, Appellants.
• Court: Arizona Court of Appeals

Page 991

454 P.2d 991

104 Ariz. 449

STATE of Arizona, Appellee, v. Lee Roy COLLINS and Robert L. Chipps, Appellants.

No. 1865.

Supreme Court of Arizona, In Division.

June 4, 1969.

Rehearing Denied July 8, 1969.

Gary K. Nelson, Atty. Gen., Darrell F. Smith, Former Atty. Gen., by Carl Waag, Asst. Atty. Gen., Phoenix, for appellee.

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

HAYS, Justice.

The appellants were both charged with robbery and after a trial by a jury were found guilty of that charge. The principal witness against them was an Arthur Haslip who testified that while he was walking to work at the railroad yards near 7th Street and the Southern Pacific Railroad crossing in Phoenix, Arizona, he was robbed by two men. He further testified that he was grabbed by the collar by one of the men and a pocket knife was pointed at him. He was compelled to give them the money he had in his pocket which was the sum of .35 or .40 cents. They looked at his billfold which was empty.

After the robbery the victim immediately went to his foreman and reported the occurrence. A police officer was summoned and Haslip gave him a description of the two men. An hour or so later the police officer saw two men answering that description just north of 2nd Street and Jefferson. He placed them under arrest for vagrancy and brought them back for identification by the victim. The two men identified by the victim that night were the appellants, Collins and Chipps. At the time of trial Haslip again identified the appellants as being the two men who robbed him.

In the opening brief appellants raised basically two questions: 1) Was there sufficient evidence to prove the appellants guilty beyond a reasonable doubt and was the verdict of the jury contrary to the law or the weight of the evidence? 2) Were the constitutional rights of the appellants violated when they were brought to the victim for identification?

At the time of oral argument the appellants were permitted to file a memorandum and raise an additional point: Were the appellants deprived of a fair trial because they were both represented by the same counsel, and does a defendant have the right to decide whether he desires to be represented by his own separate counsel.

With regard to the first point raised we need but quote from State v. Bearden, 99 Ariz. 1, 405 P.2d 885 (1965), where we said:

'It is true that to warrant a conviction based solely upon circumstantial evidence, the evidence must not only be consistent with guilt, but inconsistent with every reasonable hypothesis of innocence. State v. Tigue, 95 Ariz. 45, 47, 386 P.2d 402. However, the jury chose to disbelieve defendant's account of being an innocent bystander and its decision concerning the weight and credibility of defendant's testimony is final. State v. Roberts, above, 85 Ariz. 252, at p. 254, 336 P.2d 151.

We are only concerned with whether there is substantial evidence in support of the verdict. State v. Rivera, 94 Ariz. 45, 50, 381 P.2d 584. Reversible error occurs where there is a complete absence of probative facts to support the conclusion. State v. Mahan, 92 Ariz. 271, 272, 376 P.2d 132; State v. Milton, 85 Ariz. 69, 331 P.2d 846. When we consider whether the verdict is contrary to the evidence we do not decide whether we would reach the same conclusion as the jury. Rather, we decide whether there is competent evidence to support the conclusion found or, alternatively, whether the verdict was found without evidence from passion, prejudice or other improper motive. Quong Yu v. Territory of Arizona, 12 Ariz. 183, 186, 100 P. 462. Evidence is not insubstantial simply because the testimony is conflicting or reasonable persons may draw different conclusions therefrom. Macias v. State, 39 Ariz. 303, 307, 6 P.2d 423. Substantial evidence means more than a scintilla and is such proof as a reasonable mind would employ to support the conclusion reached. Henzel v. Cameron, 228 Or. 452, 365 P.2d 498, 503. It is of a character which would convince an unprejudiced thinking mind of the truth of the fact to which the evidence is directed. Grange v. Finlay, 58 Wash.2d 528, 364 P.2d 234, 235. If reasonable men may fairly differ as to whether certain evidence establishes a fact in issue then such evidence must be considered as substantial. Smith v. Schumacker, 30 Cal.App.2d 251, 85 P.2d 967, 972; Davis v. Hartley, 69 N.M. 91, 364 P.2d 349, 351.' at page 3, 405 P.2d at p. 886.

The evidence as set forth in the statement of facts reveals that there is substantial evidence to support the verdict and it is not contrary to law.

On the second point, regarding the identification of the appellants by the victim following the robbery, we refer to State v. Dessureault, 104 Ariz. 380, 453 P.2d 951, (#1899 filed April 30, 1969), in which we engaged in a thorough discussion of Wade v. United States, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1966); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1966); and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1966). In State v. Dessureault, supra, 104 Ariz. at page 384, 453 P.2d at page...