State v. Cruz

Decision Date19 September 1980
Docket NumberNo. 4931,4931
Citation127 Ariz. 33,617 P.2d 1149
PartiesSTATE of Arizona, Appellee, v. Armando James CRUZ, Appellant.
CourtArizona Supreme Court

Robert K. Corbin, Atty. Gen. by William J. Schafer, III and Diane M. Ramsey, Asst. Atty. Gen., Phoenix, for appellee.

Joseph W. Howard, Casa Grande, for appellant.

HAYS, Justice.

Armando Cruz appeals a jury conviction of dangerous assault by a prisoner (hereinafter assault charge) and possession by a prisoner of a deadly weapon (hereinafter possession charge). Appellant was sentenced to life imprisonment without possibility of parole for 25 years for the assault charge, said sentence to run consecutively to any sentence presently being served. For the possession charge, a two-year term was imposed, to run concurrently to the assault charge and consecutively to any present sentence. We have jurisdiction pursuant to A.R.S. § 13-4031. Several contentions were asserted by appellant, but we must reverse on one issue.

The determinative issue on appeal is whether the trial court properly refused appellant's requested jury instruction on the limited use of appellant's prior conviction.

An examination of the record reveals a diametrically opposite presentation of the facts through the state and defense witnesses' testimonies. On January 15, 1979, at approximately 1:00 A.M., the inmates in the I.E.R. cellblock of Arizona State Prison rioted by burning paper and clothes and flooded their cells in objection to the administration's decision to remove any unauthorized property from their cells. An officer sprayed chemical mace inside appellant's cell prior to entry to expel the appellant. Appellant was ordered to face the cell wall and assume the police search position. As Officer Zazueta attempted to search and handcuff appellant, the appellant apparently reached into his mouth for a metal knife or shank and continued a swift motion behind him, striking Officer Zazueta's coat or key chain but failing to penetrate. A struggle ensued and a second officer hit the metal shank out of appellant's hand with a billy club. After appellant was successfully removed from his cell, Officer Zazueta returned, located and seized the shank from the cell floor.

Defense counsel called the neighboring inmates who testified that they had seen the shank on a pile of refuse in the hall and that it had been picked up by Officer Zazueta prior to his entry into appellant's cell. Appellant testified in his own behalf and denied his having possessed any shank and denied any attempt to stab the officers. On cross-examination, it was elicited from appellant that his present residence was the Arizona State Prison and that he was previously convicted of second degree murder. The permissible use of this evidence is the critical issue on review.

Appellant was convicted for the assault under A.R.S. § 13-1206. The state contends that a prior bad act, such as a conviction, satisfies the element of "a person, while in the custody of the department of corrections, ..." in this offense. The state argues then that the appellant's prior conviction was admitted as substantive evidence. We disagree.

Prior to trial, the court determined that if appellant took the stand he would be subject to impeachment by a prior conviction and that the jury was to decide from the state's evidence introduced at trial whether or not the defendant was in lawful custody. A showing of a certificate of lawful commitment to the Arizona State Prison is not required, contra to appellant's contention. Nor is disclosure of the particular crime which the appellant was currently serving necessary to establish "in custody." The testimony of the officers that the appellant was an inmate, not an employee, of the prison and the appellant's own testimony that he resided in cell 16 was sufficient evidence of "in custody." Therefore, the only proper use of the conviction was to impeach the appellant.

Appellant urges there was error in the trial court's refusal of appellant's requested instruction on the prior conviction. 1 The standard RAJI (No. 5A) instruction was given instead. 2 Directly on point is the recent decision, State v. Canedo, 125 Ariz. 197, 608 P.2d 774 (1980). This court held that if a prior conviction is allowed to impeach a defendant, then the judge must clearly instruct the jury on the limited use to be made of the prior conviction. The RAJI (5A) instruction is insufficient in the case where the witness is the defendant. The failure to tell the jury that the prior conviction is to be used only to evaluate the defendant's credibility and not to be considered as evidence of his guilt of the offense charged required reversal of Canedo's conviction. We emphasized that the danger in the jury's concluding that the defendant is a bad man and convicting on lesser evidence than would ordinarily be necessary to support a conviction, can be decreased by properly instructing the jury on the limited use of the prior conviction. In the instant case, where the testimony is totally conflicting, the failure to admonish the jury not to consider the appellant's second degree murder conviction as evidence of appellant's disposition to commit the assault and possession charges, creates an increased danger. This court has imposed such a duty to instruct on the trial court since 1959. State v. Finley, 85 Ariz. 327, 338 P.2d 790 (1959).

Although the appellant's conviction must be reversed, we address the constitutionality and double jeopardy issues because of their likelihood of reoccurring at trial.

A.R.S. § 13-1206 is challenged by appellant as unconstitutional because the penalty imposed violates cruel and unusual punishment. This argument has been rejected in several recent decisions of this court. State v. Mulalley, 127 Ariz. 92, 618 P.2d 586 (1980), and State v. Marquez, 127 Ariz. 98, 618 P.2d 592 (1980).

Further, the penalty is not disproportionate considering appellant's prior conviction for second degree murder and the seriousness of his conduct in allegedly attempting to stab Officer Zazueta. The contention that A.R.S. § 13-1206 punishes appellant due to his status as a prisoner was unsuccessfully raised in State v. Fears, 126 Ariz. 597, 617 P.2d 763 (1980). Appellant's separation of powers argument that A.R.S. § 13-1206 infringes on the executive and judicial powers was rejected in the Marquez and Fears decisions, supra.

Appellant also...

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13 cases
  • State v. Cheramie
    • United States
    • Arizona Court of Appeals
    • November 30, 2007
    ...lesser included when the greater offense cannot be committed without necessarily committing the lesser offense.'" State v. Cruz, 127 Ariz. 33, 36, 617 P.2d 1149, 1152 (1980), quoting State v. Dugan, 125 Ariz. 194, 195, 608 P.2d 771, 772 (1980). In other words, to be a lesser-included offens......
  • State v. McNair, 6049
    • United States
    • Arizona Supreme Court
    • September 5, 1984
    ...Life sentences for assaults by a prisoner consistently have been upheld in Arizona. E.g., Garcia, supra; State v. (Armando James) Cruz, 127 Ariz. 33, 617 P.2d 1149 (1980); State v. Barnett, 127 Ariz. 16, 617 P.2d 1132 (1980); A.R.S. § 13-1206. 1 For armed robbery with two prior burglary con......
  • State v. Noriega
    • United States
    • Arizona Supreme Court
    • October 29, 1984
    ...2 Life sentences under this statute have consistently survived eighth-amendment scrutiny. See State v. Mulalley, supra; State v. Cruz, 127 Ariz. 33, 617 P.2d 1149 (1980); State v. Fears, 126 Ariz. 597, 617 P.2d 763 (1980); State v. Barnett, 127 Ariz. 16, 617 P.2d 1132 Appellant's sentence i......
  • State v. Cooney
    • United States
    • Arizona Court of Appeals
    • November 8, 2013
    ...lesser included when the greater offense cannot be committed without necessarily committing the lesser offense.’ ” State v. Cruz, 127 Ariz. 33, 36, 617 P.2d 1149, 1152 (1980), quoting State v. Dugan, 125 Ariz. 194, 195, 608 P.2d 771, 772 (1980) (emphasis added); accord State v. Wall, 212 Ar......
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