State v. Greer
| Decision Date | 19 January 1978 |
| Docket Number | CA-CR,Nos. 1,s. 1 |
| Citation | 576 P.2d 1004,118 Ariz. 349 |
| Parties | STATE of Arizona, Appellee and Cross-Appellant, v. William Ray GREER, Appellant and Cross-Appellee. 2460 and 1 2489. |
| Court | Arizona Court of Appeals |
Appellant was convicted of having committed robbery while armed with a gun and with a prior conviction in trials by jury on December 16, 1976 (robbery) and December 21, 1976 (prior felony). He appeals from the judgments and sentences of the trial court entered on December 21, 1976. The facts pertinent to a determination of the issues on appeal are as follows. Appellant was originally convicted on the same charge of robbery with a gun in 1975. This court reversed that conviction on July 1, 1976. 1 The mandate and order from this court reversing the conviction were received by the Clerk of the Maricopa County Superior Court on August 19, 1976. The parties agree that pursuant to Rule 8.2(d), Arizona Rules of Criminal Procedure, the last day for trial was October 18, 1976, unless the time limits were extended pursuant to Rule 8.2(e) and Rule 8.5, Arizona Rules of Criminal Procedure. On October 18, 1976, the case was called for trial, but the state moved for a continuance, and the motion was granted. On December 14, 1976, the trial began, but ended in a mistrial. The next day, December 15, 1976, a new jury was impanelled and the case again proceeded to trial. On December 16, 1976, the jury convicted the appellant of armed robbery with a gun. The same jury heard evidence that day on the trial of the allegation of a prior conviction, but that trial ended in a mistrial. Appellant was finally found guilty of the prior conviction by a new jury on December 21, 1976. On the same day, he waived the pre-sentence report and asked that he be sentenced immediately. The court granted his request and sentenced appellant to serve a term of not less than 12 nor more than 15 years at the Arizona State Prison. The appellant urges three issues on appeal, and the state urges two issues by way of a cross-appeal. We will discuss first the issues raised by appellant, and then discuss the matters raised by the state.
Appellant first urges that he was denied his right to a speedy trial. On October 18, 1976, he announced that he was ready for trial. At that time, the state made a motion to use the preliminary transcript of an unavailable witness. Appellant objected. 2 That motion was granted, and immediately thereafter the state moved to continue the trial, claiming that information as to the whereabouts of the missing witness had been obtained the morning of the trial and he would possibly become available. The motion to continue was granted over the objection of appellant. The missing witness had not materialized by the time of trial in December, and the transcript was utilized. The appellant urges that he was deprived of his right to a speedy trial in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States, Art. 2, Sec. 24 of the Arizona Constitution, and Rule 8.2(d) of the Arizona Rules of Criminal Procedure.
Rule 8.2(d) requires that a new trial ordered upon the reversal of a judgment on appeal shall commence within 60 days after the entry of the order of the court. Rule 8.2(e) states that the time limits may be extended pursuant to Rule 8.5. When continuances are granted in accordance with Rule 8.5, the periods of the continuances are excluded periods pursuant to Rule 8.4, Arizona Rules of Criminal Procedure.
Appellant's trial was delayed for a period of 56 days in excess of the 60 days otherwise required by Rule 8.2(d). The first delay was for a period of 28 days from October 18 to November 15 on the state's motion for a continuance in order to extradite the missing witness. While the trial court had granted the state's motion to use the prior transcript over objection, it expressed concern that since the prior conviction had been reversed on this ground and the state now had knowledge of the missing witness's whereabouts, the interests of justice required a continuance. We agree. The trial court properly excluded the continuance time under Rule 8.5. The second continuance was granted on defendant's motion in order to procure his own out-of-state witnesses. That motion excluded the period from November 15, 1976 to December 13, 1976 pursuant to Rule 8.4(a), Arizona Rules of Criminal Procedure, which specifies that delays occasioned on behalf of a defendant shall be excluded from the computation of speedy trial time limits.
The two 28-day excludable time periods totalled a period of 56 days, the amount of excess over the 60 day requirement. Accordingly, since there was no further delay, and since the delays that were granted were excludable within the terms of Rule 8, appellant's speedy trial rights were not violated.
Appellant next urges that the trial court erred in failing to grant his motion for a mistrial based upon the testimony of a Mr. Mays. Mr. Mays was a cellmate of Mr. Greer, and testified at the trial relating to some discussions he had had with Mr. Greer about the charges. During the course of his testimony, the following exchange occurred:
Immediately after the remark was made, appellant's counsel moved for a mistrial. In denying the motion, the court admonished the jury as follows:
At the end of the trial, the court instructed the jury not to consider stricken testimony.
Appellant urges that the testimony of Mays inserted prejudicial and inadmissible evidence of other bad acts not amounting to a felony.
After reading the transcript, we believe that the statement was not so prejudicial as to require a mistrial or reversal. Moreover, the trial court's admonition to the jury cured any possible prejudice that might have occurred. The evidence against appellant was overwhelming as to his guilt. There were two eye witness identifications; the appellant's discussions with his cellmate relating to the robbery were admitted into evidence; and most importantly, his attempts to induce his cellmate to fabricate an alibi for him were introduced into evidence. Accordingly, the error, if any, was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Ramirez, 115 Ariz. 70, 563 P.2d 325 (Ct.App., 1977).
Appellant last contends that his conviction of a prior felony conviction was not supported by the evidence. During that portion of the trial, the state introduced a photocopy of the judgment of guilt and sentence from the Superior Court of Maricopa County. On the back of the same page is a statement from the Department of Corrections at the Arizona State Prison, indicating that appellant had been received at the prison on the prior conviction from the Sheriff of Maricopa County. That document was originally certified in Maricopa County, and is, as previously stated, a photocopy of a certified document. Attached to the document called judgment of guilt and sentence, is another document from Pinal County, certifying that the first document is a copy from the original files and records of the Arizona State Prison.
In addition to introduction of the above-described documents, a fingerprint expert took the appellant's fingerprints at trial and compared them to the prints in the copied records of appellant and thus identified the appellant as the person who was convicted.
Rule 44(b), Arizona Rules of Civil Procedure (applicable to this case pursuant to Rule 19.3(a), Arizona Rules of Criminal Procedure, states that certified copies authorized to be filed with state and county offices may be received into evidence as originals. In State v. McGuire, 113 Ariz. 372, 555 P.2d 330 (1976), our Supreme Court held that copies of certified copies cannot be admitted into evidence, and that their use amounts to erroneous use of hearsay evidence. This case is different from McGuire, supra, in that this court is presented with a certified copy of a certified copy, rather than a mere photocopy of a certified copy. We hold, therefore, that the introduction of such documents met the requirements of State v. McGuire, supra, and Rule 44(b), Arizona Rules of Civil Procedure.
The state contends by cross appeal that it was denied the right to representation of counsel and to present evidence on behalf of the state for purposes of sentencing. Immediately after the verdict of conviction of a prior felony was read, the defendant requested immediate sentencing. The county attorney then representing the state, objected on the grounds that while he was representing the...
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State v. Mulalley
...normally require. The trial court was correct in striking the comment and instructing the jury to disregard it. State v. Greer, 118 Ariz. 349, 576 P.2d 1004 (App.1978). We believe, however, that even if we were to hold that the error was not cured by the trial court's striking of the eviden......
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State v. Thompson
...prior conviction. The document was properly admitted. State v. Moreno, 128 Ariz. 33, 623 P.2d 822 (App.1980); State v. Greer, 118 Ariz. 349, 576 P.2d 1004 (App.1978). Our review of the record for fundamental error has revealed none. Therefore, the judgment of conviction and the sentence imp......
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State v. Moreno, CA-CR
... ... The remark was not so prejudicial as to deny appellant a fair trial ... The certified copy of the "scar sheet" from the records of the Arizona Department of Corrections, used for identification in proving appellant's prior convictions, was properly admitted. See State v. Greer, 118 Ariz. 349, 576 P.2d 1004 (App.1978). Contrary to appellant's assertion, rule 902(4), 17A A.R.S. Rules of Evidence, does not distinguish between "public records" and "official records." Adequacy of the tattoos listed in the exhibit to identify appellant as the person previously convicted was ... ...