State v. Hannon

• Decision Date: 06 April 1967
• Docket Number: CA-CR,No. 1,1
• Citation: 425 P.2d 861,5 Ariz.App. 291
• Parties: STATE of Arizona, Appellee, v. Othellon HANNON, Appellant. 98.
• Court: Arizona Court of Appeals

Page 861

425 P.2d 861

5 Ariz.App. 291

STATE of Arizona, Appellee, v. Othellon HANNON, Appellant.

No. 1 CA-CR 98.

Court of Appeals of Arizona.

April 6, 1967.

Darrell F. Smith, Atty. Gen., Anthony H. Mason, Asst. Atty. Gen., for appellee.

Gibson & Gibson by Franklin K. Gibson, Phoenix, for appellant.

STEVENS, Judge.

The defendant was convicted on two counts of assault with a deadly weapon in violation of Section 13--249, A.R.S., and was sentenced to the Arizona State Prison on both counts for a period of not less than three nor more than four years, both terms to run concurrently. The issue before this Court is whether the trial court committed reversible error in allowing to be introduced in evidence testimony of a prior specific act of misconduct of the defendant.

There is a conflict in the evidence which was presented to the jury. We will review this evidence in a light most favorable to upholding the jury's verdict of conviction. State v. Hardin, 99 Ariz. 56, 406 P.2d 406 (1965); State v. Taylor, 2 Ariz.App. 314, 408 P.2d 418 (1965).

The encounter in question began when the defendant was returning home from the barbershop. A car driven by a Delbert Branham, occupied by Elmer Slaughter and two other men, pulled into a position in front of the defendant's car. The cars proceeded in this order to the place where the shooting occurred. The defendant stated that Branham was driving his car at a slow rate of speed, would not let the defendant pass and, at one point, almost ran the defendant off of the road. This testimony was not supported by the occupants of the Branham car. Branham did state that he drove slowly over the road on which the shooting occurred because it was unpaved and bumpy and the rear end of his car was lowered.

While on this road, Branham stopped his car when a group of acquaintances who were gathered in front of one of the residences adjacent to the road, yelled at him. A few words were exchanged and the Branham car was either stopped or moving forward when the defendant bumped into the rear of the Branham car. There is a conflict in the evidence as to whether the defendant or Branham got out of the car first. The defendant said it was Branham. Branham did not remember who it was. The testimony of the other witnesses was that the defendant then jumped out of his car, said 'This is what I have been waiting for' and started firing a pistol at the Branham car. Slaughter, who was sitting in the back seat of the Branham car, was hit in the hand. Branham was hit in the left wrist either while his car door was still closed or while he was getting out. Branham advanced toward the defendant in an attempt to disarm the defendant. The defendant was backing up trying to unjam his gun, which he did just when Branham was within arms-reach. The defendant fired his gun and Branham fell to the ground. A total of four or five rounds had been fired during the encounter. The defendant jumped into his car and drove home. When he arrived at home, the defendant's father persuaded the defendant to turn himself in. The defendant was apprehended while en route to the police station with his father.

On direct examination, the defendant stated that he never carried a gun on his person. To impeach this statement, the State was permitted to question the defendant on cross-examination relative to an incident two weeks prior to the shooting of Branham in which the defendant fired a pistol into the car of a Larry Criddle. According to the defendant, Criddle's car was parked in or so near the defendant's driverway that the defendant could not enter. The defendant told Criddle to 'move your car' and Criddle replied 'I am mot going to move my car. It has been sitting here all day.' The defendant walked around to Criddle's side of the car where the door was open, saw Criddle holding a knife that he was using to clean his fingernails, fired two shots (one into the door) and said 'drop the knife'. There is a conflict between the testimony of Criddle, who testified for the State on rebuttal, and the defendant as to whether the defendant walked up with the gun or got it out of his car when he saw Criddle holding the knife. This incident did not result in a conviction of the defendant.

The defendant contends that it is a recognized general rule of law that a witness cannot be impeached by a showing of specific acts of misconduct where such acts do not result in a conviction of a felony. Section 68, Udall Arizona Law of Evidence, Page 107. We have no quarrel with this statement of the law insofar as it...