State v. Horton
| Decision Date | 05 January 1972 |
| Docket Number | No. 2229,2229 |
| Citation | 492 P.2d 395,108 Ariz. 16 |
| Parties | STATE of Arizona, Appellee, v. Percy HORTON, Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen., Paul J. Prato, Asst. Atty. Gen., Phoenix, for appellee.
Ross P. Lee, Public Defender, Maricopa County, James H. Kemper, Deputy Public Defender, Phoenix, for appellant.
Percy Horton was charged with one count of robbery and one count of assault with a deadly weapon. Prior to trial he moved to suppress any in-court identification made by the victim. The trial court ruled that identification made at the actual lineup would be suppressed but the in-court identification was admissible. Upon trial the jury returned a verdict against the defendant on both counts as charged.
On April 19, 1970, at approximately 2:00 to 2:30 in the morning James Busby was in the vicinity of 18th Street and Van Buren making a long distance phone call when a man, later identified as the defendant, confronted him with a gun which the man stuck in the victim's ribs and threatened to shoot him if he made a sound. The man then proceeded to search Busby's pockets and removed a checkbook and wallet containing $78 in cash and various cards. The robber then ran off. The telephone operator overheard the man during the robbery and immediately called the police.
Officer Armando Soldate testified that while on duty with Officer Gustafson that same evening he observed a vehicle make a quick turn into an alley and continue at a high rate of speed down the alley. The officers followed the vehicle and noticed someone jump out of the vehicle. The driver of the vehicle, the defendant, finally stopped in a driveway after running through stop signs and leading the officers on a long chase. He leaped from his car and ran, pursued by Officer Soldate who caught him and arrested him for reckless driving. At that time the defendant declared, '(y)ou can arrest me for that reckless driving, but you can't get me for no robbery.'
Within a few minutes after the defendant was arrested the officers were informed by radio that there had been a robbery in the vicinity. The defendant was placed in custody for reckless driving.
The following day the defendant was placed in a lineup with four other individuals and Busby identified him as the person who had robbed him. He was not represented by counsel at the lineup. Subsequently he was charged with the crimes of robbery and assault with a deadly weapon.
The basis of defendant's appeal is two-fold: (1) the court erred in refusing to suppress the in-court identification, and (2) it was error to convict and sentence defendant on both counts charged. The court correctly admitted the in-court identification because it was based upon observation of the defendant at the robbery and not at the lineup. See State v. Washington, 107 Ariz. 521, 489 P.2d 1201 (1971).
The second question raised on this appeal is whether it was error to convict the defendant of both robbery and assault with a deadly weapon. A.R.S. § 13--1641 (1956) provides:
This case is squarely on all fours with State v. George, 108 Ariz. 5, 491 P.2d 838 (12--15--71); See also State v....
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State v. Price
...multiple convictions for the same act.3 See State v. Jorgenson, 108 Ariz. 476, 477, 502 P.2d 158, 159 (1972); State v. Horton, 108 Ariz. 16, 17-18, 492 P.2d 395, 396-97 (1972). Second, the court in Sowards went on to analyze the facts of that case, concluding "the aggravated assault of each......
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State v. Cassius
...of the elements in one charge and a determination of whether the facts left support the other charge. See also, State v. Horton, 108 Ariz. 16, 492 P.2d 395 (1972); State v. George, 108 Ariz. 5, 491 P.2d 838 (1971), and State v. Bartky, 16 Ariz.App. 421, 493 P.2d 1226 In spite of the seeming......
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State v. Jernigan
...of this issue was succinctly stated in State v. George, 108 Ariz. 5, 491 P.2d 838 (1971) and reaffirmed in State v. Horton, 108 Ariz. 16, 492 P.2d 395 (1972). 'The practical test is to eliminate the elements in one charge and determine whether the facts left would support the other charge.'......
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State v. Lamb
...Westbrook, 79 Ariz. 116, 285 P.2d 161 (1954), recently applied in State v. George, 108 Ariz. 5, 491 P.2d 838 (1971) and State v. Horton, 108 Ariz. 16, 492 P.2d 395 (1972). Applying the aforementioned test to the facts of the case at bar, it is apparent that the assault with a deadly weapon ......