State v. Jones

• Decision Date: 13 February 1976
• Docket Number: CA-CR,No. 1,1
• Citation: 546 P.2d 45,26 Ariz.App. 68
• Parties: The STATE of Arizona, Appellee, v. Clarence Eugene JONES, Appellant. 1231.
• Court: Arizona Court of Appeals

Page 45

546 P.2d 45

26 Ariz.App. 68

The STATE of Arizona, Appellee, v. Clarence Eugene JONES, Appellant.

No. 1 CA-CR 1231.

Court of Appeals of Arizona, Division 1, Department A.

Feb. 13, 1976.

Rehearing Denied March 23, 1976.

Review Denied April 20, 1976.

Bruce E. Babbitt, Atty. Gen., by William J. Schafer III, Ronald L. Crismon, Asst. Attys. Gen., Phoenix, for appellee.

David M. Lurie, Phoenix, for appellant.

OGG, Judge.

After a trial by jury, appellant was convicted of armed robbery of a Circle K store on January 20, 1974 and sentenced to not less than five nor more than five and one-half years in Arizona State Prison. This sentence was to run consecutively to the ten to fifteen year sentence imposed upon defendant in Maricopa County Case No. CR--80136, which was affirmed by this court on February 13, 1976, No. 1 CA-CR 1230.

On appeal, appellant raises six issues:

1. Whether the trial court improperly admitted evidence referring to the robbery of another Circle K store on two other occasions.

2. Whether appellant's confession should have been suppressed because it was obtained by the means of promises that appellant would receive assistance with his drug problem.

3. Whether there is sufficient evidence to support the conviction of armed robbery.

4. Whether the trial court erred in commenting on the evidence by stating that the record may reflect that a witness identified appellant.

5. Whether the trial court should have granted a mistrial after appellant was gagged and placed in a straitjacket in the presence of the jury.

6. Whether the trial court erred in refusing appellant's request to discharge his counsel.

As to the first issue, the trial court allowed the state to introduce evidence as to two other robberies of another Circle K store committed by appellant. These two other robberies occurred on January 4 and February 15, 1974. The robbery for which appellant was convicted occurred on January 20, 1974. The two other robberies involved the Same Circle K store and the same clerk.

The general rule is that evidence showing or tending to show the commission of another crime entirely distinct and independent of that for which a defendant is on trial is not admissible. State v. Tuell, 112 Ariz. 340, 541 P.2d 1142 (1975); Dorsey v. State, 25 Ariz. 139, 213 P. 1011 (1923). However, there are exceptions to this general rule. Evidence of another criminal act will be admitted if it directly establishes some essential element of the crime charged or has an independent relevancy for some purpose other than showing a probability that the accused committed the crime for which he is on trial merely because he is of criminal character. Tuell, supra; State v. Ballesteros, 100 Ariz. 262, 413 P.2d 739 (1966).

In the current case, the state offered the evidence of appellant's other crimes in order to bolster the witness's identification of appellant. The state argued that because appellant had committed two other crimes in a similar manner, it was likely that he was the perpetrator of the instant offense as well. Preliminarily, it should be noted that where the other offenses are admitted to show identity or a common design or scheme, the degree of similarity required is greater than when the other crimes are admitted to show intent, motive or the absence of mistake or accident. Wigmore, Evidence, Section 304 (3rd Edition 1940). Compare State v. Little, 87 Ariz. 295, 350 P.2d 756 (1960) with State v. Tisnado, 105 Ariz. 23, 458 P.2d 957 (1969). When evidence is offered to prove identity through a similar modus operandi, the following standard has been applied:

It is required that there be a high degree of similarity between the offenses and an element of uniqueness in the method of committing the crimes so as to give grounds for the inference that the crimes are committed by the same person. State v. Hernandez, 7 Ariz.App. 200, 437 P.2d 952 (1968).

Our Supreme Court has stated when other crimes are admitted to show common plan or scheme, the similarities between the offenses 'must be in those important aspects where normally there could be expected to be found differences. Evidence is not admissible except as it may show a tendency or likelihood of a plan common to all offenses to commit the crime.' State v. Akins, 94 Ariz. 263, 266, 267, 383 P.2d 180, 182, 183 (1963); State v. Moore, 108 Ariz. 215, 495 P.2d 445 (1972). It has also been stated that 'the requisite uniqueness and similarity may be manifested by the defendant's appearance, by the character of his physical acts, or by the accompanying circumstances.' State v. Latino, 25 Ariz.App. 66, 540 P.2d 1285 (1975).

Of course, each case must be decided on its own particular facts. Further, the trial court should be given considerable discretion in the admission of this type of evidence because it is in the best position to evaluate the evidence and to balance the probative weight of the evidence with the possible prejudice to the defendant. See State v. Taylor, 9 Ariz.App. 290, 451 P.2d 648 (1969); State v. Finley, 85 Ariz. 327, 338 P.2d 790 (1959); Udall, Arizona Law of Evidence, Section 115 (1975 Supp.) However, several Arizona cases are instructive on the degree of similarity necessary for admission.

In Latino, supra, Division Two of this court found the requisite degree of similarity between two automobile arson cases. The court stated:

Appellant was in financial difficulty before both fires. Both times it was his property that burned, he claimed he was in the Buggy Wheel Tavern when the fires occurred, and five-gallon cans filled with flammable liquid accelerants were used. Moreover, in both instances the cans were left on the scene with the apparent purpose of causing explosions. Finally, in both instances appellant collected insurance. We think the circumstances that surrounded the burning of appellant's car and the burning of his house possess a high degree of similarity. In addition, the abandonment of accelerant-filled cans at the scene both times supplies an element of uniqueness. The evidence of the burning of appellant's car was sufficient to raise an inference that the same person burned his house. It was therefore admissible to establish identity.

In State v. Wehrhan, 25 Ariz.App. 277, 542 P.2d 1157 (1975), Division Two of this court upheld the admissibility of two other robberies for the purpose of establishing identity where the robber used stocking masks of the same color in each case and a long-barrelled gun.

In State v. Moore, 108 Ariz. 215, 495 P.2d 445 (1972), our Supreme Court reversed a conviction where the only similarities between the subject robbery and another robbery occurring 42 days later were the use of guns and getaway vehicles and the fact that both occurred when no customers were present.

In the current case, the three incidents each involved a Circle K store and the two robberies occurred within 26 days and 16 days of the instant offense. Each occurred at approximately the same time of the evening (7:50 p.m.; 8:30 p.m.; 7:00 p.m.) In each case, appellant entered the store as a normal customer and did not attempt to conceal his identity or his features in any manner.

After unobtrusively coming into the store, appellant went to the refrigerator section containing the beer and wine and selected an item (a can of Schlitz beer was selected in two cases and a bottle of wine in the third). In each case, appellant took these items to the cash register in the manner of a normal customer. When it was his turn appellant told the clerk that he intended to rob the store and that he or she should empty both cash registers into a paper bag. In each case appellant either displayed a gun or told the clerk that he had a gun. In two cases the clerk saw the gun and in the third the appellant indicated that it was under his coat. In each case appellant made an attempt to at least partially conceal the gun and only the barrel of the gun was displayed when the gun was visible.

Where the gun was observed, the descriptions of it were identical as being small and black. In each case, appellant did not accost or threaten the other customers in the store.

Finally, after receiving the money, appellant walked out of the store. None of the witnesses observed a getaway car in any of the cases.

Unlike the Moore case there is more similarity in the instant case than the use of a getaway car and a gun. Appellant's conduct in each case was similar in areas where there would normally be some slight differences. Accordingly, we cannot say that the trial court abused its discretion by permitting the evidence of other crimes to be admitted.

As to appellant's second ground on appeal, he claims that his confession should not have been admitted into evidence because it was obtained by improper promises that he would receive treatment for his drug problem. In support of this argument he cites State v. McFall, 103 Ariz. 234, 439 P.2d 805 (1968). While we agree that McFall contains the general principle of law governing this case, we cannot say that the trial court erred in finding that appellant's confession was not obtained by improper promises. The interogating police officer definitely stated that no promises were made to appellant which induced his confession.

Even appellant did not testify as to any implied or express promises. In any event it is for the trial court to resolve any conflicts in the evidence and we are bound by that resolution. United States v. Sherman, 430 F.2d 1402 (9th Cir. 1970) cert. den. 401 U.S. 908, 91 S.Ct. 865, 27 L.Ed.2d 805, reh. den. 401 U.S. 1015, 91 S.Ct. 1249, 28 L.Ed.2d 552; State v. Hughes, 104 Ariz. 535, 456 P.2d 393 (1969). In light of the substantial evidence supporting the finding that no promises were made, appellant's second ground on appeal is without merit.

As to appellant's third ground on appeal, he claims that there was not sufficient evidence for the jury to find that he used a real gun in the robbery....