State v. Jones

• Decision Date: 13 February 1976
• Docket Number: No. 1,CA-CR,1
• Citation: 546 P.2d 43,26 Ariz.App. 66
• Parties: The STATE of Arizona, Appellee, v. Clarence Eugene JONES, Appellant. 1230.
• Court: Arizona Court of Appeals

Page 43

546 P.2d 43

26 Ariz.App. 66

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

No. 1 CA-CR 1230.

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

Feb. 13, 1976.

Bruce E. Babbitt, Atty. Gen., by William J. Schafer III, Galen H. Wilkes, Asst. Attys. Gen., Phoenix, for appellee.

David M. Lurie, Phoenix, for appellant.

OPINION

OGG, Judge.

After a trial by jury, appellant was convicted of armed robbery of a Circle K store on January 4, 1974. He was sentenced to not less than ten nor more than fifteen years in the Arizona State Prison. On appeal, he raises three issues.

First, whether the trial court improperly admitted evidence referring to the robbery of the same store on February 15, 1974. Second, whether appellant's confession should have been suppressed because it was obtained by means of a promise that appellant would receive assistance with his drug problem. Third, whether there was sufficient evidence to support the conviction of armed robbery.

As to the first issue, the Circle K clerk was permitted to testify that appellant robbed the same store on February 15, 1974. The same clerk was the victim of both robberies. When appellant entered the store on February 15, the clerk recognized him as the January 4 robber. Ordinarily, evidence of other crimes is not permitted. However, when the identity of the perpetrator is in doubt, evidence of other crimes will be admitted if it has a logical tendency to show the identity of the defendant. Greve v. State, 36 Ariz. 325, 285 P. 274 (1930).

In the current case appellant challenged the validity of the clerk's in-court identification of him. Therefore the issue of identity was presented to the jury. Certainly other encounters with an individual, particularly when the encounter is under unusual circumstances, will make identification of that individual easier and more certain. The February 15 encounter and the nature of that encounter were therefore vital to fortify the clerk's identification at trial. See Robinson v. United States, 148 U.S.App.D.C. 58, 459 F.2d 847 (1972) (evidence of other narcotics purchases by an undercover police officer were held to be admissible because the number of encounters between the witness and the accused and the importance of those encounters were vital to fortify the identification of the defendant); People v. Ellis, 26 Ill.2d 331, 186 N.E.2d 269 (1962) (evidence of an earlier robbery of the same victim was properly admitted because the identity of the defendant was a material issue and the fact that the victim had been previously robbed weighed heavily upon his ability to identify accused); People v. Davis, 14 Ill.2d 196, 151 N.E.2d 308 (1958) (testimony that the defendant had robbed the victim three times previously was admissible because the identification of the witness was challenged and the fact that the witness had seen the defendnat before affected the certainty of the identification); People v. Thompson, 406 Ill. 555, 94 N.E.2d 349 (1950); United States v. Lewis, 423 F.2d 457 (8th Cir. 1970) cert. den. 400 U.S. 905, 91 S.Ct. 146, 27 L.Ed.2d 142.

While the evidence was admissible on this ground alone, the prosecutor was permitted to argue to the jury that these two incidents show a 'common scheme or design' on the part of appellant. This issue is treated more extensively in our opinion in appellant's other appeal (State v. Jones, 26 Ariz.App. 68, 546 P.2d 45, filed February 13, 1976).

For 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, appellant cites State v. McFall, 103 Ariz. 234, 439 P.2d 805 (1968) (which held 'a confession to be free and voluntary within the meaning of the Fifth Amendment to the Constitution of the United States must not have been obtained by 'any direct or implied promise, However slight . . .' Malloy v. Hogan (1964), 378 U.S. 1 at p. 7, 84 S.Ct. 1489 at p. 1493, 12 L.Ed.2d 653.')

While we agree with this statement as a general principle of law, we cannot say that the trial court erred in finding that appellant's confession was not obtained by improper promises. Interrogating police officer Lash testified that he did not promise appellant anything in return for his admissions. Appellant testified that Officer Lash never directly tied his drug problem to the confession....