State v. Kellington
Decision Date | 08 May 1963 |
Docket Number | No. 1226,1226 |
Parties | The STATE of Arizona, Appellee, v. Albert Edward KELLINGTON, Appellant. |
Court | Arizona Supreme Court |
Peterson, Estrada & Matz, Phoenix, for appellant.
Robert W. Pickrell, Atty. Gen., Ross Anderson, Asst. Atty. Gen., Phoenix, for appellee.
This is an appeal from a conviction of a charge of receiving the earnings of a prostitute. 1 The appeal is based upon admitting in evidence certain statements alleged to have been made by the defendant and the denial of a motion for mistrial. The state's case consisted of the testimony of five police officers. The defendant did not present any evidence and did not take the witness stand.
Defendant complains that the state's witnesses testified regarding conversations with the defendant wherein the latter (1) confessed or admitted prior conviction of a felony, and (2) confessed or made admissions against interest regarding the charge against him. He claims that such testimony was improper because (1) there was no showing that the purported confessions or admissions were voluntarily given, and (2) because a prior conviction of an unrelated felony may only be used as impeachment of a witness, and as the defendant did not testify, he could not be thus impeached.
The state contends that as defendant's counsel did not object at the time the testimony complained of was given, or move to strike with an admonition to the jury to disregard it, defendant thereby waived any possible error inherent in it.
The testimony referred to was as follows. Officer Roth, on direct examination, testified to a conversation hd had with the defendant following his arrest:
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Cross-examination of another arresting officer, Gardiner, elicited the following:
We have consistently held that the accused's record of conviction of a prior felony is only admissible for impeachment purposes after he takes the stand, and then it is limited in scope. State v. Hunt, 91 Ariz. 145, 370 P.2d 640. To permit such testimony under the circumstances here, where the defendant did not take the witness stand was highly prejudicial. Both witnesses were police officers testifying for the state, and should have known, or been admonished by the prosecutor, that a mention of prior conviction under such circumstances was highly improper. Had counsel for defendant made an objection in the presence of the jury, and had the trial judge admonished the jury to strike such testimony from their minds, it would have served no real purpose. The damage had been done, for the effect of such testimony, having no relation to the crime charged, was to create in the minds of the jury an impression that the defendant's character was bad, and no admonition by the court could expunge this prejudicial attribute. 2 Defendant's counsel brought this matter to the attention of the trial court in his request for a mistrial. He pointed out that certain testimony, though stricken by the court was 'like the bell that cannot be unrung or the whistle that cannot be unblown.' This was sufficient to advise the court the error was not waived.
During the course of his narrative testimony on direct examination Officer Roth also testified:
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State v. Miranda
...error that was made in the admission of this testimony. We see no 'bell' here that could not be 'unrung' as in State v. Kellington, 93 Ariz. 396, 398, 381 P.2d 215, 217 (1963). This testimony, if 'prejudicial' at all, is only so because it might connect the defendant with this crime. It is ......
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State v. Lamb
...reversible error and the trial court should have granted his motion for a mistrial. In support the defendant cites State v. Kellington, 93 Ariz. 396, 381 P.2d 215 (1963); State v. Hunt, 91 Ariz. 145, 370 P.2d 640 (1962); State v. Byrd, 62 Ariz. 24, 152 P.2d 669 (1944); and State v. Serrano,......
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State v. Winters
...of the defendant created in the minds of the jury the impression that the defendant had a previous criminal record. State v. Kellington, 93 Ariz. 396, 381 P.2d 215 (1963). We find that the record is devoid of any evidence which indicates that the testimony regarding the photographic identif......
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State v. Cobb
...404 P.2d 732 (1965). The defendants submit, on the basis of State v. Pulliam, 87 Ariz. 216, 349 P.2d 781 (1960) and State v. Kellington, 93 Ariz. 396, 381 P.2d 215 (1963), that the trial court should have, on its own motion, instructed the jury as to the voluntariness of the exculpatory sta......