State v. Kelly
| Citation | 595 P.2d 1040,122 Ariz. 495 |
| Decision Date | 15 May 1979 |
| Docket Number | CA-CR |
| Parties | STATE of Arizona, Appellee, v. Christopher E. KELLY, Appellant. 13449. |
| Court | Court of Appeals of Arizona |
Appellant, Christopher E. Kelly, was convicted following a jury trial of assault with a deadly weapon, A.R.S. § 13-249. The court sentenced him to a term of not less than eight nor more than twelve years in prison. He subsequently lodged his first appeal in this Court. State v. Kelly, 1 CA-CR 1803. While this appeal was pending, appellant filed a petition for post-conviction relief, 17 A.R.S., Rules of Criminal Procedure, rule 32. The court afforded him an evidentiary hearing, after which the petition was granted. Appellant then filed a motion to dismiss the appeal under 17 A.R.S., Rules of Criminal Procedure, rules 31.4(a)(2) and 31.15(a)(2), and we dismissed the appeal.
Appellant's initial success, however, was short lived because we granted the State's petition for review and vacated the order for a new trial. State v. Kelly, 118 Ariz. 413, 577 P.2d 264 (1978). Following this turn of events, appellant successfully sought a delayed appeal, which was granted, and the present appeal is now before this Court. The facts are set forth in this Court's opinion in State v. Kelly, supra, and need not be repeated here for a resolution of the issues presented.
The first issue is whether appellant was properly sentenced under A.R.S. § 13-249(B) rather than A.R.S. § 13-249(A) by reason of the information's failure to give him adequate notice that he was being charged under Subsection B. As of the date of the assault, the statute in question read as follows:
The information in pertinent part read:
Appellant's argument is that the Information failed to give adequate notice that he was being charged under the provisions of Subsection B with its increased penalties. He relies upon State v. Garcia, 114 Ariz. 317, 560 P.2d 1224 (1977), arguing, that here as in Garcia, the Information used language applicable to both Subsections A and B of A.R.S. § 13-249 without a specification as to which subsection the State was alleging. The phrase, "(while) armed with a gun or other deadly weapon," is the phrase that appears in Subsection B. However the Information goes on to allege that the victim had been assaulted "with a deadly weapon or instrument" which is language that is found only in Subsection A.
We hold that the Information gave adequate notice that appellant was being charged under A.R.S. § 13-249(B). Not only does the initial crucial phrase "while armed with a gun or other deadly weapon" come from Subsection B, but also the subsequent phrase, "with a deadly weapon or instrument," which may tend to draw the reader's attention to Subsection A, is modified by the following phrase: "to-wit: a gun." The facts in this case also clearly involve the use of a gun. At least three shots were fired at the victim. We hold that since in this case the weapon used, a gun, was specifically enumerated in Subsection B of A.R.S. § 13-249 and since the Information clearly specified that a gun was used, no possible confusion could have resulted. State v. Kidd, 116 Ariz. 479, 569 P.2d 1377 (1977); State v. Gordon, 120 Ariz. 172, 584 P.2d 1163 (1978).
Appellant next alleges as error certain questions propounded to his father by the prosecutor during cross-examination. On direct, appellant's father had testified about the nature and extent of the injuries to appellant resulting from the initial altercation in the van. The prosecutor then asked:
"Q. Are you aware that when someone is booked into the County jail they take a mug shot of them, a picture?
A. I understand they do, yes.
Q. You didn't arrange to have a picture of him showing his injuries brought to court?
Appellant complains that these questions constituted cross-examination by insinuation. The allegation is that the prosecutor knew that no mug shot had been taken of appellant on the night of his arrest and that, therefore, it would have been impossible for appellant's father to arrange to have that photograph brought to court. Such questioning, dropped without an effort to prove the point, has been condemned. State v. Singleton, 66 Ariz. 49, 182 P.2d 920 (1947). We note, however, that the objection in the trial court was that the questions constituted a comment on appellant's right to remain silent. The objection raised on appeal is different than that raised in the trial court. As the Supreme Court of Arizona has recently said, raising one objection at trial does not preserve another objection on appeal. State v. Long, 119 Ariz. 327, 580 P.2d 1181 (1978).
Furthermore, the foundation for the argument that this was cross-examination by insinuation is that the prosecutor knew that no mug shots had been taken. Aside from the statement by counsel for appellant that the prosecutor knew that no mug shots had been taken, there is nothing on the record to show that the prosecutor knew this before the questions were asked. Also, the prohibition on cross-examination by insinuation applies with full force when the person being questioned is a defendant and the questions involve the commission of prior felonies. where, however, the person being questioned is not the defendant and the questions have nothing to do with whether the defendant has committed prior felonies, the bar to such cross-examination operates with far less force. State v. Hill, 109 Ariz. 93, 505 P.2d 553 (1973). In the context of this record and in view of the particular circumstances under which the questions were asked, we hold that if they were error they were not prejudicial.
The third alleged error arises from the fact that the prosecutor had the victim remove his shirt in front of the jury and point to the wounds he received. Appellant objected in the trial court and here on the basis that the demonstration was purely inflammatory. The prosecutor's justification for having the victim display his wounds was that the display helped the jury see the angles at which the bullets entered his body and that it enabled the victim to point out the entry and exit wounds. This was important because of the nature of the self-defense theory propounded by appellant. Obviously, if the entry wounds were in front of the victim's body, a self-defense theory would be more credible. On the other hand, if...
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