State v. Lemon, 2697
| Decision Date | 01 May 1974 |
| Docket Number | No. 2697,2697 |
| Citation | 521 P.2d 1000,110 Ariz. 568 |
| Parties | STATE of Arizona, Appellee, v. Tommy LEMON, Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen., Phoenix, by Howard L. Fell, Asst. Atty. Gen., Tucson, for appellee.
Albert R. Gamble, Tucson, for appellant.
Appellant was convicted of armed robbery after a trial before the court sitting without a jury. From the conviction and a denial of his motion to quash the indictment, he appeals. Judgment affirmed.
On the evening of April 29, 1972, appellant and four companions were at a park where they met three individuals who were interested in purchasing marijuana. One of appellant's group, acting as spokesman, said that they would be willing to sell the marijuana if the purchasers would follow them to another location. When the two cars arrived at a deserted side street, appellant and two others, Mike Watson and Gary Thompson, left their car and approached the three victims, while two females remained inside the car. Watson opened the trunk, presumably to get marijuana but instead pulled a gun on the victims.
One of the victims, Mike Fass, fled, but another, Mike Layton, was robbed of $350.00. Appellant, the other suspects and the two girls left the scene in their car but were pursued by the victims. During this chase, appellant fired a number of shots into the air with the gun in order to frighten his pursuers.
For his first ground of appeal, appellant urges that there was insufficient evidence before the trial court to convict him of armed robbery. It is his position that he was only a bystander and not a participant.
In considering whether a verdict is contrary to the evidence or is not supported by sufficient evidence, we do not decide whether an appellate court would arrive at the same verdict as the trier of fact. Rather, the question is whether there is competent evidence to support the conclusions reached. State v. French, 104 Ariz. 359, 453 P.2d 505 (1969); State v. Norgard, 103 Ariz. 381, 442 P.2d 544 (1968).
By A.R.S. § 18--139:
'All persons concerned in the commission of a crime whether it is a felony or a misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, * * * are principals in any crime so committed.'
On the evening of April 29, 1972, appellant was wearing a cast on his right foot which extended up to just below the knee, causing his pant leg to split. He was easily identifiable to all the victims who testified to that effect at the trial. Joe Parker, one of the victims, testified:
'Q. Were you able to see what was happening with Mike Layton at this time?
A. They were going through his pockets on the other side of the car.
Q. Do you remember who specifically was going through his pockets?
A. The person who had the cast on that night.'
And again under cross-examination, Parker testified:
'Q. Are you testifying, sir, that you specifically saw Tommy Lemon turn Layton's pockets inside out?
A. Yes.'
Although Parker was subjected to rigorous cross-examination and although he admitted to difficulties in watching Layton while a gun was pointed at his face, the testimony is plainly relevant to support the conclusion that appellant participated in the offense as charged.
Moreover, Michael Layton testified on direct examination:
'Q. Okay, was anything happening to you?
A. Yes, my pockets were being gone through.
Q. Who was this being done by?
A. Lemon.
Q. How do you know Lemon was doing it?
A. He had a cast on his foot.
Q. Was there ever more than one person that went through your pockets?
A. No, not that I know of.'
And on cross-examination he said:
'Q. Are you sure, then, that you knew where Lemon was at?
A. Yes. He was behind me because when he began taking my wallet, I seen the cast on his foot.'
As his second issue for appeal, appellant asserts that he was denied due process of law because the indictment was brought three months after the date of the alleged commission of the offense. Appellant claims not only a deprivation of his Fifth and Fourteenth Amendment right to due process of law, but of his Sixth Amendment right to a speedy trial.
Appellant was arrested on April 29, 1972, the evening of the incident. On July 13, 1972, two and one-half months later, the Grand Jury returned an Indictment. The record shows that until June 8, 1972, appellant, age 17, was under the jurisdiction of the juvenile court system. On that date, the judge presiding in the juvenile court ordered that appellant be transferred to the superior court for such further prosecution as an adult. Appellant argues that is presumed that he was unable to avail himself of evidence which might otherwise have been available to him by this delay.
In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the Supreme Court of the United States dealt with a claimed deprivation of due process caused by a lengthy (38 months) pre-indictment delay. There, appellees (defendants) were urging that a Court of Appeals decision be affirmed which quashed the indictment. Justice White, author of the majority opinion, rejected appellees' argument and reversed the Court of Appeals, saying:
404 U.S. 307, 325--326, 92 S.Ct. 455, 466, 30 L.Ed.2d 468, 482.
The statute of limitations for armed robbery in Arizona requires that an indictment be filed within five years after the commission of the offense. A.R.S. § 13--106(B). Appellant has not pointed to any example of possible prejudice either in hindering his preparation for a defense or by impairment of his or any other witness' memory at the trial. The delay was not for harassment of appellant; rather, it was due to the proceedings in juvenile court which had jurisdiction of appellant pursuant to A.R.S. § 8--202(D), Added Laws 1970.
While appellant complains of the two- and a half-month period of delay between the alleged commission of the offense and the indictment and arrest pursuant thereto, he does not claim that the period between the indictment and trial deprived him of his Sixth Amendment right to a speedy trial. If we apply the four-pronged balancing test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and State v. Brannin, 109 Ariz. 525, 514 P.2d 446 (1973), it is clear that appellant has not been denied a speedy trial. First, the delay was not inordinately long. Second, the reason for the delay was a legitimate one, and not a part of a plan by the State to prejudice the appellant. Third, although appellant moved to quash the indictment because of an asserted denial of the right to a speedy trial, he waived the 60-day trial period at his arraignment. Again, on November 30, 1972, appellant made a motion for continuance, requesting that the trial be set still further in the future. Finally, as we have previously stated, was are not aware of any prejudice in fact resulting from any delay in the proceedings.
We therefore conclude that appellant was neither deprived of his Fourteenth Amendment right to due process of law, nor the Sixth Amendment right to a speedy trial.
As his final issue, appellant claims that he was denied the equal protection of the laws because he was...
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