State v. Linne, 1
| Decision Date | 19 October 1972 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 18 Ariz.App. 345,501 P.2d 1186 |
| Parties | STATE of Arizona, Appellee, v. John Byron LINNE, Appellant. 405. |
| Court | Arizona Court of Appeals |
Gary K. Nelson, Atty. Gen., by Louis A. Moore, Jr., Asst. Atty. Gen., Phoenix, for appellee.
States, Meyer & Vucichevich, by Dale L. States, Phoenix, for appellant.
On 17 July 1970, the State of Arizona filed an information against the defendant, charing him with possession of a stolen motor vehicle. Defendant pled not guilty and the matter went to trial on 22 February 1971. The jury returned a verdict of guilty against defendant and the judgment of guilt was entered on 31 March 1971. Defendant's timely motion for judgment of acquittal n.o.v. and motion for new trial were denied. Defendant appeals therefrom.
The facts viewed in a light most favorable to sustaining the conviction are as follows:
The automobile in question, a 1969 Corvette, was allegedly owned by Richard Eyrich who was a parachute folder for Lockheed Air Service at Luke Field. At trial, Mr. Eyrich testified that he could not recollect the license number of his auto or the number of the Luke Air Force Base sticker attached to his car, nor could he positively identify the automobile parts depicted in the photographs as being from his Corvette. In addition, he could not make positive identification of a set of keys allegedly belonging to the Corvette purportedly possessed by defendant.
Jack Hackworth a detective with the Phoenix Police Department, testified that on or about 8 May 1971 he entered a garage at 3206 East Pierce, Phoenix, Arizona, in which he found various automobile parts and tools. Over objections by defense counsel, Detective Hackworth testified from photographs taken at the garage which depicted the automobile parts found there. The vehicle in question was not identified by Detective Hackworth. Walter Reynolds, another police officer, also testified from the photographs over defense counsel's objections. He discussed the various automobile parts depicted in the photos. Officer Reynolds also stated that the automobile parts found in the garage were from stolen vehicles. He later admitted thiat this information was provided by someone else and not based on his own investigation. In addition, Officer Reynolds stated that he found no identifying number on the vehicle parts in the garage but that he determined they were from Mr. Eyrich's Corvette because of a Luke Air Force Base sticker attached to the grill and a key obtained from Eyrich's apartment which fit a door lock on the vehicle parts found in the garage.
Helen Loper, owner of the Pierce Street Garage, testified that she had rented the garage in January 1969 to a man named Russell. Mr. Russell always paid the rent and the defendant was never there when it was paid. Mrs. Loper stated that she had seen the defendant at the garage a few times but could not positively state when she saw the defendant last.
A technician for the Police Department testified that he found a Pepsi bottle in the garage from which he lifted one fingerprint which was identified as defendant's. The prosecution, however, was unable to produce the bottle at trial.
The alleged accomplice, Horace Russell, testified that the auto was not stolen but was given to the defendant and himself at 27th Avenue and Camelback during March of 1971 by a man named Marzick. Russell stated that after defendant drove the auto to the garage Russell was to take out the motor and transmission and give it to Mazick. Russell also alleged that all the parts found in the garage belonged to him and that the auto frames found in the garage had been cut up by him. In addition, Russell testified that he had removed the serial number and door locks from the auto in question. His testimony also revealed that the pop bottles found in the garage could have been there for as long as four months.
Defendant presents five questions for review:
1. Did the trial court err by admitting evidence which may have inferred the commission of other crimes by defendant?
2. Was it reversible error for the trial court to fail to give Instruction No. 215 of the Maricopa Recommended Jury Instructions when the State relies on testimony of an accomplice?
3. Did the State meet its burden of connecting the defendant with the commission of the crime independent of the accomplice's testimony?
4. Did the court err in denying defendant's motion for a judgment n.o.v.?
5. Should a mistrial be granted as a matter of law when a jury being polled indicates that a guilty verdict was not unanimous?
The specific objection urged by the defendant is that it was error to allow Officers Hackworth and Reynolds to tender their opinions that the automobile parts were stolen and to allow photographs of the automobile parts to be introduced, absent evidence that the parts were stolen and that defendant had some connection with them. Defendant strongly argues that it was essential that the evidence in question be connected with the defendant and identified as stolen property before it could be admitted as evidence to prove a part of a common scheme.
The State, on the other hand, argues that the photographs and testimony were admissible on the basis of relevancy. According to the State, these matters were admissible and relevant as facts showing knowledge and intent and are properly part of the res gestae or 'complete story'.
A general rule is set forth in 22A C.J.S. Criminal Law § 682, at page 730, as follows:
'* * * on a prosecution for a particular crime, evidence which shows or tends to show that accused has committed another crime wholly independent of, and unconnected with, that for which he is on trial, even though it is a crime of the same sort, is irrelevant and inadmissible.'
Various Arizona authorities have established this rule to be the law of this State. See, State v. Norgard, 6 Ariz.App. 36, 429 P.2d 670 (1967); State v. Gallagher, 97 Ariz. 1, 396 P.2d 241 (1964), and State v. Thomas, 71 Ariz. 423, 229 P.2d 246 (1951).
It is apparent that the trial court was aware of the evidentiary problems posed by the instant case. The transcript is revealing: In response to defense counsel's objections to the evidence in question, the Court and prosecution stated:
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