State v. Loggins

• Decision Date: 25 January 1971
• Docket Number: CA-CR,No. 1,1
• Citation: 13 Ariz.App. 577,479 P.2d 724
• Parties: STATE of Arizona, Appellee, v. Edward Lee LOGGINS, Appellant. 272.
• Court: Arizona Court of Appeals

Page 724

479 P.2d 724

13 Ariz.App. 577

STATE of Arizona, Appellee, v. Edward Lee LOGGINS, Appellant.

No. 1 CA-CR 272.

Court of Appeals of Arizona, Division 1.

Jan. 25, 1971.

Rehearing Denied Feb. 24, 1971.

Review Denied March 23, 1971.

Gary K. Nelson, Atty. Gen. by Carl Waag, Asst. Atty. Gen., Phoenix, for appellee

Ross P. Lee, Public Defender, by James H. Kemper, Deputy Public Defender, Phoenix, for appellant.

HOWARD, Judge.

Appellant, the defendant below, was convicted by a jury on two counts of burglary and two counts of grand theft. The jury Sometime between 12:30 a.m. and 1:00 a.m. on May 24, 1967 and prior to 2:15 a.m. on said morning, the premises located at 515 and 517 W. Thomas Road, Phoenix, Arizona, were forcibly entered. An Elba projector and Burroughs adding machine were taken from 517 W. Thomas Road, said premises being occupied by Life & Casualty Insurance Company and a Clary cash register was stolen from the premises occupied by Key-Mart Music Company located at 515 W. Thomas Road.

also found him guilty of a prior offense of second degree burglary committed in the State of California. The defendant was sentenced to not less than ten years nor more than ten years and one day on each count, the sentence to run concurrently. Defendant appeals from these convictions and the sentences.

At approximately 2:00 a.m. on the morning of May 24, 1967, officer William Gene Scott of the City of Phoenix Police Department was in the alley south of Camelback west of 7th Avenue. His attention was attracted by a 1957 green Chevrolet automobile which appeared to be traveling at a high rate of speed. The officer followed the automobile, clocked it at 70 m.p.h. and then pulled the car over. Seated in the driver's seat was Raymond W. Conrad who was charged with the defendant in this case and entered a plea of guilty. On the passenger side sat the defendant. The officer noticed through the back window of the car that the back seat appeared to be stacked with office machinery. Officer Scott did not know at that time that a burglary had taken place. The officer checked on his intercom with the police department and found out that the defendant had a couple of old traffic tickets outstanding. The officer then arrested the defendant for the failure to appear on the traffic tickets and arrested the driver for being drunk and disorderly.

SUFFICIENCY OF THE EVIDENCE

Defendant contends that at most the evidence shows the defendant was present in an automobile which contained stolen property. Citing the case of State v. Andrade, 83 Ariz. 356, 321 P.2d 1021 (1958), defendant claims the evidence is insufficient to support a conviction on any of the counts. Although mere recent possession is insufficient alone to prove burglary or theft, its quality of evidence is of such high degree that only slight corroborative proof of other inculpatory circumstances are needed to warrant a conviction. State v. Humphrey, 11 Ariz.App. 378, 464 P.2d 824 (1970); State v. Ruiz, 11 Ariz.App. 205, 463 P.2d 100 (1970); State v. Oliver, 9 Ariz.App. 364, 452 P.2d 529 (1969); State v. Payne, 7 Ariz.App. 43, 436 P.2d 137 (1968). Is there slight corroborative proof of other inculpatory circumstances to warrant conviction in this case? We turn first to defendant's explanation that he gave to officer Scott. The defendant told Scott that he had been drinking in a bar when Conrad came in and asked him to go for a ride. When he went out to the car with Conrad the stolen goods were already in the automobile. This explanation of the accused is inconsistent when considered with the other evidence in the case. Officer Peterson of the City of Phoenix Police Department testified that he checked the premises involved between the hours of 12:30 a.m. and 1:00 a.m., May 24, 1967. At that time the premises had not yet been broken into. We take judicial notice of A.R.S. § 4--244, subsec. 15 which requires bars in the State of Arizona to close by 1:00 a.m. According to the accused's statements to officer Scott, the burglary would have to have taken place before the bar closed. Officer Peterson's testimony makes it clear, however, that the burglary took place some time after the bar closed, thus casting grave suspicions on the accused's explanation of the presence of the property.

The explanation of the defendant as to the presence of the property, together with the fact that the automobile was speeding, its license plate was arrently purposely bent upward in a manner to obscure the license number to any person observing it Defendant makes a further point. He maintains that the evidence does not show, as far as the burglary is concerned, an intent to commit theft or any felony. This contention is without merit. The evidence clearly shows forcible entry into the premises and further shows that property was actually stolen. This is sufficient circumstantial evidence to prove that when the defendant entered the premises he did so with the requisite intent. Ex parte Seyfried, 74 Idaho 467, 264 P.2d 685 (1953); State v. Gatewood, 169 Kan. 679, 221 P.2d 392 (1950); People v. Rhodes, 137 Cal.App. 385, 30 P.2d 1026 (1934); Vickery v. State, 62 Tex.Cr.R. 311, 137 S.W. 687 (1911); see also State v. Rood, 11 Ariz.App. 102, 462 P.2d 399 (1969).

and the fact that the stolen goods were in plain view in the back seat and the fact that a pistol and burglar tools were found under the passenger seat of the car, sufficiently distinguish the corroboration necessary to support a verdict for burglary and grand theft.

CIRCUMSTANTIAL EVIDENCE INSTRUCTION

Citing the cases of State v. Reynolds, 104 Ariz. 149, 449 P.2d 614 (1969), defendant claims that the court erred in instructing the jury that the law makes no distinction between circumstantial and direct evidence. In the recent Supreme Court case of State v. Harvill, 106 Ariz. 386, 476 P.2d 841 (1970), in a well-reasoned opinion authored by Justice Hays, who by chance happens to be the trial judge in this case, the court expressly overruled that portion of State v. Reynolds, supra, which held that the giving of such an instruction was error. This disposes of defendant's contention.

PROOF OF PRIOR CONVICTION

The State in this case was allowed to admit into evidence a certified abstract of a judgment from the Superior Court of San Francisco County, California, showing that the defendant had been convicted previously of the offense of second degree burglary in that state. All documents were properly authenticated and were accompanied by photographs and fingerprints. Defendant's fingerprints were taken in the courtroom and they were identical with fingerprints that accompanied the abstract. In a novel and meritless contention, the defendant claims this introduction of the certified abstract of judgment from the State of California denied him the right to confrontation. He alleges that he could not cross-examine the document nor the maker of it. He could not test the recollection or the conscience of the document and he could neither compel it nor its maker to stand face to face with the jury in order that they might look upon him and judge, by courtroom demeanor, whether the evidence surrounding the prior conviction was worthy of belief. Defendant has cited us no authority for his position. In State v. Pennye, 104 Ariz. 146, 449 P.2d 611 (1969) our Supreme Court held that Rule 44(g), Rules of Civil Procedure, 16 A.R.S., controls the admissibility of such records. The prgocedure used by the State has been previously approved and does not deny the defendant his right of cross-examination. State v. Boag, 104 Ariz. 362, 453 P.2d 508 (1969); State v. Jones, 103 Ariz. 580, 447 P.2d 554 (1968).

The supposed conflict between the Sixth Amendment, Right to Confrontation and the hearsay rules was the basis of two recent appeals in the United States Supreme Court. In California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), the court had under consideration § 1235 at the California Evidence Code which provided that 'evidence of a statement made by a witness is not made inadmissible by the hearsy rule if the statement is inconsistent with his testimony at the hearing * * *.' At the trial in the Green case, Porter, the chief witness for the prosecution, was 'markedly evasive and uncooperative' on the witness stand. At various points during Porter's direct examination, the prosecutor read excerpts from Porter's preliminary hearing testimony. This evidence The court further noted that merely because evidence is admitted in violation of a long established hearsay rule does not lead to the automatic conclusion that the confrontation rights have been denied. The particular vice which gave impetus to the confrontation claim was the practice of trying defendants on 'evidence' which consisted solely of ex parte affidavits or depositions secured by examining magistrates, therefore, denying defendant the opportunity to challenge his accuser in a vis-a -vis meeting before the trier of fact. The court held in the Green case that the right to confrontation is satisfied as long as the declarant is testifying as a witness and is subject to the full effect of cross-examination. If the declarant is present and testifying at trial, the out of court statements for all practical purposes redeems most of the lost protection. ¹

was admitted under § 1235 for the truth of the matter contained therein. The court, in approving the constitutionality of the California statute, first noted that while the Confrontation Clause and the hearsay rules are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay.

In Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), the court had under consideration the Georgia statute that provided:

'After the fact of conspiracy shall be proved,...