State v. McGriff

• Decision Date: 22 May 1968
• Docket Number: No. 1,CA-CR,1
• Citation: 441 P.2d 264,7 Ariz.App. 498
• Parties: STATE of Arizona, Appellee, v. Therman McGRIFF, Appellant. 140.
• Court: Arizona Court of Appeals

Page 264

441 P.2d 264

7 Ariz.App. 498

STATE of Arizona, Appellee, v. Therman McGRIFF, Appellant.

No. 1 CA-CR 140.

Court of Appeals of Arizona.

May 22, 1968.

Darrell F. Smith, Atty. Gen., Carl Waag, Asst. Atty. Gen., for appellee

Craig, Contreras & Bernstein, by Irwin L. Bernstein, Phoenix, for appellant.

DONOFRIO, Judge.

This is an appeal by Therman McGriff from a criminal conviction for breaking into a coin-operated contrivance as prohibited by A.R.S. § 13-676. Defendant was charged with this crime, and by addendum to the information, the County Attorney alleged that defendant had a prior conviction of two counts of burglary by mechanical means, felonies. This allegation was made to seek the increased punishment provided for by A.R.S. § 13-1649. Defendant received a sentence of not less than five years nor more than ten years in the state prison.

The facts pertinent to this appeal are as follows: On February 12, 1966, some time between 10:00 p.m. and 6:15 the following morning a telephone located at 43rd Avenue and West McDowell Road had been broken into and looted. The telephone was found broken apart and the inner parts scattered around on the ground. Approximately $43.00 was taken. The key piece of evidence was a small yellow plastic part from the inside workings of the telephone upon which was found defendant's palm print.

At the trial defendant testified that on the night of February 12, 1966 he was driving on West McDowell Road had car trouble, and went in search of a telephone so he might obtain help. He saw the telephone in question, which he asserts had already been torn apart. He testified he could not recall whether or not he picked up anything at the scene. He admitted he had a prior conviction of Burglary by Mechanical Means, which was the title of the offense alleged in the addendum, and stated that because of his record he did not report to the police that a telephone had been broken into. The officers testified at the trial that he denied that he had been at the scene of the crime. There was conflicting testimony as to whether or not the officers had told him of the palm print.

Defendant bases his appeal on three grounds: First, that the circumstantial evidence was insufficient to support conviction because there was a reasonable hypothesis of innocence; second, that conviction under A.R.S. § 13-676 for the first time precludes any increased penalty under A.R.S. § 13-1649; and third, that the trial court erred in not granting a hearing out of the presence of the jury on the voluntariness of certain statements made by defendant.

SUFFICIENCY OF EVIDENCE

The most significant piece of evidence in the State's case is the palm print on the plastic part of the telephone works. Defendant contends that the print, standing alone, cannot be sufficient to convict of a crime. Further, it is urged that in Arizona if in a circumstantial evidence case there In support of his position, defendant cites many cases from other jurisdictions where the only evidence against a defendant was fingerprints taken from the scene of the crime. In these cases the courts use the language that merely because the fingerprints are found at the scene, the circumstances do not exclude every other reasonable hypothesis except that of the guilt of the accused. The prints in these cases were found in public places where the defendants may have been present as customers or employees and may have innocently left the prints where found. It is to be noted in the instant case, however, that the prints were found not in a place exposed to the public, but in a place concealed until after destruction of the telephone. In addition, the circumstances are much stronger here because the palm print was found on the small object and the jury may well have determined it to be highly unlikely that such a small piece of plastic would bear the palm print of a person who innocently picked it up. They may have felt that a palm print would be more likely to be left by a person hitting and tearing up the telephone.

exists a reasonable hypothesis of innocence, then the Court must direct a verdict for the defendant.

Defendant's contention is that the evidence does support a conclusion of innocence if his testimony is believed; i.e., that he came along after the telephone was looted and possibly picked up the piece of plastic at the time. Defendant states that since the evidence could be so interpreted, the law in Arizona dictates that no conviction can be had. He relies on the case of State v. Andrade, 83 Ariz. 356, 321 P.2d 1021 (1958), which stated:

'To warrant a conviction on circumstantial evidence alone, the evidence must be consistent with guilt and inconsistent with every reasonable hypothesis of innocence. * * *' 83 Ariz. at 359, 321 P.2d at 1022.

The Supreme Court of Arizona has recently explained the doctrine of reasonable hypothesis of innocence in the case of State v. Green, 103 Ariz. 211, 439 P.2d 483 (decided April 3, 1968). We feel that the view expressed in that case, when applied to the instant case, is determinative of the issue created by defendant. The Court said:

'Defendant contends that the verdict of guilty against him was based solely on circumstantial evidence and was not inconsistent with every reasonable hypothesis of innocence. In addition, he contends that the verdict was contrary to the weight of the evidence. The record supports defendant's contention that the evidence against him was entirely circumstantial. He argues that if after an examination of all the reasonable inferences that can be drawn from the evidence an inference of innocence exists then his motion for a directed verdict should have been granted. We do not agree. We have consistently held in the past that because of the dangers that lurk in a conviction based solely on circumstantial evidence an instruction must be given to the jury that 'the evidence must not only be consistent with guilt but inconsistent with every reasonable hypothesis of innocence.' State v. Bearden, 99 Ariz. 1, 3, 405 P.2d 885; State v. Tigue, 95 Ariz. 45, 47, 386 P.2d 402. However, In the Bearden case we noted that it was the function of the jury to decide what reasonable inferences could be drawn from the evidence. State v. Bearden, 99 Ariz. at 3, 405 P.2d at 886. * * *' (Emphasis supplied.)

The instant case went to the jury which had been properly instructed as to the 'reasonable hypothesis of innocence' doctrine. It would not have been proper to have directed a verdict for defendant. It was the function of the jury to decide what reasonable inferences could be drawn from the evidence. The question of any reasonable hypothesis of innocence was resolved against defendant by the jury and will not be disturbed on appeal.

VOLUNTARINESS OF STATEMENTS

Defendant urges that the trial court erred in denying his request for a hearing on the voluntariness of certain statements made by him, citing the requirements of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205; State v. Owen, 96 Ariz. 274, 394 P.2d 206 (1964); and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966).

The court assigned as a basis for its refusal the fact that the defendant on the stand had denied that he was ever interrogated, thus doing away with the need of a hearing. State v. Armstrong, 103 Ariz. 280, 440 P.2d 307 (decided by Supreme Court, May 16, 1968, opinion on rehearing). The transcript is not clear as to whether defendant's denial of the interrogation referred just to a particular subject matter in the conversation or the entire interrogation itself. We set forth the testimony of defendant on this point:

'A The only thing they ever asked me--well, when they took me to the, in the interrogation room, they just said, they asked me something about telephones being burglarized. And then, he said, 'Wait a minute. Before we say anything else, let me advise you of your Constitutional rights.'

'Q But, you don't remember them telling you they had prints on you?

'A No, they talked to me on the way down, but they were talking about different things. And one of the officers, he tried to get smart. I don't know, he made some kind of wisecrack about when we got to the police station and they fingerprinted me, Officer Garcia, I think is his name, the one that was here yesterday.

'Q You don't recall Officer Stidman asking you, 'How do you explain that your fingerprints were on the inside of the 'phone?' and explained the way the identification worked on fingerprints?

'A No, he didn't even interrogate me.'

At a later point defendant testified:

'Q Did you make any explanation to the officers how your prints could have gotten on there?

'A They never did interrogate me.'

If defendant was not referring to the entire conversation, then the court was in error in its assumption that defendant denied ever being interrogated at all. We do not feel it necessary to pass upon this point as there is, aside from this, a valid basis for denying the request for a hearing on voluntariness.

After the prosecution rested, the only evidence put on by the defense was the testimony of the defendant himself. It was the last answer of defendant's testimony on direct in his case in chief that introduced the question of the interrogation involved. We shall set forth in sequence the testimony at this point which shows that after introducing the subject matter defendant answered questions pertaining to the subject without ever making any objection. Neither did he request a hearing as to voluntariness. Defendant testified:

'A Well, when the police officers had came to my grandfather's house looking for me and we went to the police station, well, they had told my grandfather they wanted me to register as an ex-convict. And I went and registered. And then, they took me to the interrogation room and asked me about some telephones on McDowell. (Emphasis supplied.)

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