State v. McNair, 6049

• Decision Date: 05 September 1984
• Docket Number: No. 6049,6049
• Citation: 687 P.2d 1230,141 Ariz. 475
• Parties: STATE of Arizona, Appellee, v. Fred Jamaal McNAIR, Jr., Appellant.
• Court: Arizona Supreme Court

Page 1230

687 P.2d 1230

141 Ariz. 475

STATE of Arizona, Appellee, v. Fred Jamaal McNAIR, Jr., Appellant.

No. 6049.

Supreme Court of Arizona In Banc.

Sept. 5, 1984.

Robert K. Corbin, Atty. Gen., William J. Schafer III and Jack Roberts, Asst. Attys. Gen., Phoenix, for appellee

George M. Sterling, Jr. and John M. Antieau, Phoenix, for appellant.

CAMERON, Justice.

Defendant, Fred Jamaal McNair, Jr., was convicted and adjudged guilty of armed robbery, a Class 2 felony, in violation of A.R.S. §§ 13-1901, -1902, -1904, 13-301, -302, -303, and 13-604. The trial judge made a finding that the defendant was on probation when the offense was committed and sentenced defendant to life without possibility of parole for twenty-five years pursuant to A.R.S. § 13-604.01. We have jurisdiction pursuant to A.R.S. §§ 13-4031, -4035, and Arizona Constitution, Article 6, § 5.

We must decide the following issues:

I. Was defendant properly convicted as an accomplice to armed robbery?

II. Did the trial court err in giving the jury a supplemental instruction on "culpable mental state"?

III. Was the trial court's refusal to give a theft instruction erroneous?

IV. Is A.R.S. § 13-604.01 unconstitutional?

V. Was the issue of whether defendant was on probation at the time of the offense properly decided?

VI. Was the failure to sever the trials of the two defendants in this case reversible error?

VII. Were defendant's prior burglary convictions properly admissible for impeachment purposes?

VIII. Was the prosecutor guilty of misconduct that constitutes reversible error?

The facts are the same as those of the companion case of State v. Turner, 140 Ariz. ---, 687 P.2d 1225 (1984). During the late evening of 1 April 1983 or early morning of 2 April 1983 defendant Fred McNair and a third party, Wilford Strong, met co-defendant Nathaniel Turner in a club in south Phoenix. About 1 a.m. they drove to a U-Totem store to buy liquor, but due to the late hour they were unsuccessful. Defendant was driving, Turner was in the front seat, and Strong was in the back seat. After driving around for approximately two hours, they pulled into a Union 76 gas station located at Grant Street and Interstate 17 in Phoenix. They drove to the self-service island, remained there a few minutes, and then drove to the full-service island. The gas-station attendant, Alvy Robins, walked out to the car. Defendant asked Robins for some power steering fluid. Robins stated that he did not have any power steering fluid, but that he did have transmission fluid, which "would While defendant was pouring the transmission fluid into the car, he asked Robins for some gasoline. Robins inserted the nozzle into the neck of the gas tank and set the handle so that it would pump automatically. Defendant then handed Robins the half-empty can of transmission fluid and indicated that he would not be using any more of the fluid. The jack was removed from the car's hood and it was replaced in the trunk by defendant. Robins testified that he observed several cans of transmission fluid in the trunk. Defendant then changed his mind and decided he wanted the half-empty can of transmission fluid. Robins turned around to retrieve the can from the pump island where he had placed it. As he turned back around Turner struck Robins in the face with the jack, and Robins fell to the ground. At this point either defendant or Turner demanded money from Robins, who took the only available money out of his pocket and handed it to the men, along with the office key. The two men returned to the car and drove away, heading east. During this time, Strong did not leave the car.

                work just as well."   Robins walked back to the station building to obtain a can of transmission fluid.  Defendant propped the hood open with a jack that he kept in the trunk of the car.  Robins returned with the fluid and handed the can and a spout to defendant.  Turner was standing near the front of the car
                

Although Robins' face was bleeding and his left eye was swollen, he was able to observe the license plate number of the car, and wrote this down on a credit card invoice. Robins called Crime Stop and gave a description of the vehicle, the license plate number, and a description of the three men occupying the car. Officer Lum of the Phoenix Police Department received this information in a "hot call" over his radio. At the same time he saw the defendant's vehicle coming towards him. He stopped the vehicle and returned it and its occupants to the gas station, where Robins identified the defendant as well as the other occupants of the car. Defendant testified that he had some of the victim's blood on his arm.

Defendant and Turner were tried together for armed robbery. Defendant testified twice. Originally, he testified that he never saw Turner leave the car after the car had pulled into the gas station. Upon retestifying, defendant stated that he did, indeed, see Turner outside the car. Defendant further testified that he did not see Turner with the jack in his hands and did not see Turner strike Robins.

Defendant was convicted and adjudged guilty of armed robbery, and sentenced pursuant to A.R.S. § 13-604.01. Defendant appeals the judgment of guilt and his sentence.

ACCOMPLICE CONVICTION

Defendant first alleges that he was improperly convicted as an accomplice to armed robbery because he neither intended nor aided and abetted the commission of the crime. He argues that he was merely present at the scene of the crime and drove away because he was concerned about his own probation status and not because of any desire to aid Turner or facilitate Turner's escape. We do not agree.

There is no question that a robbery was committed, A.R.S. § 13-1902(A), and our statute states that:

A person commits armed robbery if, in the course of committing robbery as defined in § 13-1902, such person or an accomplice:

1. Is armed with a deadly weapon or a simulated deadly weapon; or

2. Uses or threatens to use a deadly weapon or dangerous instrument or a simulated deadly weapon.

A.R.S. § 13-1904(A) (emphasis added). We note that § 13-1904(A) uses the phrase "or an accomplice." An individual is guilty of armed robbery if his accomplice "uses or threatens to use a deadly weapon or dangerous instrument" during a robbery even if defendant himself did not come in contact with the weapon. See e.g., State v. Church, 109 Ariz. 39, 44, 504 P.2d 940, 945 Our legislature has stated that an accomplice is a person

(1973); State v. Bettis, 109 Ariz. 579, 580, 514 P.2d 712, 713 (1973). In the instant case, if Turner was defendant's accomplice and used a deadly weapon or dangerous instrument during commission of the robbery, defendant is also guilty of armed robbery.

who with the intent to promote or facilitate the commission of an offense:

1. Solicits or commands another person to commit the offense; or

2. Aids, counsels, agrees to aid or attempts to aid another person in planning or committing the offense.

3. Provides means or opportunity to another person to commit the offense.

A.R.S. § 13-301. Under this definition, defendant could well be an accomplice of Turner. This does not mean, however, that Turner is not also an accomplice of defendant for the purposes of A.R.S. § 13-1904(A). As the Kentucky Supreme Court has noted:

The words "accomplice," "accessory," and "aider and abettor" are often used indiscriminately and interchangeably by courts and textbook writers on criminal law. But an "accomplice" may be one of the principal actors, or an aider and abettor or an accessory before the fact. The word includes in its meaning all persons who participate in the commission of a crime, whether they so participate as principals, aider and abettors, or accessories before the fact.

Levering v. Commonwealth, 132 Ky. 666, 677, 117 S.W. 253, 257 (1909) (citations omitted). A.R.S. § 13-301 defines accomplice in the traditional manner as one who, though not the main actor, is so connected to the offense that he could be convicted as either a principal or as an accessory before the fact. See People v. Sweeney, 213 N.Y. 37, 46, 106 N.E. 913, 917 (1914). This statute, A.R.S. § 13-301, however, must be read with the statute on criminal accountability which states in pertinent part:

A. A person is criminally accountable for the conduct of another if:

1. The person is made accountable for such conduct by the statute defining the offense; or

2. Acting with the culpable mental state sufficient for the commission of the offense, such person causes another person, whether or not such other person is capable of forming the culpable mental state, to engage in such conduct; or

3. The person is an accomplice of such other person in the commission of an offense.

A.R.S. § 13-303. When §§ 13-301 and -303 are read together, it appears that an accomplice may be either the principal or an accessory to the crime. We long ago stated:

[I]t is no ground for the reversal of a judgment because we are unable to ascertain from the evidence which of the two defendants actively committed the offense and which of the two defendants was the accomplice in fact--the law makes no distinction.

Cline v. State, 21 Ariz. 554, 556, 192 P. 1071, 1071 (1920). Simply stated, "an accomplice is one who knowingly and with criminal intent participates, associates, or concurs with another in the commission of a crime." State v. Shields, 81 S.D. 184, 186, 132 N.W.2d 384, 385 (1965). Turner was, therefore, an accomplice of the defendant.

Defendant and Turner arrived at the station together, with defendant driving. Defendant successfully distracted Robins, allowing Turner the opportunity to hit Robins with the jack. When Turner hit Robins defendant was standing close enough to get blood on his arm from Robins' wound. Defendant drove the car that transported Turner away from the crime scene. The jury could properly infer from these and other facts that the defendant planned and intended to aid and...