State v. Moore, 2258

CourtSupreme Court of Arizona
Citation495 P.2d 445,108 Ariz. 215
Docket NumberNo. 2258,2258
PartiesThe STATE of Arizona, Appellee, v. Robert Bruce MOORE, Jr., Appellant.
Decision Date07 April 1972
Gary K. Nelson, Atty. Gen. by William P. Dixon and Mary Z. Chandler, Asst. Attys. Gen., Phoenix, for appellee

Laber, Morrow & Lovallo by Paul W. Colarich, Jr., Tucson, for appellant.

CAMERON, Vice Chief Justice.

This is an appeal from a jury verdict and judgment of guilt and a sentence of not less than ten nor more than twenty years for the crime of robbery in violation of § 13--641 and § 13--643, subsec. B, A.R.S.

We are called upon to answer three questions on appeal:

1. Was it error for the trial court to allow the jury to hear evidence of another armed robbery and an attempted murder, involving the defendant and four other persons, occurring some 42 days after the commission of the crime for which defendant was on trial?

2. Did the trial court err in admitting a 'mug shot' of defendant taken some time before the crime for which he was on trial?

3. Did the prosecuting attorney so conduct himself as to deny the defendant a fair trial?

The facts necessary for a determination of this matter are as follows. On 8 April 1969, at approximately 8:00 a.m., defendant entered a convenience market in Tucson, Arizona, called 'The Party House.' Mrs. Uhde, a part-owner of the store, and Mrs. Torell, an employee, were in the store at that time. About five minutes later, Mrs. Uhde left the store. A few minutes later another man entered the store, and he and the defendant ordered Mrs. Torell to open the cash register and then to lie down on the floor. She stayed there until a customer arrived at the gas pumps outside, at which time she ran outside and asked the customer to call the police. A few minutes later the police arrived.

Mrs. Torell, after describing the persons involved in the robbery to the police officers, was taken to the police department where she was shown a group of approximately fifty photographs and asked if she could identify any of them as either of the men who robbed her. She picked out the photograph of the defendant. Detective Angeley then drove Mrs. Torell back to the Party House where he showed the same group of photographs to Mrs. Uhde. Mrs. Uhde also picked out the photograph of the defendant. On at least three other occasions Mrs. Torell was shown the photograph of defendant, and, on at least three other occasions, she picked out defendant's photo. Mrs. Torell also identified the defendant at the preliminary hearing.

The first trial of this matter ended in a mistrial. At the trial in question, counsel for the prosecution was allowed to introduce, over objections of the defendant, evidence of a robbery of a service station and attempted murder committed by the defendant and four other persons some 42 days after the crime for which defendant was being tried. During the eight days of the trial in question, the attorney for the State, Mr. Horton Weiss, interposed a continuous barrage of mostly improper objections to questions asked by the defendant's attorney. From the record before this court it is apparent that the objections were excessive in number, inartfully stated (if not ill-founded), and materially impeded the orderly course of the trial. Defendant raises several points on appeal, but we believe it necessary to consider only the three discussed below.


Defendant's first assignment of error concerns the admissibility of evidence of an armed robbery of an Enco service station and attempted murder of the station's attendant committed by defendant and four other persons some 42 days after the crime for which defendant was being tried.

The general rule in Arizona has long been:

'* * * in the prosecution of one accused of a particular offense, evidence showing or tending to show the commission[108 Ariz. 217]

by accused of another crime entirely distinct and independent of that for which he is on trial, even though it be a crime of the same class, is neither relevant nor admissible.' State v. Dorsey, 25 Ariz. 139, 143, 213 P. 1011, 1012 (1923)

See also, Greve v. State, 36 Ariz. 325, 285 P. 274 (1930) and State v. Parker, 106 Ariz. 54, 470 P.2d 461 (1970). This court, however, has recognized exceptions to this rule under which evidence of other crimes or misconduct is admissible to prove the crime charged. Such evidence is admissible when it tends to establish: (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes, so related to each other that proof of one tends to establish the others; and (5) the identity of the person charged with the commission of the crime on trial. Dorsey v. State, supra; State v. Little, 87 Ariz. 295, 350 P.2d 756 (1960); State v. Tisnado, 105 Ariz. 23, 458 P.2d 957 (1969).

From a review of the record, we can find no facts which would bring the robbery of the Enco station within the exception recognized by the Arizona cases. The State argues that the evidence of the Enco robbery shows a 'common scheme or plan' in that there were similarities in the two crimes. As examples of such similarities, the State points to the fact that the defendant and his participant in the Party House robbery were the only active participants in the Enco robbery, although there were allegedly five participants involved in the Enco robbery. In addition, the State points to the fact that a gun was used in each robbery, both robberies were timed to occur when the business was empty of customers, and both robberies were the 'hit and run' type with automobiles used as the escape vehicle in each. The State further contends that there was a 'plan' to rob the Enco service station. As to the 'common plan or scheme' exception, this court has stated:

'Similarities between the offenses at Hamilton's Corner and that near the Southside Tavern must be in those important aspects where normally there could be found differences. Evidence is not admissible except as it may show a tendency or likelihood of a plan common to all offenses to commit the crime. (citation omitted)' State v. Adkins, 94 Ariz. 263, 266, 267, 383 P.2d 180, 182, 183 (1963).

The areas of similarity pointed to by the State as evidence of a plan common to each robbery are not areas where dissimilarity would be expected. The use of guns and getaway vehicles and the occurrence of the robberies at times when there were no customers can hardly be relied upon to show a common plan or scheme. Furthermore, the allegation by the State that the Enco robbery was planned in no way leads to the conclusion that it was part of an overall plan which also included the Party House robbery, nor does the record lead to such a conclusion. See State v. Little, supra.

As to the admissibility of this evidence to prove identity, while it may be true that one of the participants in the Enco robbery also participated in the robbery of the Party House, the connection ends there. The robberies took place 42 days apart; there was nothing in the 'modus operandi' of the robberies that would identify the perpetrator of the Enco robbery as the perpetrator of the Party House robbery, nor were the circumstances surrounding the robberies sufficiently similar to prove identity. See Greve v. State, supra:

'* * * That a person has committed one crime has no direct tendency to show he has committed another similar crime, which had no connection with the first, and a person charged with one offense cannot be expected to come to court prepared to meet the charge of another. If the doing of one wrongful act shall be deemed evidence to prove the doing of another of a similar character, which has no connection with the first, issues would be multiplied indefinitely without previous notice to the defendant, and greatly to the distraction of the jury.

[108 Ariz. 218]

'The general rule is that when a man is put upon trial for one offense, he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and that, under ordinary circumstances, proof of his guilt of one or a score of other offenses in his lifetime is wholly excluded. (citations omitted).' Quen Guey v. State, 20 Ariz. 363, 368, 369, 181 P. 175, 177 (1919). See also Greve v. State, supra

We agree with the Oklahoma Court of Criminal Appeals:

'This Court stated in the case of Bunn v. State, 85 Okl.Cr. 14--21, 184 P.2d 621--624:

'There have been many instances of abuse of this exception to the general rule above noted. The abuse of this rule has caused the reversal of more cases on appeal to this court in recent years than that of any other one matter.'

'The court has repeatedly held that this exception and other exceptions to the general rule are to be used with the utmost caution and that the court must perceive a visual connection and in case any doubt is entertained, it is to be resolved in favor of defendant. The exception to the general rule is not secondary to the rule and before evidence of other crimes can be competent or admissible in a criminal trial to prove the specific crime charged on the grounds of common scheme or plan, the two or more crimes must be so clearly related that the proof of one tends to establish the other and should never be admitted when it tends to show that the accused has committed other crimes wholly independent of that for which he is on trial. " Hardin v. State, Okl.Cr., 462 P.2d 357, 359, 360 (1969).

There is no doubt that the evidence of the Enco robbery was highly prejudicial, especially due to the fact that the prosecution was allowed to go into the details of not only the robbery, but also the attempted murder. We believe it was error to admit the evidence of the other unrelated robbery.


The prosecution presented evidence, over objections, that after the robbery and before the arrest of the defendant, the two witnesses who...

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