State v. Noble, 4924-PR
Decision Date | 29 May 1980 |
Docket Number | No. 4924-PR,4924-PR |
Citation | 126 Ariz. 41,612 P.2d 497 |
Parties | The STATE of Arizona, Appellee, v. Andrew Milo NOBLE, Appellant. |
Court | Arizona Supreme Court |
Robert K. Corbin, Atty. Gen. by William J. Schafer III and Greg A. McCarthy, Asst. Attys. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender by Paul J. Prato, Deputy Public Defender, Phoenix, for appellant.
We granted defendant's petition for review of a memorandum decision of the Court of Appeals, Division One, Department B, in order to consider two questions. We have jurisdiction pursuant to A.R.S. § 12-120.24 and Rule 31.19, Arizona Rules of Criminal Procedure, 17 A.R.S.
1. Did the defendant, by admitting on direct examination to two prior convictions, waive the right to question on appeal the trial court's ruling denying his pretrial motion to exclude the prior convictions?
2. Did the trial court err in finding that the probative value of the prior convictions outweighed their prejudicial effects?
The facts necessary for a determination of this matter on appeal are as follows. In 1965, defendant was convicted of two counts of perjury. See State v. Noble, 2 Ariz.App. 532, 410 P.2d 489 (1966). Prior to trial in the instant case, the defendant moved to preclude, for impeachment purposes the prior felony convictions. The court denied the defendant's motion stating:
At trial, the defendant took the stand, and on direct examination admitted the previous felony convictions for perjury. He was convicted and sentenced to serve a term of not less than ten nor more than twelve years in the state prison. He appealed and the Court of Appeals, in a memorandum decision, held that because he had taken the stand and admitted the previous convictions, he had waived the right to question the denial of his motion on appeal.
The Court of Appeals, relying upon a prior decision of that court, State v. Ellerson, 125 Ariz. 254, 609 P.2d 69 (No. 1 CA-CR 1621, 1980), held that when the defendant took the stand and "drew the sting," by admitting the prior felony convictions, he waived the right to object to the previous ruling of the trial court denying his motion to preclude the use of the prior felony convictions for impeachment purposes.
After the instant decision of the Court of Appeals, this court, in State v. Ellerson, 125 Ariz. 249, 609 P.2d 64 (No. 4839-PR, filed 27 February 1980), held that the defendant did not waive the right to object to the ruling of the trial court by "drawing the sting" during the time of trial. In doing so, we cited a case from the United States Court of Appeals for the Ninth Circuit where a defendant, because of an adverse ruling on his motion to exclude impeachment by prior conviction, elected not to testify. The Ninth Circuit stated:
United States v. Cook, 608 F.2d 1175 (9th Cir. 1979).
We then stated in Ellerson, supra:
At ----, 609 P.2d at 66.
We believe that Ellerson, supra, is dispositive of this case, and we will proceed to the merits of the denial of the motion by the trial judge.
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