State v. Norgard

• Decision Date: 05 July 1967
• Docket Number: CA-CR
• Citation: 6 Ariz.App. 36,429 P.2d 670
• Parties: The STATE of Arizona, Appellee, v. Robert Allen NORGARD, Appellant. 286.
• Court: Arizona Court of Appeals

Page 670

429 P.2d 670

6 Ariz.App. 36

The STATE of Arizona, Appellee, v. Robert Allen NORGARD, Appellant.

2 CA-CR 86.

Court of Appeals of Arizona.

July 5, 1967.

Rehearing Denied Aug. 2, 1967.

Review Denied Oct. 3, 1967.

Darrell F. Smith, Atty. Gen., Carl Waag, Asst. Atty. Gen., Phoenix, William J. Schafer, III, County Atty., Pima County, Tucson, for appellee.

Ralph E. Seefeldt, Tucson, for appellant.

MOLLOY, Judge.

This appeal presents questions relative to proof of prior conviction under our statute providing for increased punishment in the case of convicted defendants who are charged and found guilty of having been previously convicted of certain criminal offenses. A.R.S. § 13--1649.

The defendant in this case was convicted by a jury of the crime of attempted burglary. After the jury had brought in a verdict of guilty on the principal charge, the trial was reconvened in pursuance of Rule 291, Rules of Criminal Procedure, 17 A.R.S., to determine whether the defendant had been previously convicted on July 6, 1954, of the crime of obstructing a public officer.

During this subsequent trial, three matters occurred which are alleged here to be reversible error. The first two concern the admission of evidence which the defendant contends indicates that he was guilty of criminal conduct other than the crime of which he was convicted in the first part of the trial of this action and other than the crime charged under the prior conviction statute.

In seeking to have admitted, for identification purposes, fingerprints taken of the defendant on May 25, 1966, the detective who obtained these prints from the defendant was placed on the stand and the transcript indicates the following occurred:

'Q Did you have occasion to investigate a burglary that occurred on or about the 21st day of May, 1966, of the Western Auto store on South Sixth Avenue?

'A Yes, sir, I did.

'Q Did you have occasion, As a result of this investigation to make the arrest of one Robert Allen Norgard?

'A Yes, sir, I did.

'Q On what date was he arrested?

'A On the 25th of May, 1966.

'Q On the 25th of May, 1966?

'A That is correct.

'Q Where was he arrested?

'A At the City Jail annex, or 'farm' as it is called.

'Q Was he in custody at that time?

'A Yes, he was.

'Q And you arrested him on what charge?

'A Burglary, and Joy riding.

'Q After he was placed under arrest at the City Jail, what did you do with him? Where did you take him?

'A A regular patrol car was called for to go down to jail and pick up Mr. Norgard and bring him from the City Farm Jail down to the downtown jail to be re-booked.

'Q Was he booked at that time?

'A To my knowledge, yes.' (Emphasis added)

This detective further testified that in the normal procedure of 'booking' an arrested person, a 'record sheet,' was prepared and that a certain record, containing the fingerprints of the defendant, was the one prepared on this occasion. This booking record was subsequently admitted in evidence and there is no contention made here of insufficient authentication.

In order to relate these fingerprints to a prior conviction, the State introduced into evidence, over the defendant's objection, certified records of the Arizona State Prison. The certificate of the secretary of the Arizona State Prison states, Inter alia:

'* * * that the

'(1) Photograph, (2) Fingerprint record and (3) Commitment attached hereto are copies of the original records of ROBERT ALLEN NORGARD, ARIZONA STATE PRISON NUMBERS, 17917, & 23167 a person heretofore committed to said penal institution and who served a term of imprisonment therein; that I have compared the foregoing and attached copies with their respective originals now on file in my office and each thereof contains, and is, a full, true and correct transcript and copy from its said original.'

The signature of the secretary of the Arizona State Prison is authenticated by certificates of T. J. Mahoney, Presiding Judge of the Superior Court, Pinal County, and from Alma Jennings, Clerk of the Superior Court in Pinal County.

Attached to the certificate of the secretary of the Arizona State Prison is a copy of a 'judgment and commitment' showing a conviction as to the charge of 'Obstructing a Public Officer' as to 'Robert A. Norgard,' rendered in the Superior Court of Pima County on July 12, 1954, and which judgment and commitment imposed a sentence of not less than three nor more than five years to date from July 12, 1954. Also attached to the certificate were fingerprint impressions indicated by the form to have been made on November 11, 1961, under prison No. 23167 as to a 'Robert A. Norgard' and also attached to the certificate is a photograph of an individual, in which photograph there is a clear portrayal of a sign, placed under the face of the individual photographed, bearing the inscription: 'Arizona Prison, Nov. 11, 1961, 23167.' The fingerprints attached to this certificate were identified by expert testimony as being the same as the prints taken on May 25, 1966, from the defendant.

A motion for mistrial because of the admission of the evidence above described was made and denied at the conclusion of the case. The sentence imposed by the court below was imprisonment for four and one-half to five years, a sentence in excess of the maximum sentence permitted for a first conviction of the offense charged in the information--attempted burglary, second degree, A.R.S. §§ 13--302, 13--108 and 13--110--but within the limit permitted if the prior conviction was properly established. A.R.S. § 13--1650.

It is well-established law that:

'* * * on a prosecution for a particular crime, evidence which shows or tends to show that accused has committed another crime wholly independent of, and unconnected with, that for which he is on trial, even though it is a crime of the same sort, is irrelevant and inadmissible.'

22A C.J.S. Criminal Law § 682, at p. 730.

Among the Arizona authority establishing this general rule to be the law of this state are: Quen Guey v. State, 20 Ariz. 363, 181 P. 175 (1919); State v. Singleton, 66 Ariz. 49, 182 P.2d 920 (1947); State v. Martinez, 67 Ariz. 389, 198 P.2d 115 (1948); State v. Thomas, 71 Ariz. 423, 229 P.2d 246 (1951); and, State v. Gallagher, 97 Ariz. 1, 396 P.2d 241 (1964). In applying this rule to the subject action, we believe it is important to remember the nature of the trial being conducted at the time the questioned evidence was admitted. This trial was not to prove the defendant's guilt or innocence of the previous crime, but to prove whether there had been a Conviction regularly had and whether the defendant was the person so convicted. State v. Pennye, Ariz., 427 P.2d 525 (1967). The very essence of the Factum probandum directed the proof towards a Record of a conviction and evidence tending to show Identity with that Record.

That other offenses are established in the process of proving a fact in issue, is not necessarily erroneous. The rule of exclusion quoted above is directed at other offenses '* * * wholly independent of, and unconnected with, that for which he is on trial * * *.' Statements of similar import can be found in the decisions of our Supreme Court applying the rule: Crowell v. State, 15 Ariz. 66, 71, 136 P. 279, 281 (1913), ("* * * evidence of a distinct, substantive offense * * *"); Quen Guey v. State, 20 Ariz. 363, 368, 181 P. 175, 177 (1919), ('the evidence concerning the prior assault sheds no light upon the transaction charged in the information * * *'); State v. Martinez, 67 Ariz. 389, 392, 198 P.2d 115, 116 (1948), ('* * * the commission by accused of other offenses entirely distinct and independent of that for which he is on trial * * *'); and, State v. Thomas, 71 Ariz. 423, 425, 229 P.2d 246 (1951), (which quotes Inter alia, the quotations from State v. Martinez and Crowell v. State, supra).

But when the other offenses are not distinct and separate from the Factum probandum, but are necessarily interrelated thereto, the exclusionary rule is not applicable:

'The trier of fact is entitled to have the disputed occurrence fixed in a background of the surrounding and accompanying events. These events shed light on the main issue and are received though they incidentally show that the accused has committed another crime.' Udall, Arizona Law of Evidence § 115, pp. 229--30.

Leading cases in this jurisdiction establishing the inapplicability of the subject exclusionary rule to evidence of other offenses which 'complete the story' are: State v. Hardin, 99 Ariz. 56, 59, 406 P.2d 406 (1965); State v. George, 95 Ariz. 366, 369--370, 390 P.2d 899, 901--902 (1964); and State v. Villavicencio, 95 Ariz. 199, 201, 388 P.2d 245, 246 (1964). From this latter case we quote:

'Evidence of other criminal acts is admissible when so blended or connected with the crime of which defendant is accused that proof of one incidentally involves the other or explains the circumstances of the crime.'

95 Ariz. at 201, 388 P.2d at 246.

In this action, it is, of course, very apparent that were a trial being conducted as to whether the defendant was guilty or innocent of the Crime of obstructing a public officer in 1954, there would be no relationship whatsoever between the charge and the proof of 'other offenses' as to which the defendant complains here. However, in view of the special nature of the judicial inquiry in progress, we can see a relationship between the proof adduced and the facts at issue, to wit, the record of a prior conviction and the identity of the person, the subject of such record.

We take judicial notice that in the records in the superior court of the State of Arizona in criminal proceedings there is usually no identifying information, such as a picture or fingerprints, made an integral part of a conviction record. State v. Superior Court In and For County of Pima, 4 Ariz.App. 562, 422 P.2d 393 (1967). Other than such evidence as arises from identity of names, the official record of the court is...