State v. Olivas

• Court: Arizona Court of Appeals
• Writing for the Court: MOLLOY
• Citation: State v. Olivas, 458 P.2d 379, 10 Ariz.App. 285 (Ariz. App. 1969)
• Decision Date: 08 September 1969
• Docket Number: CA-CR,No. 2,2
• Parties: The STATE of Arizona, Appellee, v. Frank Pallanes OLIVAS an Edward Cruz Olivas, Appellants. 172.

Page 379

458 P.2d 379

10 Ariz.App. 285

The STATE of Arizona, Appellee, v. Frank Pallanes OLIVAS an Edward Cruz Olivas, Appellants.

No. 2 CA-CR 172.

Court of Appeals of Arizona.

Sept. 8, 1969.

Gary K. Nelson, Atty. Gen., Carl Waag, Asst. Atty. Gen., for appellee.

R. Lamar Couser, Tucson, for appellant Frank Pallanes Olivas.

William H. Tinney, Jr., Tucson, for appellant Edward Cruz Olivas.

MOLLOY, Chief Judge.

The two appellants and another were jointly tried and found guilty of first degree burglary. There was testimony at the trial that two of the codefendants (including one of the appellants) made incriminating statements after arrest, and the most important question raised is whether the other codefendant-appellant against whom no such testimony was offered was entitled to a separate trial under the principles of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

The basic facts are as follows. At about 1:40 a.m., on the morning of April 18, 1968, the police were summoned by a neighbor to the vicinity of the Village Inn pizza parlor on 22d Street in the City of Tucson. observing someone inside the darkened building closing a door that was slightly ajar, the officers ordered all persons within to come out. After a short period, the appellant Edward Olivas and another, George Leeth, emerged from the building. Upon entering the restaurant, the police officers found a claw hammer, screwdrivers, a flashlight and a file lying at various places near a cigarette machine, which had apparently been moved away from a wall, and a jukebox, the glass record-holding portion of which had been broken open. Further investigation revealed a loose stack of phonograph records away from the jukebox, a pile of coins on the floor, and a bent chisel and woodshavings near a pinball machine. The officers' search of the premises also revealed the person of the appellant, Frank Olivas, who was found sitting under a table. Frank Olivas was the regular manager of the Village Inn, but the preceding day had been his day off, as well as payday, and he had spent the day drinking and socializing at various places around Tucson, including the Village Inn, where he had eaten a pizza just prior to midnight. The acting manager of the Village Inn, on the night and early morning in question, had closed the establishment at 1:25 a.m., at which time everything was in order and no tools were in the restaurant area. Other facts will be referred to in connection with the various contentions urged on appeal.

APPEAL OF EDWARD OLIVAS

After the appellants and George Leeth, who are all cousins, had been jointly charged with the crime of burglary, Edward Olivas moved for a separate trial, alleging that Frank Olivas and George Leeth had made incriminating post-arrest statements which would probably be admissible against them at trial, and that no such statement would be admissible against Edward Olivas. The State resisted the motion, and the motion was denied, both prior to trial and at the trial, when it was renewed. At the trial, the officer who interrogated George Leeth after his arrest testified to the substance of his conversation with Leeth, as follows:

'Q To the best of your recollection what was the conversation that you had with George Leeth at this time?

'A I asked him to tell me about the events earlier in the morning and what had occurred at the Village Inn Pizza Parlor, and he stated that he had been driving around in an automobile and that they parked the automobile at the rear and side of the Village Inn Pizza Parlor and waited until it was closed; that Frank Olivas had a key to the back door of the Village Inn Pizza Parlor; that they waited until everybody left and had a key to open the back door; that they went inside; that Frank found a box of tools and they began opening up the machinery inside the pizza parlor.'

The same officer gave the following testimony with respect to his questioning of Frank Olivas:

'Q To the best of your recollection what was the conversation you had at this time?

'A Frank stated that they had been driving around drinking beer and ran out of beer and decided to get some more from the pizza parlor. They parked their vehicle to the rear of the pizza parlor and to the side of it and waited in the car until everybody had left. That he had been--he was the manager of the pizza parlor and had a key to it. They went to the back door, opened it up, got the tools out and began opening up the machinery. First they went to get beer and they needed money, they ran out of money, and were getting money out of the machines.'

The name of Edward Olivas was not mentioned in any of this officer's testimony, although previous testimony established his presence with George Leeth and Frank Olivas at the time, and he was not excluded from the term 'they' by any other testimony. During the trial, and in instructions to the jury at the conclusion of the case, the trial judge gave clear and explicit instructions that the admissions of one defendant could not be given probative effect as to the other defendants. ¹

All three of the defendants testified in their own behalf. George Leeth and Frank Olivas denied making any admissions to the interrogating officer. All three defendants testified that they were attempting to fix their automobile in the parking lot adjacent to the Village Inn when they became alarmed by a neighbor with a dog and, using Frank Olivas' key, went into the Village Inn to hide. Edward Olivas, testifying after his counsel indicated that the decision to take the stand was influenced by the admission of the codefendants' statements, stated that he became angry while playing a pinball machine inside the restaurant and kicked a stool which broke the glass portion of the jukebox. There was no satisfactory explanation offered by anyone concerning the presence and location of the tools, money, woodshavings, et cetera, inside the building.

Counsel for Edward Olivas contends that severance should have been granted, that the testimony with regard to the statements made by George Leeth and Frank Olivas was prejudicial to him. The contentions are based upon the Bruton case, Supra, in which the United States Supreme Court overruled Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), and reversed the conviction of one who was implicated by the oral confession of a codefendant. The codefendant in Bruton did not take the stand, and was therefore not subject to cross-examination. The Supreme Court, describing the codefendant's statement as 'powerfully incriminating' (88 S.Ct. 1628), reevaluated and discarded the Delli Paoli premise that a jury could follow instructions by the trial judge to ignore a codefendant's confession in ascertaining an implicated defendant's guilt. The Bruton court held that the implicated defendant was denied his Sixth Amendment right to confront his codefendant. Counsel for Edward Olivas points out, in this connection, that, although both George Leeth and Frank Olivas did take the stand and admitted having a conversation with the interrogating officer, both denied making the incriminating statements attributed to them by the officer, and argues that, under those circumstances, he was effectively denied the right of cross-examination.

Bruton has already spawned a sizable progeny, and a comparison of a number of the federal and state decisions considering its application reflects some doubt as to its scope. Most courts, however, have arrived at a conclusion that, to require reversal, there must have been some reasonable possibility of prejudice to the nonconfessing defendant in the admission of an implicating confession of a codefendant. Our own Supreme Court arrived at such a conclusion in Olivas v. Eyman, 104 Ariz. 163, 449 P.2d 942 (1969), where under the facts, the admission of a codefendant's implicating statement was held to be harmless Bruton error 'beyond a reasonable doubt.' (See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). This court noted the necessity of prejudice to the defendant in the order enlarging our opinion and denying motion for rehearing in State v. Hunt, 8 Ariz.App. 514, 522, 447 P.2d 896, 904 (1968).

The requirement of possible prejudice was subsequently made crystal-clear by the United States Supreme Court in Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). In Harrington, the murder conviction of one who had himself admitted that he was present at the scene of the crime was affirmed notwithstanding the admission into evidence of the implicating statements of two codefendants who did not testify The court stated that '* * * on these special facts the lack of opportunity to cross-examine Cooper and Bosby constituted harmless error under the rule of Chapman.' 89 S.Ct. at 1728 and See State v. Salerno, 104 Ariz. 601, 457 P.2d 278 (released July 11, 1969).

Applying Bruton as qualified by Harrington, we are unable to find in this record any appreciable possibility of prejudice to Edward Olivas in his joint trial with Frank Olivas and George Leeth and in the admission of the latters' oral statements through the police officer. Although the word 'they' in these statements leaves room for an inclusion of Edward, the word bears ready reference also to only Frank Olivas and George Leeth. The statements cannot by any stretch of the imagaination be said to be 'powerfully incriminating' as to Edward Olivas. They are essentially statements of the declarant's own personal guilt, without any tendency whatever to discharge any of the declarant's guilt at the expense of Edward Olivas. The right of confrontation which is the basis of the Bruton rule is in essence the right to confront an accuser. These statements contain nothing specifically accusing with respect to Edward Olivas.

Without these statements, the case against Edward is devastatingly convincing. Edward Olivas was...