State v. Perkins

• Decision Date: 17 July 1984
• Docket Number: No. 5990,5990
• Citation: 141 Ariz. 278,686 P.2d 1248
• Parties: STATE of Arizona, Appellee, v. Lee Roy PERKINS, Appellant.
• Court: Arizona Supreme Court

Page 1248

686 P.2d 1248

141 Ariz. 278

STATE of Arizona, Appellee, v. Lee Roy PERKINS, Appellant.

No. 5990.

Supreme Court of Arizona, In Banc.

July 17, 1984.

Robert K. Corbin, Atty. Gen. by William J. Schafer III, and Gary A. Fadell, Asst. Attys. Gen., Phoenix, for appellee.

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

HAYS, Justice.

Appellant, Lee Roy Perkins, was convicted of nine counts of armed robbery, A.R.S. § 13-1904, and one count of aggravated assault, A.R.S. § 13-1204. Because appellant was on parole when he committed the instant offenses, he was given a life imprisonment sentence for each count. See A.R.S. § 13-604.01. The sentence for count 1 (armed robbery) was ordered to run consecutively to the unexpired portion of the sentence from which appellant had been paroled. The sentences for counts 2 through 8 were ordered to run concurrently with the sentence for count 1. The sentence for count 9 was ordered to run consecutively to the sentence for counts 1 through 8. Finally, the sentence for count 10 (aggravated assault) was ordered to run consecutively to count 9. The case was automatically appealed to this court. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), A.R.S. § 13-4031, and A.R.S. § 13-4035. The judgments of conviction are affirmed. The sentences are set aside and the case is remanded to the trial court for resentencing.

Six main issues confront us:

1. whether the trial court erred in ruling that appellant's prior armed robbery convictions would be admissible to impeach appellant if he testified;

2. whether the trial judge should have recused himself;

3. whether identifications by three of the victims were improperly admitted;

4. whether a violation of the rule excluding witnesses from the proceedings requires reversal;

5. whether appellant was denied effective assistance of counsel at sentencing; and

6. whether appellant was properly sentenced.

In three separate incidents during the late hours of September 25, 1982 and early hours of September 26, 1982, ten young people were accosted at the Salt River bottom, where they had been partying. Nine of the victims were robbed and one, not possessing a wallet or purse to give to the assailants, was assaulted.

The first incident involved four victims in one car as they were travelling on the river bottom toward the party area. A car came from behind and cut them off, forcing them to stop. Appellant, codefendant Don Meeker, and James Reed departed from the overtaking car, robbed the four victims, and left.

The second incident involved two victims, Timothy Thompson and Scott Gronek, as they were leaving the party area. Like the first incident, a car came from behind the victims and cut them off, forcing them to stop. This time two people exited the robbers' car. The third person remained in the back seat of the car. Codefendant Meeker went to the driver's side of the victims' car, where Thompson was sitting, and put a handgun to Thompson's head. Appellant went to the passenger side of the car, where Gronek was sitting, and held a shotgun across Gronek's throat. After Thompson and Gronek gave their wallets to the robbers, appellant hit Gronek in the nose with the gun. A few minutes after the robbers left the scene, Thompson and Gronek looked for a telephone to call the police. As the two victims approached a nearby Circle K convenience store, they saw the robbers' car. Thompson and Gronek drove into the Circle K parking lot and parked behind the robbers' car. The victim saw the two assailants inside the Circle K. A third person was in the back seat of the robbers' car. Thompson and Gronek then drove to the side of the store so the robbers could not see them.

At the side of the Circle K a Barbara Pell was using a pay telephone to call the police. Pell and three friends had also just been accosted while leaving the river bottom. Pell had been in a car that was forced to stop in the same manner as in the first two incidents described above. Appellant and Meeker had existed the overtaking car, wielded a handgun and a shotgun, forced the four occupants of the stopped car to give up their valuables, and left. A third person had remained inside the robbers' car. Pell had not been carrying a wallet or purse, so although she was assaulted, she was not robbed.

The car in which Pell had been a passenger was temporarily immobile after the robbery, so Pell obtained a ride from friends leaving the party area who drove by shortly after the robbery. These friends took Pell to the Circle K to phone the police. Within five minutes after the robbery, Pell was at the Circle K, and could see the assailants' car in the lot and the assailants themselves at the checkout counter in the store.

While Pell was on the phone talking with police, the robbers entered their car and drove away. Thompson and Gronek followed them. An officer, answering the police radio, caught up with Thompson and Gronek. Those two indicated to the officer that the car they were following contained the robbers. Meanwhile two other officers picked up Pell at the Circle K. Police eventually stopped the assailants, and at the arrest site, Thompson, Gronek, and Pell all identified appellant as one of the robbers.

I. IMPEACHMENT WITH PRIOR CONVICTIONS

The trial court held a pretrial hearing to determine the admissibility, for impeachment purposes, of appellant's prior convictions. The prior felonies the state wished to use to impeach appellant if he testified were three 1978 convictions of fraud (drawing checks on insufficient funds) and two 1979 convictions of armed robbery. After the hearing, the court ruled that the fraud convictions would be admissible if appellant testified, and took under advisement the armed robbery convictions. The next day the court ruled the armed robbery convictions admissible, explicity finding their probative value to outweigh any prejudicial effect. Appellant did not testify at trial. Appellant presently contests only the ruling concerning the armed robbery convictions.

The admissibility, for impeachment purposes, of prior convictions is governed by Arizona Rules of Evidence, rule 609. That rule provides that the general rule for admissibility is that (1) the probative value of the prior felony must outweigh its prejudicial effect, and (2) the prior crime must have involved dishonesty, or it must have been punishable by death or imprisonment in excess of one year under the law under which defendant was convicted. We will not upset the trial court's ruling absent an abuse of discretion. State v. Harding, 140 Ariz. --- 687 P.2d 1247.

Appellant first argues that the trial court erred because it did not state on the record the specific facts and circumstances supporting its conclusion that the probative value of the prior armed robbery convictions outweighed their prejudicial effect. Appellant cites State v. Sullivan, 130 Ariz. 213, 635 P.2d 501 (1981), and State v. Ellerson, 125 Ariz. 249, 609 P.2d 64 (1980). Ellerson is the case in which we discussed at length the findings a court should make before ruling on the admissibility of prior convictions. In Ellerson the error was that the trial court did not state explicitly that, as required by rule 609, the probative value of the prior convictions outweighed their prejudicial effect. The error was not fatal because it appeared from a complete reading of the transcript of the hearing on the motion that the court did consider the matters required by rule 609. The transcript revealed that all the prior convictions were fully discussed by the judge and counsel during the hearing. In Ellerson we also discussed what a hearing in this context should entail. (It need not be extensive. The government should state the date, nature, and place of conviction, and why it should be admitted. The defendant should be permitted to rebut the government's presentation.) We further said:

The better procedure would be for the court before evidence of a prior criminal conviction is admitted for impeachment purposes, to "make an on-the-record finding based on specific facts and circumstances that the probative value of the evidence substantially outweighs the danger of unfair prejudice." United States v. Mahler, 579 F.2d 730, 734 (2d Cir.1978), cert. denied, 439 U.S. 991, 99 S.Ct. 592, 58 L.Ed.2d 666, reh. denied, 439 U.S. 1104, 99 S.Ct. 885, 59 L.Ed.2d 66 (1979).

125 Ariz. at 252, 609 P.2d at 67.

In Sullivan, supra, also cited by appellant, we said:

As we pointed out in State v. Ellerson, supra at 252, 609 P.2d 64, when the State intends to offer a prior conviction in evidence for impeachment of a defendant, the trial judge should require the State to show the date, place and nature of the prior conviction and any other relevant circumstance. The defendant should be permitted to rebut the State's showing relevancy by pointing out the prejudicial effect to the defendant if the evidence is admitted. The trial judge should consider the matters presented and before admitting the evidence, he should make a finding on the record that the probative value of the evidence substantially outweighs the danger of unfair prejudice. The procedure followed by the trial court in this case substantially complied with that suggested by State v. Ellerson, supra.

130 Ariz. at 217, 635 P.2d at 505.

Ellerson and Sullivan demonstrate that with regard to the admission of evidence of prior convictions for impeachment purposes we will not upset a trial court's ruling so long as the record shows that the court carefully considered the matter. In the present case, unlike in Ellerson, the court explicitly found that the probative value of the armed robbery convictions outweighed their prejudicial effect. The court did not state on the record the specific facts and circumstances supporting its finding. However, as in Sullivan the record reveals that the procedure followed by the trial court substantially complied...