State v. Rodriquez

• Decision Date: 24 October 1973
• Docket Number: No. 2423,2423
• Citation: 110 Ariz. 57,514 P.2d 1245
• Parties: STATE of Arizona, Appellee, v. Jose RODRIQUEZ, John Flores, Jr. and Frank Roberto Flores, Appellants.
• Court: Arizona Supreme Court

Page 1245

514 P.2d 1245

110 Ariz. 57

STATE of Arizona, Appellee, v. Jose RODRIQUEZ, John Flores, Jr. and Frank Roberto Flores, Appellants.

No. 2423.

Supreme Court of Arizona, In Division.

Oct. 24, 1973.

Gary K. Nelson, Atty. Gen., by Thomas A. Jacobs and Cleon M. Duke, Asst. Attys. Gen., Phoenix, for appellee.

W. Clifford Girard, Jr., Phoenix, for appellants.

STRUCKMEYER, Justice.

Defendants, Jose Rodriquez, John Flores, Jr., and Frank Roberto Flores, were convicted in the Superior Court of Maricopa County, Arizona, of attempted armed robbery, and have appealed.

The facts stated in the light most favorable to sustaining the conviction show that on the evening of July 7, 1970, Jose Rodriquez and John Flores, Jr. entered the Rainbow Liquors store in Phoenix, Arizona, seemingly with the intention of committing the crime of robbery. A shooting occurred in which the defendant John Flores, Jr. was injured. Immediately thereafter, Rodriquez and John Flores, Jr. ran from the store and left in an automobile driven by Frank Roberto Flores. About thirty minutes later, they went to a hospital, where they were arrested. Hollis Grimes, an attendant at the store, identified them at the hospital as the persons who had attempted a robbery.

Defendants filed motions to suppress this identification on the grounds that it prejudicially deprived them of their Fifth and Sixth Amendment rights. These motions were denied and are defendants' first grounds for appeal.

In State v. Nunez, 108 Ariz. 71, 492 P.2d 1178 (1972), this Court specifically refused to extend the rule of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), holding that counsel is not required to be furnished to a defendant at pre-indictment or pre-information proceedings. We have also held that a suspect is not denied due process when placed in a line-up prior to indictment or the filing of an information merely because counsel was not present to represent him. State v. Taylor, 109 Ariz. 518, 514 P.2d 439, September 26, 1973; State v. Flynn, 109 Ariz. 545, 514 P.2d 466, September 20, 1973; and See State v. Branch, 108 Ariz. 351, 498 P.2d 218 (1972); State v. Fields, 104 Ariz. 486, 455 P.2d 964 (1969); and State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969), cert. denied, 397 U.S. 965, 90 S.Ct. 1000, 25 L.Ed.2d 257 (1970). While it is true that the Sixth Amendment to the Constitution of the United States requires that an accused have counsel at any critical stage of his prosecution, Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), it is only when the government has committed itself to prosecute and the adverse positions of the government and the defendant have solidified that the explicit guarantee of the Sixth Amendment is applicable, Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). We hold that the defendants did not have a constitutional right to counsel at the show-up at the hospital and, therefore, were not for this reason denied due process of law.

Defendants urge that the hospital identification was prejudicial in that it was unduly suggestive, first, because Grimes was told in advance that the police had the robbers at the hospital, and, second, because when Grimes arrived there, two of the defendants were handcuffed and the third was lying on a bed with his head heavily bandaged. The trial judge heard arguments of counsel at a pre-trial proceeding which were later renewed at the trial. This testimony taken at the preliminary examination was relied on to establish the defendants' positions:

'Q. The police told you they had the boys down at the hospital? Who did this, what did they say to you then?

A. One of them asked me would I go over with him. He took me over and brought me back.

Q. Did he tell you why he was taking you over?

'A. Yes, he wanted me to see if I could identify them.

Q. He already told you these were the boys?

A. He said they had them over there.

Q. Did he tell you why he thought they were the boys?

A. They had the fellow over there for treatment.

Q. Did he tell you one of the boys was there for a gunshot wound?

A. Yes.

Q. Pretty sure who the boy was?

A. That's correct.'

Testimony of Hollis Grimes.

Even though the defendants were handcuffed and Grimes was told that the police had captured the men who had attempted to rob him, the trial court's denial of defendants' motion to suppress the in-court identification was not error. It could have reasonably concluded that, regardless of these suggestive circumstances at the hospital, the procedure did not contaminate the identification then or later.

The facts are that one of the defendants stood close enough to Grimes in the store to hit him on the head with his fist, and the other tried to open the cash register about three or four feet away. Moreover, the time lapse between the attempted robbery and the view by Grimes of the defendants at the hospital was less than an hour--obviously the identification was made at a point in time when Grimes' recollection was still fresh. We find nothing in the record which would indicate that he was such an unduly suggestible individual that he would be influenced by the statements of the police into making an erroneous identification.

The second issue raised by defendants concerns a statement made by the trial judge in overruling defense counsel's objection to the narrative form of answer by the State's witness, Julio Rios.

'THE COURT: I believe you can elaborate on cross-examination. He is making an honest effort to relate. You may proceed.'

Defense counsel objected to the phrase 'honest effort to relate,' and asked for a mistrial. The court denied the motion, but, recognizing the implication contained in his statement, immediately instructed the jury in this language:

'THE COURT: Ladies and gentlemen, the Court commented in connection with a ruling that the witness was making in the opinion of the Court an honest effort to relate, and you are instructed to disregard that statement, that it is the exclusive province of the jury to determine the credibility of the witness and an inpropriety (sic) statement on the part of the Court. You may proceed.'

Defendants urge that the court's instruction could not cure the error created by the remark. We disagree.

First, an examination of the precedents cited by defendants leads us to the conclusion that they are distinguishable. In Robinson v. State (Fla.App.), 161 So.2d 578 (1964); State v. Deslovers, 40 R.I. 89, 100 A. 64 (1917); and Hamilton v. State (Fla.App.), 109 So.2d 422 (1959), there was no cautionary instruction to the jury following the allegedly prejudicial comment. In State v. Gunther, 2 Conn.Cir. 502, 202 A.2d 905 (1964), the trial judge said:

'This witness is doing a very commendable job, doing an exemplary job in testifying here. The court is very much impressed with his straightforwardness in trying to answer the questions.' 202 A.2d 905, 906.

The Connecticut appellate court said:

'The remarks had the capacity to tip the scale against the defendant. It has (sic) more than a mere passing comment; it was a broad endorsement of the unimpeachable credibility of the state's witness.' 202 A.2d 905, 907.

Here, the court's comment was not a broad endorsement of the credibility of the witness and the special instruction to the jury immediately following sufficiently protected defendants from any prejudice.

Defendants next assert that the trial court's refusal to instruct the jury as to specific intent was error. We have previously held that the crime of robbery requires the giving of an instruction on specific intent. State v. Hardin, 99 Ariz. 56, 406 P.2d 406 (1965).

In the instant case, the trial court gave the following instructions on robbery and attempts:

'You are further instructed that robbery is the felonious taking of personal property in the possession of another from this person, or immediate presence, and against his will, accomplished by means of force or fear.

An attempt to commit a crime is the...