State v. Roper

• Decision Date: 24 April 1984
• Docket Number: Nos. 1,CA-CR,s. 1
• Citation: 140 Ariz. 459,682 P.2d 464
• Parties: STATE of Arizona, Appellee, v. Clarence ROPER, Appellant. 6356, 1 6357.
• Court: Arizona Court of Appeals

Page 464

682 P.2d 464

140 Ariz. 459

STATE of Arizona, Appellee, v. Clarence ROPER, Appellant.

Nos. 1 CA-CR 6356, 1 CA-CR 6357.

Court of Appeals of Arizona Division 1, Department A.

April 24, 1984.

Robert K. Corbin, Atty. Gen. by William J. Schafer III, Chief Counsel, Crim. Div., Diane M. Ramsey, Asst. Atty. Gen., Phoenix, for appellee

Ross P. Lee, Maricopa County Public Defender by James R. Rummage, Deputy Public Defender, Phoenix, for appellant.

OPINION

CONTRERAS, Judge.

Appellant was charged by indictment in CR-124604 with three counts of armed robbery, class two felonies. The incidents charged in the indictment occurred during the month of January, 1982. Timely defense motions to sever the counts were made prior to trial and at the close of the evidence. The motions were denied and the case was submitted to the jury. The jury found appellant not guilty on Counts I and II, but returned a verdict of guilty on Count III. We find that the trial court abused its discretion by not severing Count III from the other two counts of the indictment. We therefore reverse the conviction on Count III and remand the matter for new trial on this count. ¹

On appeal, appellant has raised the following issues:

I. The trial court abused its discretion by denying appellant's motion to sever.

II. The trial court abused its discretion in denying a Rule 11 motion by appellant's trial counsel.

III. The trial court erred by admitting hearsay statements through a police officer's testimony.

IV. The sentence imposed was excessive.

The underlying facts, evidence, and applicable law will be set forth and discussed under separate issue headings.

MOTION TO SEVER

Prior to trial appellant filed a written motion to sever the counts from each other and the state responded that joinder was proper under Rule 13.3, Arizona Rules of Criminal Procedure, because the crimes charged in the indictment were part of a common plan or scheme. In support of its argument, the state relied on State v. Tipton, 119 Ariz. 386, 388, 581 P.2d 231, 233 (1978) for the proposition set forth in that case by the Arizona Supreme Court that "for two crimes to be classified as a common plan or scheme it is not necessary for the crimes to have been perpetrated in an absolutely identical manner, ... so long as the court perceives a 'visual connection' between the two crimes [citations omitted]". Appellant filed a reply memorandum setting forth what were perceived to be substantial differences in regard to the three robberies which, appellant contended, mandated severance in accordance with Rule 13.4 of the Arizona Rules of Criminal Procedure. The pretrial motion to sever was decided on the memoranda filed in support of each side's position. This motion was denied. Upon completion of the trial and before submission to the jury, the motion to sever was renewed. This motion was similarly denied.

It is settled that a defendant must demonstrate a clear abuse of discretion with respect to the trial court's decision to join offenses, based on a showing at the time the motion is made and not what ultimately transpires at trial, State v. Dale, 113 Ariz. 212, 550 P.2d 83 (1976), and a trial court possesses broad discretion in the area of joinder and severance. Tipton, supra. In Tipton and State v. Moore, 108 Ariz. 215, 495 P.2d 445 (1972), the case upon which the court in Tipton relied when it stated that the trial court need only perceive a "visual connection" between two crimes, the facts of the various offenses joined for trial shared substantial similarities. However, even if charges are not properly joined as part of a common plan or scheme under Rule 13.3(a)(3), it may nevertheless not be prejudicial or an abuse of discretion to try the charges together as similar acts, where the evidence of the other crimes would be admissible under another theory advanced. State v. Henderson, 116 Ariz. 310, 569 P.2d 252 (App.1977).

When evidence of other crimes is admitted to show common plan or scheme "the similarities between the offenses 'must be in those important aspects where normally there could be expected to be found differences. Evidence is not admissible except as it may show a tendency or likelihood of a plan common to all offenses to commit the crime.' " State v. Jones, 26 Ariz.App. 68, 71, 546 P.2d 45, 48 (1976), quoting State v. Akins, 94 Ariz. 263, 266-267, 383 P.2d 180, 182-183 (1963). As stated in Moore, "[t]he use of guns, getaway vehicles and the occurrence of robberies at times when there were no customers [are circumstances which] can hardly be relied upon to show a common plan or scheme." 108 Ariz. at 217, 495 P.2d at 447. The court in Moore quoted with approval from Hardin v. State, 462 P.2d 357, 359-60 (Okl.Cr.1969), in part, as follows:

"The court has repeatedly held that this exception and other exceptions to the general rule are to be used with the utmost caution in that the court must perceive a visual connection and in case any doubt is entertained, it is to be resolved in favor of defendant. The exception to the general rule is not secondary to the rule and before evidence of other crimes can be competent or admissible in a criminal trial to prove the specific crime charged on the grounds of common scheme or plan, the two or more crimes must be so clearly related that the proof of one tends to establish the other and should never be admitted when it tends to show that the accused has committed other crimes wholly independent of that for which he is on trial."

108 Ariz. at 218, 495 P.2d at 448.

Furthermore, as noted by the court in State v. Jackson, 124 Ariz. 202, 603 P.2d 94 (1979), when utilizing the common scheme exception, a court must determine the admissibility of the other acts by reviewing not only the similarities, but also the differences between the alleged acts. Joinder under Rule 13.3(a)(3), Arizona Rules of Criminal Procedure, has been held to be "coextensive with the 'common scheme or plan' exception to the rule against using evidence in one prosecution tending to prove the commission of another distinct and independent crime...." Henderson, 116 Ariz. at 316, 569 P.2d at 258. The rules on joinder and severance are intended to further not only liberal joinder but also liberal severance. Henderson, supra. Where there is any doubt, it must be resolved in favor of the defendant. Moore, supra.

In this case, the state relied on proposed proof of the armed robberies alleged in Counts I and II to create an inference that appellant was involved in the armed robbery which occurred in Count III. It argues that the "visual connection" between the offenses included: excessive force was used on the lone victim in all three armed robberies; there was an attempt to remove personal property from the lone victim's person in each incident; an alcoholic beverage was taken from the establishments in Counts II and III; all of the robberies took place when there were few customers present. However, we find that the differences between the crimes alleged in Counts I and II and the crime alleged in Count III were substantial. In so finding we have considered the similarities of the modus operandi in Counts I and II as compared and contrasted to that of Count III. Count I involved the robbery of a gas station with a gun wherein the lone clerk was shot. The method of approach used in that case was very similar to Count II in that a juvenile first entered the establishment for seemingly innocuous purposes. In Count I the juvenile went to the clerk of the gas station to obtain change and in Count II he entered the market and went to the back of the store to obtain a carton of milk from the display counter. In both Counts I and II, after the juvenile had entered the establishment, either one or two adult black males entered the establishment with a gun. In Count I, as noted above, the clerk was immediately shot by one of the adults and, in Count II, two adult males immediately entered the store with one of them firing a shot. Both establishments were robbed in the evening and were in the same neighborhood to the extent that they were only a few blocks apart.

On the other hand, in Count III, a bar was robbed at 7:30 a.m. in the morning and, although a gun was used, it was not fired. No juvenile was present, in contrast to the other two counts, and two black males immediately entered the establishment upon confronting the lone clerk. In addition, the location of the robbery in Count III, although on the "east side of town" was a considerable distance from the locations in Counts I and II. The differences, in the "unique signature" of the...