State v. Salerno

• Decision Date: 11 July 1969
• Docket Number: No. 1814,1814
• Citation: State v. Salerno, 104 Ariz. 601, 457 P.2d 278 (Ariz. 1969)
• Parties: STATE of Arizona, Appellee, v. Gino SALERNO, Appellant.
• Court: Arizona Supreme Court

Page 278

457 P.2d 278

104 Ariz. 601

STATE of Arizona, Appellee, v. Gino SALERNO, Appellant.

No. 1814.

Supreme Court of Arizona, In Division.

July 11, 1969.

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

Leibsohn & Goldstein, Phoenix, for appellant.

UDALL, Chief Justice:

Gino Salerno was tried and convicted with Andrew Lombardo for the crime of grand theft. Two witnesses observed the defendant enter Skomer's Mens Store in Park Central Shopping Center, Phoenix; saw Salerno take two suits off the rack and put them under Lombardo's trenchcoat; and then watched Lombardo leave the store and head for the parking lot. The witnesses, both store detectives for other stores in the center, followed Lombardo to the parking lot where they arrested him with the suits in his possession. Salerno was arrested shortly thereafter at another part of the shopping center. The defendants were jointly tried but have appealed separately. We considered questions raised common to both appellants in State v. Lombardo, Ariz., 457 P.2d 275. This opinion is concerned only with two points raised solely by Salerno.

Salerno first contends that the verdict and judgment were not supported by the evidence presented at trial. We believe the following correctly states the law in this regard:

'In reviewing the sufficiency of the evidence to support a conviction the evidence must be viewed in light most favorable to the state, and all reasonable inferences must be resolved against defendant. In considering whether a verdict is contrary to the evidence we do not decide whether we would reach the same conclusion as the jury. The question is whether there is competent evidence to support the conclusions found.' State v. Norgard, 103 Ariz. 381, 382, 442 P.2d 544, 545 (1968).

The evidence against Salerno consisted mainly of the testimony of the two store detectives, each of whom identified him and described his part in the crime. One of the detectives had followed Salerno for some time prior to his entering Skomer's. We feel that the verdict is adequately supported by the above evidence.

Salerno next contends that the court erred in refusing to grant his motion for a separate trial. In support of his motion Salerno argued that he would be prejudiced in a joint trial by the admission into evidence of certain inculpatory statements made by the co-defendant Lombardo. In that regard the court gave the following instruction:

'Where evidence has been received against one of the defendants but is not received as against the other, the jury may consider such evidence only as against the defendnat against whom it was permitted to be received. It may not be considered by the jury for any other purpose or against any other defendant.'

Defendants are to be tried jointly when they are jointly charged with any offense and a motion for separate trials is addressed to the discretion of the court. Rule 254, Rules of Criminal Procedure, 17 A.R.S. We will interfere with the court's ruling only where there is shown a clear abuse of discretion.

In State v. Goodyear, 98 Ariz. 304, 404 P.2d 397, reversed on rehearing, 100 Ariz. 244, 413 P.2d 566 (1966), we upheld the trial court's refusal to grant separate trials where confessions were admitted into evidence. The question was also fully discussed in State v. Jackson, 100 Ariz. 91, 412 P.2d 36 (1966), where we said:

'It is not an abuse of this discretion for the court to deny motions for separate trials where confessions are to be admitted when it finds none of the defendants will be prejudiced by their admission under instructions to limit the consideration of each confession as evidence applicable only to the defendant who made it.'

Since Jackson and Goodyear the U.S. Supreme Court has handed...