State v. Simoneau
| Decision Date | 06 May 1965 |
| Docket Number | No. 1429,1429 |
| Citation | 401 P.2d 404,98 Ariz. 2 |
| Parties | STATE of Arizona, Appellee, v. Harold W. SIMONEAU, Appellant. |
| Court | Arizona Supreme Court |
Darrell F. Smith, Atty. Gen., Robert W. Pickrell, former Atty. Gen., Stirley Newell, former Asst. Atty. Gen., for appellee.
Ross Anderson, Phoenix, for appellant.
Appellant, Harold W. Simoneau, was charged with committing the crimes of robbery and attempted robbery in violation of A.R.S. §§ 13-641 and 13-108, respectively. The causes were consolidated for trial and appellant was convicted of both crimes, receiving fifteen to twenty years for robbery and eight to ten years for attempted robbery, the terms to run consecutively.
At 1:00 a. m. on March 19, 1963, Samuel Veltri, the manager of Starr's Liquor Store was confronted by an undisguised gunman who demanded and received the contents of the store cash register. On March 22, 1963, an undisguised gunman confronted Virginia Scott, an employee of Picnic Pantry, and demanded that she empty the store cash register. However, Mrs. Scott refused threatening to call the police and the bandit fled.
Simoneau was apprehended in the vicinity of the Picnic Pantry shortly after the attempt and a gun, identified at trial by the victims of the crimes as appearing to be the one used on them, was seen on appellant's car floor and seized by the arresting officers. He was later identified by the two complaining witnesses, Mr. Veltri and Mrs. Scott, at a police line-up and thereafter confessed to the crimes.
At the trial, Simoneau's confessions to the crimes were admitted into evidence but, before sending the matter to the jury with instructions on the voluntary aspect of the confessions, the court first held two hearings in the absence of the jury to determine their voluntariness. This was in conformity with the procedural requirements established in State v. Owen, 96 Ariz. 274, 394 P.2d 206, after that case was vacated and remanded in light of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908.
Appellant urges there was no testimony from the complaining witnesses, Mr. Veltri and Mrs. Scott, that he robbed them and that no identification of defendant was made at the trial. The transcript shows that after Mr. Veltri testified as to the facts surrounding the robbery of his liquor store he testified as follows:
'Q And tell the Court and jury what you did when you got down there?
'A I got down there, and they said, 'This is a two-way mirror, and the men are all lined up.'
'And when they turned the lights on, I said, 'There he is.'
'They said, 'Would you count from the left to the right?'
'Q Without telling what they told you which would be hearsay, were you able to pick a person out of the line-up?
'A Oh, yes.
'Q Is that person present in the courtroom?
'A Yes, sir.
'Q Would you indicate to the Court and the jury where he is?
'A He is sitting back there towards the left (indicating).
'A They told me I had to go inside and point the finger at him.
'Q Did you point the finger at him?
'A Yes.
'Q Did you say anything in the presence of the defendant?
'A The man walked in and said, 'Will you point out the man?'
'And I said, 'Him,' and that was it.'
The following was asked of Mrs. Scott:
'Q Is that person present in the courtroom?
'A Yes, he is.
'Q Could you indicate where he is?
'Q Sitting next to counsel?
'A Correct.
There can be no question but that appellant was properly identified at trial as the individual who attempted to rob Mrs. Scott and who did rob Mr. Veltri.
Appellant next contends the statutory element of fear was presented to the jury by way of leading questions:
A leading question is one which suggests the specific answer desired.
'[A] leading question is one that points out the desired answer and not one that calls for a simple affirmative or negative answer.' Florida Motor Lines Corporation v. Barry, 158 Fla. 123, 27 So.2d 753, 756.
This area is peculiarly a case for the principle that the trial court's determination controls. Ball v. State, 43 Ariz. 556, 33 P.2d 601; State v. Pierce, 59 Ariz. 411, 129 P.2d 916; State v. King, 66 Ariz. 42, 182 P.2d 915.
Appellant contends that it was error to allow a police officer to testify that the complaining witnesses, when at the Phoenix Police Department and in the officer's presence, identified appellant in a police line-up. We think the better rule is that in corroborating a witness it is permissible 'to prove that at a former time, when the suggestion of others could not have intervened to create a fancied recognition in the witness' mind, he recognized and declared the present accused to be the person.' IV Wigmore on Evidence, (3rd Ed.), § 1130, p. 208, and decisions there cited. See also our recent decision in State v. Miranda, 98 Ariz. 11, 401 P.2d 716, citing People v. Gould, 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 685, on this exact point.
Finally, appellant urges that he was prejudiced by certain remarks of the county attorney who, in his opening statement, told the jury that the complaining witness in each instance picked the accused out of the line-up and pointed to him as the person who had committed the offense without the accused denying that he was the person who committed the offense. Later, evidence was introduced substantiating the county attorney's opening statement. Appellant urges that this was an attempt to infer a tacit admission of guilt.
We agree and do not approve the introduction of evidence of an accused's silence in reply to questions when he is in custody or under other circumstances where it is his constitutional...
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State v. Payne
...him due process. Thus, we analyze this line of questioning as a whole. ¶ 119 Leading questions suggest an answer. State v. Simoneau, 98 Ariz. 2, 5, 401 P.2d 404, 407 (1965). Ordinarily, courts should not permit leading questions on direct examination, Ariz. R. Evid. 611(c), although such qu......
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State v. Bush
...or one is presented by the evidence" (quoting State v. Goodyear , 100 Ariz. 244, 248, 413 P.2d 566 (1966) ) ); State v. Simoneau , 98 Ariz. 2, 7, 401 P.2d 404 (1965) (stating that "where no question is presented to the court either by counsel or by the evidence at the trial suggesting that ......
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State v. Payne
...him due process. Thus, we analyze this line of questioning as a whole. ¶ 119 Leading questions suggest an answer. State v. Simoneau, 98 Ariz. 2, 5, 401 P.2d 404, 407 (1965). Ordinarily, courts should not permit leading questions on direct examination, Ariz. R. Evid. 611(c), although such qu......
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State v. Wright
...516 (1970), and that the state may not comment upon admissions by silence which occur while an arrestee is in custody, State v. Simoneau, 98 Ariz. 2, 401 P.2d 404 (1965). The other case which the majority cites, Ryder v. State, 513 P.2d 593 (Okl.Cr.1973), did indeed hold that it was not err......