State v. Smith, 6220

Decision Date10 September 1985
Docket NumberNo. 6220,6220
Citation707 P.2d 289,146 Ariz. 491
Parties, 64 A.L.R.4th 809 STATE of Arizona, Appellee, v. Bernard SMITH, Appellant.
CourtArizona Supreme Court

Robert K. Corbin, Atty. Gen. by William J. Schafer III, Linda Akers and Robert Golden, Asst. Attys. Gen., Phoenix, for appellee.

James Kemper, Deputy Public Defender, Phoenix, and John Hart, Yuma, for appellant.

FELDMAN, Justice.

Bernard Smith (defendant) was convicted of first degree murder and armed robbery on January 19, 1984. A.R.S. §§ 13-1105 and 13-1904. The trial judge sentenced defendant to death for the murder and to life imprisonment for the robbery. In imposing the death sentence, the trial judge found no mitigating factors and five aggravating factors, including three prior felony convictions for offenses committed while on parole. A.R.S. § 13-703. Defendant appeals from both convictions. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3); A.R.S. § 13-4031; and Rule 31.19, Ariz.R.Crim.P., 17 A.R.S.


Shortly before midnight on August 21, 1983, defendant stopped at the Low Cost Market in Yuma to purchase a pack of cigarettes. After he had paid for the cigarettes, he demanded that the clerk, Charles Pray, give him all the money in the cash register. Pray did not comply immediately and called for the store manager, John Wall. Defendant then shot Pray, removed the money from the register and left the store. Pray later died from the gunshot wound.

Ellen Foster had just made her purchases at the Low Cost Market and had returned to the car where her sister, Margaret Westcott, was waiting when they heard the gunshot and saw defendant quickly leaving the store. They watched him as he walked to his car and followed him. He pointed a gun at them, told them to go, and got into his car and drove away. They reported his license number to the police, who stopped defendant, arrested him and transported him immediately to the parking lot of the Low Cost Market. There, the police conducted a show-up at which defendant was presented for identification to four people. Floyd Wooldridge, a customer in the store at the time of the shooting and robbery, made a positive identification. Neither John Wall, Margaret Westcott, nor Susan Massey, who had also been in the store at the time of the shooting and robbery, could identify defendant as the man who had shot Charles Pray.

Ellen Foster did not return to the Low Cost Market for the show-up of defendant but was taken to the police station for an identification procedure. On the way to the station, Officer Skaggs of the City of Yuma Police Department informed Foster that they had "caught the man." Skaggs also told Foster that it had not taken long for the police to apprehend the defendant, that they had been waiting for him at his house, and that they had found the gun in his car. At the station, Foster was presented with three successive show-ups of defendant. After the third show-up, she positively identified him.

At trial, the defense was mistaken identification. On appeal, defendant raises the following issues:

1. Whether the prosecutor's questioning of defendant regarding a prior conviction which the prosecutor did not prove constituted prosecutorial misconduct.

2. Whether the trial judge's denial of defendant's motion to suppress Ellen Foster's in-court identification violated defendant's federal due process right.

3. Whether defendant was improperly given an enhanced sentence under A.R.S. § 13-604.01(A).

4. Whether the use by the prosecutor of evidence of defendant's prior bad acts both in the case-in-chief and in impeaching defendant violated defendant's federal constitutional right to a fair trial.

5. Whether the trial judge's failure to find the "pecuniary gain" aggravating factor beyond a reasonable doubt was improper.

6. Whether certain elements of Arizona's death sentencing procedure violate the eighth and fourteenth amendments to the federal Constitution.


During cross-examination of defendant, the prosecutor asked him about a prior conviction for possession of PCP (a controlled substance). The defendant denied the conviction, explaining that the matter that the prosecutor referred to was actually a revocation of probation. The prosecutor introduced no evidence to rebut defendant's testimony or to establish the conviction. Defendant asserts that this failure of proof is prosecutorial misconduct requiring reversal.

The general rule is that a prosecutor cannot impeach a defendant with evidence of prior conduct without offering evidence to prove the bad conduct at trial. State v. Bailey, 132 Ariz. 472, 477-78, 647 P.2d 170, 175-76 (1982); M. UDALL & J. LIVERMORE, ARIZONA LAW OF EVIDENCE § 47 at 93 (2nd ed.1982). The basis for this rule is that "[by] asking questions that have no basis in fact, the questioner can leave in the minds of the jurors all kinds of damaging and prejudicial but false or inadmissible facts, facts which can't be adequately rebutted...." State v. Holsinger, 124 Ariz. 18, 21, 601 P.2d 1054, 1057 (1979). We first announced this principle in State v. Singleton, 66 Ariz. 49, 182 P.2d 920 (1947). There, the prosecutor attempted to impeach the defendant with questions implying that he had quarreled with and threatened several persons in other incidents unrelated to the crimes for which the defendant was on trial. We reversed the conviction because, after the defendant denied the allegations, the prosecution failed to offer evidence in rebuttal. More recently, we reversed a conviction where the prosecutor implied by his questioning of a state's witness that the defendant had a "long criminal record," and then, after the defendant's denial, introduced no evidence to support the assertion. State v. Holsinger, 124 Ariz. at 20-21, 601 P.2d at 1056-57.

We believe that the facts in the case at bench distinguish it from such cases as Singleton and Holsinger. Here, the prosecutor arguably had a factual basis for questioning defendant about his "conviction" for possession of PCP. 1 As defendant explained on cross-examination, he had been convicted of one possession of PCP, had been placed on probation, and then had his probation revoked. It was this revocation of probation to which the prosecutor referred as a "conviction." Once defendant had offered this explanation, the prosecutor did not pursue that line of questioning. Thus, unlike the defendants in Singleton and Holsinger, defendant here was given an opportunity to explain his denial of the prior conviction. The jury had the benefit of this explanation and could infer that the prosecutor had mistaken the probation revocation for a conviction.

Also, the matter alluded to was hardly prejudicial under the facts of this case. In addition to his admission to one conviction for PCP possession, defendant had admitted three prior convictions for armed robbery. Under these circumstances we believe that any error caused by the prosecutor's questioning was harmless and does not require reversal. Cf. State v. Marvin, 124 Ariz. 555, 558, 606 P.2d 406, 409 (1980) (prosecutor's use of the term "rape" in questioning the defendant, though improper, did not require reversal where the defendant had explained that he did "forcibly have sex" with his ex-wife and where other evidence of the defendant's guilt was abundant).


Defendant claims that the trial court should have suppressed Ellen Foster's in-court identification because Officer Skaggs' comments to Foster on the way to the police station and the identification procedure at the station were unduly suggestive and thus fundamentally unfair. Defendant contends that the trial court's denial of his pretrial motion to suppress violated his constitutional right to due process of law.

Under the fourteenth amendment to the United States Constitution, a criminal defendant is entitled to have any pretrial identification procedure conducted in a manner that is fundamentally fair so as to secure his right to a fair trial. Stovall v. Denno, 388 U.S. 293, 297-98, 87 S.Ct. 1967, 1970-71, 18 L.Ed.2d 1199 (1967); United States v. Wade, 388 U.S. 218, 235, 87 S.Ct. 1926, 1936, 18 L.Ed.2d 1149 (1967). Unduly suggestive pretrial procedures may unfairly cause a witness to misidentify the defendant, and then to repeat the misidentification at trial. The "very substantial likelihood of an irreparable misidentification" at trial deriving from such an unfair pretrial identification procedure is a primary danger to be avoided. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). Thus, if a defendant challenges a proposed in-court identification on the grounds that it is tainted by a pretrial identification procedure, he must be accorded a hearing to determine the preliminary question of whether the pretrial identification procedure was in fact unduly suggestive. State v. Dessureault, 104 Ariz. 380, 384, 453 P.2d 951, 955 (1960), cert. denied, 397 U.S. 965, 90 S.Ct. 1000, 25 L.Ed.2d 257 (1970). At the hearing the prosecution must establish with clear and convincing evidence that the pretrial identification procedure was not unduly suggestive and therefore would not taint the in-court identification. Id. If the court finds that the pretrial identification procedure was unduly suggestive, it must next address the question whether the identification is nevertheless reliable. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); State v. Tresize, 127 Ariz. 571, 574, 623 P.2d 1, 4 (1980). The reliability question is to be answered by examining the factors set forth in Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). Whether the in-court identification of the defendant is thus admissible despite suggestive prior identification procedures is a preliminary question for the trial court. State v. Dessureault, supra. We will not disturb the trial court's...

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