State v. Spain

• Decision Date: 28 October 1976
• Docket Number: Nos. 2,CA-CR,s. 2
• Citation: 27 Ariz.App. 752,558 P.2d 947
• Parties: The STATE of Arizona, Appellee, v. William SPAIN, Jr., Appellant. 787, 2 788--2.
• Court: Arizona Court of Appeals

Page 947

558 P.2d 947

27 Ariz.App. 752

The STATE of Arizona, Appellee, v. William SPAIN, Jr., Appellant.

Nos. 2 CA-CR 787, 2 CA-CR 788--2.

Court of Appeals of Arizona, Division 2.

Oct. 28, 1976.

Rehearing Denied Nov. 30, 1976.

Petition for Review Denied Jan. 4, 1977.

Bruce E. Babbitt, Atty. Gen. by William J. Schafer, III, and Georgia Butcher Ellexson, Asst. Attys. Gen., Phoenix, for appellee

John M. Neis, Pima County Public Defender by Donald Jay Natoli, Jr., Asst. Public Defender, Tucson, for appellant.

OPINION

HOWARD, Chief Judge.

Appellant was convicted by a jury of armed robbery, armed burglary and assault with a deadly weapon and sentenced to concurrent terms of not less than fifteen nor more than twenty years in the Arizona State Prison.

The record shows that the victim, Alexander Woods, was asleep in his bedroom with the window open and was awakened by the barking of his dog. He heard a voice through the open window saying, 'Don't move or I'll kill you.' Woods looked up and saw a pistol coming through the screen of the window. He jumped up and reached for a lamp to use as a weapon but before he could throw it, two shots were fired. One hit him in the back and the other missed. Woods sat down on his bed abandoning any further thought of resistance. A person came through the window and put a .22 caliber pistol to his head asking him where the money was. Another individual had also entered the room through the window. Woods informed them that there was money laying on the snack bar in the kitchen. The person holding the .22 pistol turned to a third person who was either inside or outside the window and told Woods that they were going to get the money and that if he moved he would be killed. The two individuals who were inside the house went to get the money and when they returned demanded that Woods give them his billfold. A shotgun was held to Woods' head and one of the individuals stated, 'I'm leaving. You kill him.' Woods put his head down and hung onto the bed expecting to be shot. After about thirty seconds, when nothing had happened, Woods looked up and found he was alone. He was unable to see anything more than silhouettes and shadows because the room was dark. However, he did clearly see the hand on the .22 pistol and observed that the person holding the pistol was a Negro.

Appellant's fingerprints and palm prints were found on the inside screen and outside shutter of the bedroom window. Furthermore, there was testimony that it was impossible for the prints to be there unless the screen was first removed from the window. Appellant, who is black, did not testify at the trial.

Appellant claims it was error (1) for the trial court to deny his motion for a directed verdict based on the insufficiency of the evidence, (2) to deny his motion for mistrial based on prosecutorial misconduct, (3) to deny his motion for mistrial because of a reference to his photograph as a 'mugshot', (4) to compel appellant to testify before the jury as to phrases uttered on the night of the crime since the order was violative of the full disclosure requirement set forth in Rule 15 of the Arizona Rules of Criminal procedure and violated his constitutional rights against self-incrimination.

INSUFFICIENCY OF THE EVIDENCE

Appellant claims that the only evidence connecting him with the crime was the existence of his fingerprints on the bedroom window. He claims this evidence is insufficient to prove beyond a reasonable doubt that he committed the crimes or aided and abetted the others in the commission of the crime. We do not agree. This case is not unlike the case of State v. Brady, 2 Ariz.App. 210, 407 P.2d 399 (1965). There the defendant contended, as he does here, that the only evidence connecting him with the crime was the fingerprints. In holding the evidence sufficient the court stated:

'. . . In the instant case the evidence showed that the fingerprints of defendant were not found in a place and under circumstances where they could have been reasonably made at a time other than the time of the commission of the offense. It is well established in our State that a crime may be proven by circumstantial evidence alone, and that fingerprints are a means of positive identification by which a defendant may be linked with the commission of the offense. (citation omitted)' 2 Ariz.App. at 213, 407 P.2d at 402.

As in Brady, supra, appellant's fingerprints were not found in a place and under circumstances where they could have been made at a time other than the time of the commission of the offense.

PROSECUTORIAL MISCONDUCT

Appellant has cited to us four alleged instances of improper argument to the jury by the prosecutor. Considering the wide latitude allowed counsel in argument to the jury, State v. Abney, 103 Ariz. 294, 440 P.2d 914 (1968), we do not believe the argument was improper in three of the cited instances. During his rebuttal argument the prosecutor made the following statement:

'I would like to start by saying first off, we may not know for sure I may not know for sure what William Spain did in that residence. I know he did one of those things that happened there.'

Appellant's objection to the foregoing statement was sustained. He later moved for a mistrial which the court refused to grant.

In closing argument an attorney should never express his personal belief in the defendant's guilt or innocence. State v. Abney, supra. When the objection was sustained by the court, the prosecutor stated:

'I think the Evidence shows you, ladies and gentlemen, he did one of those things that happened that night . . ..' (Emphasis added)

In its instructions to the jury the court told them that counsel's closing argument was not evidence and that the only evidence which they were to consider consisted of the testimony of the witnesses and exhibits. No further instructions were requested by appellant relative to the statement or arguments of counsel. We believe that the prosecutor's statement made to the jury after the objection was sustained and the instructions of the court sufficiently brought home to the jury the proposition that the opinion of counsel was to be entirely disregarded by them.

TESTIMONY AS TO A 'MUGSHOT'

On direct examination an identification technician for the Pima County Sheriff's Department testified that his duties were to take fingerprints and pictures of all prisoners booked into the jail. Under cross-examination by defense counsel he testified as to the procedures he followed in the instant case:

'I put his hands on the card and I took some mugshots of him. They are not developed at the jail. They are developed at the Tucson Police Department.'

Appellant contends that the testimony of the identification technician constituted prejudicial error. We do not agree. The introduction into evidence of mugshots or the mention of the fact that the defendant had mugshots taken prior to the arrest for the offense charged can be error when they infer that the defendant has a prior arrest record. State v. Kelly,111 Ariz. 181, 526 P.2d 720 (1974). Here, the reference to the mugshot of the...