State v. Trotter
| Decision Date | 24 October 1973 |
| Docket Number | No. 2514,2514 |
| Citation | 514 P.2d 1249,110 Ariz. 61 |
| Parties | STATE of Arizona, Appellee, v. Roy Lee TROTTER, Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen., Peter Van Orman, William P. Dixon, Asst. Attys. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender, Anne Kappes, Deputy Public Defender, Phoenix, for appellant.
Roy Lee Trotter, hereinafter referred to as the defendant, was convicted below on one count of armed robbery and was sentenced to a term of from ten to fifteen years in the Arizona State Prison.
The issues raised by the defendant on appeal are as follows:
1. Was the failure to give a cautionary instruction regarding the polygraph evidence reversible error although such an instruction was not requested?
2. Could the defendant be convicted of the robbing of a clerk of the market who was named in the indictment when in fact it was the owner of the market who handed over the money?
3. Was the prosecutor's question on cross-examination as to whether the defendant had said he was not going to 'cop out' reversible error?
4. Were the prosecutor's comments in closing argument on the failure of defendant's alibi witnesses to contact the authorities prior to the trial prejudicial and reversible error even though the jury was instructed to disregard them?
Taking the facts in the light most favorable to sustaining the verdict, as we must on appeal, State v. Dutton, 106 Ariz. 463, 478 P.2d 87 (1970) they are as follows:
On October 21, 1971 at approximately 10:00 p.m. a 7/11 convenience market in South Phoenix was held up by a lone gunman. The robber entered the store, pointed a gun at Alan Flory, a clerk who was fixing a cooler in the back of the store, and ordered him to go over to the checkout stand where the owner of the store was working. The robber demanded that the money be handed over. The money was handed over by Jerry Winfrey, the store owner, and the robber fled on foot.
The robbery was immediately reported to the Phoenix police. Later that night the police brought a suspect back to the store for the two witnesses to view. Both witnesses indicated that he was not the robber.
A few days after the robbery occurred both witnesses attended a police lineup but failed to identify anyone. Defendant was not in that lineup. Later they were shown a series of photographs depicting three persons, one of whom was the defendant. Flory immediately identified the defendant as the robber. Winfrey was unable to make any identification.
Based upon Flory's positive identification, a complaint was filed charging that the defendant robbed Flory on the night in question. At the trial Flory identified the defendant as the person who committed the robbery. In addition pursuant to a written stipulation, the results of a polygraph examination which the defendant submitted to prior to trial, were admitted at the trial. An agent for the Department of Public Safety testified that he administered the examination to the defendant. As part of the examination he asked two questions relating to the robbery. He testified that in his opinion the defendant answered untruthfully when he answered no to the questions 'Did you hold a gun on the clerk at the 7/11 Market on 16th Street and Southern and steal about $150.00?' and 'Did you hold up that 7/11 Market and steal that money that was placed in a blue plastic Valley National Bank bag?'
After the defendant put on his case which consisted of an alibi corroborated by three defense witnesses, he was convicted of the charge by the jury. Defense counsel claims that the failure of the trial court to give a cautionary instruction to the jury regarding the polygraph evidence was error and required reversal although such an instruction had not been requested. This court has provided numerous built-in safeguards in the qualifications for the admissibility of this type of evidence. State v. Valdez, 91 Ariz. 274, 371 P.2d 894 (1962). These qualifications which must be fully met before the results of a polygraph examination will be admitted, are as follows: (1) A written stipulation for the test and subsequent admission of the graphs at the trial; (2) The trial judge may refuse to accept such evidence; (3) That if the graphs and examiner's opinion are offered in evidence the opposing party shall have the right to cross-examine the examiner; and (4) The trial judge should instruct the jury that the examiner's testimony does not tend to prove or disprove any element of the crime with which a defendant is charged but at most tends only to indicate that at the time of the examination defendant was not telling the truth. Further, the jury members should be instructed that it is for them to determine what corroborative weight and effect such tesimony should be given.
The record reveals that the judge properly instructed the jury that it was for them to determine the corroborative weight and effect that such testimony should be given. However the trial court judge failed to instruct the jury that the examiner's testimony does not tend to prove or disprove any element of the crime but only tends to indicate that the defendant was not telling the truth at the time of the polygraph examination. Such an instruction is mandatory in cases where the results of a polygraph examination are admitted into evidence under the qualifications we set forth in Valdez, supra. Such an instruction is necessary to prevent the jury from treating such evidence as being conclusive upon the issue of guilt rather than merely to corroborate other evidence or impeach the testimony of the defendant.
While we must agree with counsel for the defendant that the court's failure to give such an instruction sua sponte constituted error, we do not feel that it requires a reversal under the facts of the instant case. The state introduced sufficient evidence so that the jury could have convicted the defendant without the testimony concerning the polygraph examination. The prosecution introduced the testimony of the two witnesses to the holdup. Winfrey, the owner of the store, described how the robber forced him at gunpoint to put the money in the bag. An employee, Alan Flory, testified that the defendant took the money from him and he positively identified the...
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State v. Adamson
...In the absence of any showing of abuse of discretion the ruling of the trial court will not be reversed on appeal. State v. Trotter, 110 Ariz. 61, 514 P.2d 1249 (1973). We do not believe that the trial court abused its discretion in denying defendant's motion for mistrial. In his own case t......
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