State v. Turner
| Decision Date | 09 May 1984 |
| Docket Number | No. 6016,6016 |
| Citation | 141 Ariz. 470,687 P.2d 1225 |
| Parties | STATE of Arizona, Appellee, v. Nathaniel TURNER, Appellant. |
| Court | Arizona Supreme Court |
Robert K. Corbin, Atty. Gen. by William J. Schafer III and Greg A. McCarthy, Asst. Attys. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender by Michael G. Sullivan and Arthur G. Hazelton, Deputy Public Defenders, Phoenix, for appellant.
Defendant, Nathaniel Junior Turner, was convicted and adjudged guilty of armed robbery, a Class 2 felony, in violation of A.R.S. §§ 13-1901, -1902, -1904, -1801, and -604. The trial judge also made a finding that the defendant was on parole when the offense was committed and sentenced defendant to life without possibility of parole for twenty-five years pursuant to A.R.S. § 13-604.01. We have jurisdiction pursuant to A.R.S. §§ 13-4031, -4035 and Arizona Constitution, Article 6, § 5.
We must decide the following issues:
I. Was the failure to sever the trials of the two defendants in this case reversible error?
II. Was the limiting instruction given by the trial court concerning defendant's prior conviction proper?
III. Was the issue of whether defendant was on parole at the time of the offense properly decided?
The facts necessary for a determination of this matter are as follow. Late on the evening of 1 April 1983 or early during the morning of 2 April 1983 co-defendant Fred McNair and a third party, Wilford Strong, met defendant in a club in south Phoenix. At 1 a.m. McNair tried to buy some liquor in a U-Totem, but was unable to do so due to the late hour. McNair was driving, defendant was in the front seat, and Strong was in the back seat. After driving around for approximately two hours, the three men pulled into a Union 76 gas station located at Grant Street and Interstate 17 in Phoenix. They drove to the self-service island, remained there a few minutes, and then drove to the full-service island. The gas-station attendant, Alvy Robins, walked out to the car. McNair asked Robins for some power steering fluid. Robins stated that he did not have any power steering fluid, but he did have transmission fluid, which "would work just as well." Robins walked back to the station building to obtain the can of transmission fluid. McNair propped the hood open with a jack that he kept in the trunk of the car. Robins returned with the fluid and handed the can and a spout to McNair. Defendant was standing near the front of the car.
While McNair was pouring the transmission fluid into the car, he asked Robins for some gasoline. Robins inserted the nozzle into the neck of the gas tank and set the handle so that it would pump automatically. McNair then handed Robins the half-empty can of transmission fluid and indicated that he would not be using any more of the fluid. The jack was removed from the car's hood and it was replaced in the trunk by McNair. Robins testified that he observed several cans of transmission fluid in the trunk. McNair then changed his mind and decided he wanted the half-empty can of transmission fluid. Robins turned around to retrieve the can from the pump island where he had placed it. As he turned back around defendant struck Robins in the face with the jack, and Robins fell to the ground. At this point either McNair or defendant demanded money from Robins, who took the only available money out of his pocket and handed it to the men, along with the office key. The two men returned to the car and drove away, heading east. During the commission of the crime, Strong did not leave the car.
Although Robins' face was bleeding and his left eye was swollen, he was able to observe the license plate number of the car, and wrote this down on a credit card invoice. Robins called Crime Stop and gave a description of the vehicle, the license plate number, and a description of the three men occupying the car. Officer Lum of the Phoenix Police Department received this information in a "hot call" over his radio and saw the McNair vehicle coming towards him. He stopped the vehicle and returned it to the gas station, where Robins identified the occupants.
McNair and defendant were jointly tried for armed robbery. McNair testified twice. Originally, he testified that he never saw defendant leave the car after the car had pulled into the gas station. Upon retestifying, McNair stated that he did, indeed, see defendant outside the car. McNair further testified that he did not see defendant with the jack in his hands and did not see defendant strike Robins.
Defendant was convicted and adjudged guilty of armed robbery, and sentenced pursuant to A.R.S. § 13-604.01. Defendant appealed the judgment of guilt and the sentence.
Prior to trial, defendant and co-defendant both filed motions to sever based upon the right to confrontation. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The motion to sever was renewed at the close of the state's case. At the hearings on both motions, defendant raised the issue of antagonistic defenses. The defendant has not pursued the Bruton confrontation question on appeal, but instead claims antagonistic defenses required severance.
Co-defendants' trials should be severed "if necessary to promote a fair determination of guilt or innocence of any defendant, or if the court detects the presence or absence of unusual features of the crime or case that might prejudice the defendant," State v. Cruz, 137 Ariz. 541, 543, 672 P.2d 470, 472 (1983) (citations omitted). Prejudice may result when "the competing defenses are so antagonistic at their cores that both cannot be believed." State v. Cruz, supra, at 545, 672 P.2d at 474. Accord, State v. Kinkade, 140 Ariz. 91, ---, 680 P.2d 801, 803 (1984), citing Cruz, supra; State v. McCall, 139 Ariz. ---, ---, 677 P.2d 920, 925 (1983). When the defenses are tangential rather than on a "collision course," severance is not necessary. Kinkade, supra.
It is natural that defendants accused of the same crime and tried together will attempt to escape conviction by pointing the finger at each other. Whenever this occurs the co-defendants are, to some extent, forced to defend against their co-defendant as well as the government. This situation results in the sort of compelling prejudice requiring reversal, however, only when the competing defenses are so antagonistic at their cores that both cannot be believed. Consequently, we hold that a defendant seeking severance based on antagonistic defenses must demonstrate that his or her defense is so antagonistic to the co-defendants that the defenses are mutually exclusive. Moreover, defenses are mutually exclusive within the meaning of this rule if the jury, in order to believe the core of the evidence offered on behalf of one defendant, must disbelieve the core of the evidence offered on behalf of the co-defendant.
State v. Cruz, supra, 137 Ariz. at 544-45, 672 P.2d at 473-74 (1983).
The co-defendants' defenses at the time the pretrial motion for severance was made were not mutually exclusive. McNair claimed that he had a lack of knowledge that the crime was committed and a lack of intent to commit the crime. Turner argued that he was not at the scene of the crime and was misidentified as Robins' assailant. These defenses are not mutually exclusive because it would have been possible for a jury to believe both of the defendants. See Cruz, supra, at 545, 672 P.2d at 474 (); State v. Druke, 115 Ariz. 224, 226, 564 P.2d 913, 915 (App.1977) (). The motion denying severance at this time was, therefore, proper. At trial both defendants shifted their defenses. However, the testimony still did not indicate antagonistic defenses. McNair, for example, gave the following testimony:
Q Did you see him being struck?
A No, I did not.
* * *
* * *
Q You saw a man laying on the ground but you didn't see anybody else, is that right?
A Yes.
Q You didn't see this gentleman right here, Nathaniel Turner, standing right there?
A No.
* * *
* * *
Q When you got back in your car, where was Nathaniel Turner sitting?
A He was in the front seat.
And the second time McNair testified:
Q Did you ever see Mr. Turner with the jack in his hand?
A No, I did not.
Q Did you see Mr. Turner strike Mr. Robins with the jack?
A No.
Q At any time?
A By the position that I was in I couldn't see him or the attendant.
Defendant took the stand and, while admitting he was at the station, denied he hit Robins and testified he did not see anyone else hit Robins.
This was not a case of "I didn't do it, the co-defendant did it," wherein for the jury to believe the core of the testimony one defendant offered they had to disbelieve the core of the testimony offered by the co-defendant. Such was the case in Kinkade, supra, where we held consolidation was error. This is a case where the jury could find the core of McNair's defense true and still find the core of defendant's defense true. The defenses were not mutually antagonistic. Admittedly, the defendant was unable to overcome Robins' eyewitness testimony identifying the defendant as the assailant. McNair's defense, however, did not detract from defendant's defense. As we have stated:
Indeed, the jury could have rationally accepted the defense theory of both, or only one, or of neither defendant. The defenses were not mutually exclusive. Consequently, the nature of the defenses did not require severance.
Cruz, supra, 137 Ariz. at 545, 672 P.2d at 474. We find no error.
Defendant alleges that the following instruction given by the trial court was in error:
If a witness has been convicted of a felony, that conviction does not necessarily mean that you cannot believe his testimony. A witness's...
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