State v. Williams

Decision Date17 April 1985
Docket NumberNo. 6043,6043
Citation698 P.2d 678,144 Ariz. 433
PartiesSTATE of Arizona, Appellee, v. Johnny WILLIAMS, Jr., aka John Hudson, Appellant.
CourtArizona Supreme Court

Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Crane McClennen, Asst. Attys. Gen., Phoenix, for appellee.

Robert C. Brown, Casa Grande, for appellant.

HOLOHAN, Chief Justice.

On September 14, 1983, Johnny Williams Jr. was convicted of armed robbery committed while on parole in violation of A.R.S. §§ 13-1904 and 13-604.01, and was sentenced to a mandatory term of life imprisonment without possibility of release for twenty-five years. We have jurisdiction to hear this appeal pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 13-4031. The judgment of conviction is affirmed. The case is remanded for resentencing.

Appellant raises seven issues on appeal:

(1) Was appellant's record of prior felony convictions admissible for impeachment purposes?

(2) Was permitting identification testimony at trial by two witnesses error?

(3) Was the denial of appellant's request for a continuance error?

(4) Should an alibi witness for a co-participant in the crime have been allowed to testify? (5) Was the state's amendment of its allegation of prior convictions untimely?

(6) Should documentary evidence of appellant's parole status have been admitted at the sentencing trial?

(7) Does A.R.S. § 13-604.01 violate the equal protection clause of the fourteenth amendment to the United States Constitution or the prohibition against cruel and unusual punishment of the eighth and fourteenth amendments to the United States Constitution?

FACTS

On June 18, 1983, at about 8:30 p.m., Detective David Churchill of the Casa Grande Police Department was on patrol in an unmarked police car. He saw two black males leaning around the corner of a building and looking into the window of a convenience store. The two walked away and got into a white automobile driven by a third man. Detective Churchill followed them. He was caught at a red light and momentarily lost sight of them; he then made a turn and saw the car go past him with only the driver in it. As he followed the car around the block he saw the same two black males standing at the side of a building containing the Island Liquors store. He radioed for other units to come to that area and continued following the white car.

That evening, Dee Lane Lowe was working at Island Liquors. She testified that between 8:30 and 9:00 p.m. two black males, one of whom she later identified as the appellant, entered the store. Appellant bought a pack of cigarettes. The other man pulled out a knife and grabbed John Martin, Miss Lowe's boyfriend. One of them said: "This is a holdup." Lowe then saw that appellant was pointing a gun at her. Appellant grabbed money and checks out of the cash register and ran out of the store with his accomplice. Miss Lowe then called the police and reported the robbery.

Detective Churchill, still following the white car, heard a loud whistle. The white car stopped and the driver got out. The detective got out of his car and heard the sound of people running. He pulled out his gun and saw two men running toward him. When the two saw Churchill, one of them yelled an expletive and both turned around and ran away. Detective Churchill then arrested the driver of the white car.

Meanwhile, Sgt. Vasquez arrived and Detective Churchill sent him off after the other suspects. Several minutes later, Vasquez saw a black male wearing a dark shirt running across the street and into an alley in a residential neighborhood. At trial he identified this person as appellant. Sgt. Vasquez got out of his car and chased him. During the chase, Vasquez observed appellant throw away two objects which were later found to be a small silver colored handgun and a wad of money and checks made out to Island Liquors. Sgt. Vasquez and Officer Ellsworth apprehended appellant and placed him under arrest. Appellant was then brought back to Island Liquors where he was identified by Miss Lowe and Mr. Martin as one of the two people who robbed the store.

ADMISSION OF PRIOR FELONY CONVICTIONS

Appellant contends that the trial court erred in authorizing the state to use two prior felony convictions to impeach him if he testified.

Rule 609, Arizona Rules of Evidence, 17A A.R.S. permits the court to admit evidence of a prior felony conviction to impeach a defendant if the court determines that the probative value of the evidence outweighs its prejudicial effect. The state bears the burden of proof in establishing the admissibility of prior convictions for impeachment purposes. State v. McNair, 141 Ariz. 475, 486, 687 P.2d 1230, 1241 (1984). It must first show the existence of the conviction either by an admission from the defendant or by public record. Rule 609(a), Arizona Rules of Evidence, 17A A.R.S. The state must further show that the prior conviction is somehow probative of the veracity of the witness. Id. Appellant does not contest the existence of prior felony convictions, but he maintains that the state must do more than simply show that the prior felony convictions exist in order to meet its burden of proving probativeness. Appellant asserts that State v. Ellerson, 125 Ariz. 249, 252, 609 P.2d 64, 67 (1980), requires the state to make a showing of the "circumstances surrounding the admission of the evidence" and that mere presentation of the date, nature, and place of the conviction is insufficient.

Our discussion in State v. Malloy, 131 Ariz. 125, 639 P.2d 315 (1981), decided after Ellerson, makes clear that "circumstances" need not be shown in all cases involving prior felony convictions. In Malloy, we stated:

[A]ll felonies have some probative value in determining a witness' credibility upon the theory that a major crime entails such an injury to and disregard of the rights of other persons that it can reasonably be expected the witness will be untruthful if it is to his advantage. The perpetrator of a major criminal act has demonstrated such a lack of scruples as to show a willingness to give false testimony.

Id. at 127, 639 P.2d at 317; see also State v. Perkins, 141 Ariz. 278, 285, 686 P.2d 1248, 1255 (1984). Generally, in cases involving prior felony convictions, the state need only come forward with the date, place, and nature of the prior conviction in order to satisfy its initial burden of showing probative value.

Once the state establishes probativeness, the defendant is "permitted to rebut the State's showing of relevancy by pointing out the prejudicial effect ...." State v. Sullivan, 130 Ariz. 213, 217, 635 P.2d 501, 505 (1981). If the defendant's evidence of unfair prejudice successfully counters the probativeness of veracity inherent in any prior felony conviction, the state will need to present additional evidence of probative value to sustain its burden of proof under Rule 609.

The trial court may find it necessary to have more information in order properly to "determine[ ] that the probative value of admitting [the] evidence outweighs its prejudicial effect." Rule 609(a), Arizona Rules of Evidence, 17A A.R.S. The court should never hesitate to require the parties to present more information to aid in the balancing. In Ellerson we quoted State v. Mahone, 537 F.2d 922, 929 (7th Cir.), cert. denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976):

"The hearing need not be extensive.... [T]he judge should require a brief recital by the government of the circumstances surrounding the admission of the evidence, and a statement of the date, nature and place of the conviction. The defendant should be permitted to rebut the government's presentation, pointing out to the court the possible prejudicial effect to the defendant if the evidence is admitted."

Ellerson, 125 Ariz. at 252, 609 P.2d at 67. Mahone lists several factors which the trial judge should take into account: impeachment value of the prior, length of time since the prior conviction, the witness' history since the prior conviction, the similarity between the past and present crimes, the importance of defendant's testimony, and the "centrality of the credibility issue." Mahone, 537 F.2d at 929; see also State v. Domme, 111 Ariz. 464, 465, 532 P.2d 526, 527 (1975). Although the foregoing factors are not to be considered exclusive of any others, they do provide useful guides for the trial court.

The record of the pretrial hearing indicates that the parties did not address in any detail the probativeness or prejudice of the evidence in this case. The parties instead argued whether felonies are inherently probative of veracity and whether the state had met its initial burden of proof. The only evidence of prejudicial effect offered by the defendant was that "there is always prejudice inherent in impeaching any person with a prior conviction" and that one of the prior offenses was similar to the crime charged in the instant case. As correctly noted by the state, it is not per se prejudicial to use a prior conviction of the same crime for impeachment purposes. Perkins, 141 Ariz. at 285, 686 P.2d at 1254.

The trial court stated that "[a]t this time the Court finds and determines that the probative value of the prior convictions outweighs their prejudicial effect...." The decision whether to admit evidence of prior convictions for impeachment purposes is left to the sound discretion of the trial judge. State v. McElyea, 130 Ariz. 185, 188, 635 P.2d 170, 173 (1981). We will disturb a trial court's finding in this area only on a showing that the trial judge abused this discretion. State v. Bojorquez, 138 Ariz. 495, 499, 675 P.2d 1314, 1318 (1984). Based on the record before us we are unable to conclude that the trial court abused its discretion.

Appellant further contends that the trial judge's failure to make specific findings of facts on the balancing of probative value and prejudicial effect is reversible error. Our cases require a...

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