State v. Wright
| Decision Date | 15 May 1967 |
| Docket Number | No. 1,CA-CR,1 |
| Parties | STATE of Arizona, Appellee, v. Marlene WRIGHT, Appellant. 24. |
| Court | Arizona Court of Appeals |
Darrell F. Smith, Atty. Gen., by James S. Tegart, Asst. Atty. Gen., for appellee.
Kaplan & Wilks, Phoenix, by Alan Jay Rubin and Anne Kappes, Associate Counsel, for appellant.
This is an appeal from a jury verdict and judgment of guilty to the charge of passing a check on 'no account' with intent to We are called upon to the determine:
defraud. § 13--316 A.R.S. Defendant also appeals from the denial of her motions for new trial based on newly discovered evidence.
1. Whether the court properly submitted evidence of defendant's inculpatory statements or acts to the jury.
2. Whether defendant's previous plea of guilty, later withdrawn by court permission, is properly admissible in the trial upon a plea of not guilty.
3. Whether the admission of evidence relating to the passing of other checks is admissible under the 'common scheme or motive' rule.
4. Whether the trial court properly denied defendant's motion for new trial based on newly discovered evidence.
The facts necessary for the determination of this matter on appeal are as follows. Defendant Marlen Wright was associated with Mancy McClannahan in a business enterprise called 'Candid Cartoons, Ltd.'. Defendant was the owner of the business and Nancy McClannahan was a bookkeeper and office manager. The business had an office in the City of Phoenix, Arizona, and was primarily in the field of commercial art and writing of advertisements.
Defendant allegedly wrote a series of checks on more than one account which were returned for reasons of 'not sufficient funds', and 'irregular signature', and 'account closed'. After an investigation by the Phoenix Police Department and after questioning of the defendant, at which time she initialed the checks she admitted signing, defendant was charged with passing two specific checks on no account contrary to § 13--316 A.R.S. The charge as to one check was dismissed at the close of the trial, and the charge as to the other check in the amount of $134.56 passed to the Bi-Lo Market was submitted to the jury. Concerning the latter check the store clerk and the store manager identified the defendant as the one passing the check which was made payable to Nancy McClannahan. The State's witness, an employee of Bi-Lo Market, stated the defendant had explained that Mancy McClannahan was her professional name and Marlene Wright was her real name; therefore she was able to endorse the check. Defendant allegedly passed other checks nad evidence concerning the cashing of these other checks was admitted in the trial on the basis of common plan or scheme.
Officer Ford of the Phoenix Police Department testified outside the presence of the jury that defendant initialed the check involved in this case and some of the others which were returned. He testified that defendant initialed the checks which she in fact had drawn or written and that she stated, .
Testimony was presented which indicated the statements and the act of initialing were freely given and the defendant was advised of right to counsel. After the testimony of Officer Ford and defendant on this point was concluded and the defense objected to the admission before the jury of the statement and acts of the defendant, the court ruled, after discussing the testimony at length:
The Courts in Arizona have made it clear that there must be an affirmative finding of voluntariness by the court before the evidence is admitted to the jury for its determination of credibility and voluntariness:
'At the conclusion of the hearing on voluntariness, the judge must make a In the instant case the record does not reveal a definite finding of voluntariness by the court. The trial court must make a definite determination whether the statement (exculpatory or inculpatory), confession or act was voluntary, and he may not submit it to the jury merely upon the finding that there is a conflict in the evidence. State v. Owen, 96 Ariz. 274, 394 P.2d 206 (1964), State v. Herman, 3 Ariz.App. 323, 414 P.2d 172 (1966). Were this the only question before us we would have caused the trial court to make this determination, if possible, before writing this opinion. See State v. Hunter, 5 Ariz.App. 112, 423 P.2d 727 (1967). There being other questions which the Supreme Court of Arizona may wish to consider before we remand the case to the trial court for determination of voluntariness, State v. Mileham, 100 Ariz. 402, 415 P.2d 104 (1966), we have decided to consider the other matters raised by the defendant.
definite determination whether the purported confession was voluntary or involuntary. Only if he makes a definite determination it was voluntary may he admit it for consideraton by the jury.' State v. Costello, 97 Ariz. 220, 222, 399 P.2d 119, 120 (1965), as quoted in State v. Goodyear, 100 Ariz. 244, 249, 413 P.2d 566 (1966).
The defendant, after charges were brought and at the arraignment before the Superior Court, and with her prior counsel, entered a plea of guilty to the charge. At the time set for sentencing the court allowed the defendant to withdraw the guilty plea and enter a plea of not guilty. During the trial the State elicited from the defendant, on cross-examination, evidence of this withdrawn guilty plea as follows:
'Q Isn't it true, that on that particular charge which you are now charged, Cause Number 43789, the check payable to Nancy McClannahan passed at the Bi-Lo Market, isn't it true that you already at one time entered a plea of guilty to that charge and then withdrew that plea?
'A Yes, that is true.'
No objection was made to the question by defense counsel. However, counsel did assign the admission of the evidence of the prior guilty plea as error in the motion for new trial. If this is error, it would be fundamental error which could be raised for the first time on appeal. People v. Brady, 14 A.D.2d 575, 218 N.Y.S.2d 705 (1961), State v. Pulliam, 87 Ariz. 216, 349 P.2d 781 (1960).
The Arizona Supreme Court in the case of Rascon v. State, 47 Ariz. 501, 512, 57 P.2d 304, 309 (1936) stated:
At the close of the cross-examination of the defendant the county attorney asked him this question: 'Isn't it a fact that heretofore, in this court, in this cause, you have entered a plea of guilty to first degree murder?' but the court, upon the objection of defendant's counsel, declined to permit him to answer it. The defendant contends, however, that the mere asking of the question prejudiced his rights before the jury and deprived him of a fair and impartial trial, though no authorities are cited upholding this position. The state, upon the other hand, takes the position that the question was proper and, this being true, that the answer, much less the mere asking of the question, could not have had any prejudicial effect. In support of this position it cites People v. Boyd, 67 Cal.App. 292, 227 P. 783, 787, in which the Supreme Court of California held that when a plea of guilty is withdrawn and one of not guilty substituted the fact that the defendant pleaded guilty is admissible, * * *. Hence, there was no error in the mere asking of the question and under the great weight of authority there would have been none in permitting the answer to it.'
Since Rascon v. State, supra, in 1936, the California Supreme Court, upon which our court relied, has held--though admittedly , People v. Quinn, 61 Cal.2d 551, 39 Cal.Rptr. 393, 393 P.2d 705, 708 (1964).
based in part upon a portion of the California Penal Code:
The State of Arizona is listed as one of several jurisdictions which allow the admission of evidence of a withdrawn plea of guilty at a subsequent trial under a substituted plea of not guilty, 86 A.L.R.2d 328, 329. It is apparent that a vast majority of the decisions in the United States today are to the contrary. As it has been stated by the New York court which had this question before it in 1961:
'Two years after this court decided People v. Steinmetz (240 N.Y. 411, 148 N.E. 597), supra, the United States Supreme Court in Kercheval v. United States, 1927, 274 U.S. 220, 47 S.Ct. 582, 584 (71 L.Ed. 1009), supra, unanimously gave a negative answer to the question of whether a plea of guilty withdrawn by leave of court is admissible against the defendant on the trial of the issue arising on a substituted plea of not guilty. The court's conclusion was that 'the weight of reason is against the introduction in evidence of a plea of guilty withdrawn on order of court granting leave and permitting the substitution of a plea of not guilty.' Justice Butler's opinion in Kercheval reasoned it out like this (274 U.S. at pages 223--224, 47 S.Ct. at page 583): 'A plea of guilty differs in purpose and effect from a mere admission or an extra-judicial confession; it is itself a conviction. Like a verdict of jury it is conclusive. * * * The court in exercise of its discretion will permit one accused to substitute a plea of not guilty and have a trial...
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State v. Wright
...Chief Justice: This case came to us on a petition for review of the decision of the Court of Appeals, Division 1, reported at 5 Ariz.App. 357, 427 P.2d 338 (1967). The American Civil Liberties Union filed a brief amicus curiae in support of defendant-appellant's position. We granted the pet......