State v. Zaragosa

• Decision Date: 28 July 1967
• Docket Number: CA-CR,No. 1,1
• Citation: 6 Ariz.App. 80,430 P.2d 426
• Parties: STATE of Arizona, Appellee, v. Ruben C. ZARAGOSA, Appellant. 124.
• Court: Arizona Court of Appeals

Page 426

430 P.2d 426

6 Ariz.App. 80

STATE of Arizona, Appellee, v. Ruben C. ZARAGOSA, Appellant.

No. 1 CA-CR 124.

Court of Appeals of Arizona.

July 28, 1967.

Darrell F. Smith, Atty. Gen., by Carl Waag, Asst. Atty. Gen., for appellee.

Vernon B. Croaff, Public Defender, by Grant Laney, Deputy Public Defender, for appellant.

CAMERON, Chief Judge.

This is an appeal from a jury verdict and judgment of guilt to the crime of grand theft (auto). A.R.S. §§ 13--661 and 13--663. We are called upon to determine the admissibility of certain hearsay evidence and the correctness of the court's instruction to the jury concerning defendant's failure to testify at the trial.

The facts necessary for a determination of this matter on appeal are as follows. On 9 August 1966 Charles Compton noticed his 1961 pick-up truck was missing from the front of his home in Cashion, Arizona. Compton drove his automobile in search of the truck and located it in Tolleson as it was pulling away from the curb with two men in the cab. He drove his car alongside the truck and shouted to the driver to pull to the curb. The driver speeded up and pulled away from the car. Compton

took a shotgun he had in the front seat of the car and thrust it out the window and fired two or three shots in the air in an effort to attract the local police. The truck sped off and Compton gave chase. As the truck was crossing the Agua Fria Bridge, the truck hit the guard rail, backed up and hit the guard rail a second time, and then rolled down the embankment into a ravine. The driver got out of the truck and ran up to Compton who held him prisoner with his shotgun until the police officers came. The second man in the truck ran away and was never arrested. The driver was arrested and tried in the Superior Court on the charge of grand theft which resulted in a mistrial. A second trial was held, he was convicted, and he brings this appeal.

THE ADMISSIBILITY OF THE HEARSAY TESTIMONY

Defendant first objects to the admission of the testimony by the Deputy Sheriff concerning the identification of the defendant by 10 year old Leon Camp, Jr. At the trial Leon testified as follows on cross-examination:

'Q: Leon, you came here once before and testified, did you not?

'A: Yea.

'Q: And at that time when the County Attorney asked you if you remembered who the man was that you saw at the bridge, you answered him by saying you could not remember; isn't that correct?

'A: Yes, but after, at the bridge, then I remembered; but now I can't remember.'

The arresting officer was allowed to testify over defense objections as follows:

'As I stated, I was advised that young Mr. Camp had observed the person who had taken the vehicle. Myself and Officer Gunn of the Sheriff's office had taken young Mr. Camp to the vehicle in which the defendant was in at that time and was asked if that was the person he had seen and he saw get into the vehicle and he stated it was the same person he saw had taken the truck.'

The State argues that the testimony of the Deputy Sheriff was admissible as an exception to the hearsay rule because the statement of the child, Leon Camp, Jr., formed a part of the res gestae and was a spontaneous utterance. With this we cannot agree. We have discussed this matter in the case of State v. Villalobos, 6 Ariz.App. 144, 430 P.2d 723 (1967), decided this day. In that case we set forth requisites that must be proved before a statement can be admitted into evidence as an exception to the hearsay rule. These are:

(1). There must be a startling event.

(2). The words must be spoken soon after the event so as not to give the person speaking the words the time to fabricate.

(3). The words spoken must relate to the startling event.

It is the opinion of the Court that these tests were not met by the facts in the instant case.

The State further contends that the Officer's testimony came under the exception to the hearsay rule as an extrajudicial identification:

'* * * the rule now prevailing in most jurisdictions in which the question has been fully considered, subject to the qualifications and exceptions noted, is that the prior identification may be shown by the testimony of the identifier or identifying witness, or by the testimony of the third person to whom or in whose presence the identification was made, where the identifier has testified or is present and available for cross-examination at the trial, not as original, independent, or substantive proof of the identity of the defendant as the guilty party, but in corroboration of the testimony of the identifying witness, at the trial, as to the identity of the defendant.' Annotation, 71 A.L.R.2d 449, 453.

This statement of the law has been followed in Arizona in State v. Miranda, 98 Ariz. 11,

401 P.2d 716 (1965), citing with approval the case of People v. Gould, 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865 (1960). In the cases we have read supporting this proposition the identifier has made a positive identification at the trial itself or the prosecution has been surprised by the failure of the witness to identify a defendant previously identified (71 A.L.R.2d, § 17, page 491). We have found no cases as in the instant case where the witness is unable to testify positively as to the identity of the defendant at the trial. We do not believe that the recent Arizona Supreme Court case of State v. Taylor, 99 Ariz. 151, 407 P.2d 106 (1965), applies in this case, and it was error to admit the testimony of the police officer concerning the prior extra-judicial identification by the 10 year old witness.

INSTRUCTION TO THE JURY

The second question raised by the defendant concerns the instruction to the jury by the court on the failure of the defendant to take the witness stand. The instruction complained of reads as...