STATE of Arizona, Appellee, v. John Tim ALLIE, Appellant.
No. 6233.
Supreme Court of Arizona, En Banc.
Nov. 15, 1985.
710 P.2d 430
D. Jesse Smith, Tucson, for appellant.
HAYS, Justice.
After a jury trial, defendant, John Tim Allie, was convicted of one count of burglary in the first degree,
The facts follow. On March 5, 1983, at approximately 11:45 pm, defendant and his accomplice, James Bushey, robbed a Shakey‘s Pizza Parlor in Tucson, Arizona. Both men wore masks. Defendant was armed with a knife and Bushey had a gun. The two men forced the employees to lie on the floor and then bound them with tape. Defendant and his accomplice proceeded to take between $2,000 and $2,500 before fleeing the restaurant.
After several weeks of investigation, the police obtained the confession of Michael Hart, an employee working at the restaurant that night. Hart admitted that he had been the “inside man” in the robbery and had only pretended to be a victim. Hart also identified defendant and Bushey as the two men who robbed the restaurant.
Defendant raises several issues on appeal.
I. CONSTITUTIONALITY OF A.R.S. § 13-604.01
Defendant raises numerous issues regarding the constitutionality of
A. Ex Post Facto
Defendant claims that
We recognize that the Arizona Legislature may not enact a law which imposes any additional or increased penalty provided for a crime after its commission. (Citations omitted).
State v. Cocio, 147 Ariz. 277, 709 P.2d 1336 (1985). Defendant has presented nothing to warrant reassessment of our position.
B. Equal Protection
Defendant also argues that
The legislature could rationally conclude that a felon who commits an armed offense recently after release from confinement for another felony, and in violation of the conditions of this release from confinement, has simply not been rehabilitated. . . . It is also rational to protect the public by deterring felons on release from confinement from committing armed offenses.
Id., State v. Williams, 144 Ariz. 433, 444, 698 P.2d 678, 689 (1985). Therefore, we find that the statute does not violate the basic concepts of equal protection.
C. Cruel and Unusual Punishment
Defendant also maintains that his sentence constitutes cruel and unusual punishment under the eighth and fourteenth amendments to the
It should be noted that this court recently engaged in such an analysis in two similar cases and upheld the sentence in each instance. State v. McNair, 141 Ariz. 475, 687 P.2d 1230 (1984); State v. Noriega, supra.
First, as to the gravity of the offense, we find that defendant‘s crimes were sufficiently serious to warrant increased punishment. Appellant places emphasis on the fact that this was an “inside job” so that the “ordinary dangers attendant on a garden variety armed robbery were not present.” Specifically, appellant claims that he and his accomplice, knowing there would be no resistance from the employees, never actually placed the victims in any danger. Furthermore, appellant claims that he carried only a knife, not a gun (his accomplice carried a gun). He maintains that since “guns are more dangerous than knives,” the punishment should be less severe. We find defendant‘s attempt to distinguish the crime herein from a “garden variety” armed robbery unpersuasive. This court has repeatedly held that the “absence of actual injury is scarcely an accurate measure of the danger appellant poses to society.” State v. Noriega, 142 Ariz. at 487, 690 P.2d at 788. Even though no physical injuries were suf-
Second, the sentence imposed upon defendant is not unconstitutionally harsh. Where there is a legislatively prescribed penalty, we do not determine whether it is fair in our eyes; rather, we need only consider if it violates the eighth amendment as being unduly harsh. State v. Garcia, 141 Ariz. at 100, 685 P.2d at 737. In both McNair and Noriega, supra, we did not find the life sentences imposed to be excessive where both defendants were repeat offenders convicted of dangerous crimes while on probation. These same factors are present here. Defendant was convicted of armed robbery and burglary and was on probation from two prior felony convictions at the time he committed the crimes herein.
Third, we compare defendant‘s sentence to those for other or similar crimes in this jurisdiction. Life sentences imposed under
Fourth, defendant‘s sentence is proportional to sentences imposed on similarly situated criminals in other jurisdictions. For example, a first conviction for armed robbery may result in a six to forty year sentence in Arkansas (
Finally, defendant raises two other points in connection with his eighth amendment argument. First, defendant maintains that
Second, defendant urges that the portion of
D. Separation of Powers, Bill of Attainder, Right to Allocution
Defendant next claims that since
First, in State v. Faunt, 139 Ariz. 111, 113, 677 P.2d 274, 276, (1984) this court specifically held that
Second,
Third, defendant maintains that the life sentence dictated by
Defendant‘s final attack on the constitutionality of
There is a limit as to the range of consequences that follows from a plea of guilty that must be told to the defendant at the time of the plea. Defendant need only be told the immediate consequences of his plea. The court need not assume that defendant is contemplating a later murder when the plea of guilty is entered so as to require that he tell him if he does commit the murder the felony to which he is pleading guilty could cause the death penalty to be imposed.
State v. Watson, 120 Ariz. 441, 448, 586 P.2d 1253, 1260, cert. denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979). The same is true for
We find no constitutional infirmities in
II. JURY INSTRUCTIONS
The trial court, in voir dire of the jury and its final instructions, stated that the jury should not consider punishment, as sentencing is a matter left solely to the trial court‘s discretion. Defendant complains that since this case involved a mandatory sentence, and not a discretionary one, the effect of the statement was to lull the jurors into convicting the defendant on weak evidence in the expectation that the court would then impose a light sentence.
Defendant raises this issue for the first time on appeal. Thus, any error concerning the instruction is waived absent a finding of fundamental error. State v. Grilz, 136 Ariz. 450, 454, 666 P.2d 1059, 1063 (1983). We find no such fundamental error.
In Arizona, the trial court, not the jury, determines matters of punishment. The jury‘s function is to determine the guilt or innocence of a party without consideration of the possible sentence. State v. Tims, 143 Ariz. 196, 198, 693 P.2d 333, 335 (1985). Where an instruction merely advises the jury not to consider the possible punishment and neither directly nor indirectly suggests that defendant, if convicted, would be treated with leniency, there is no significant danger of prejudice. State v. Koch, 138 Ariz. 99, 105, 673 P.2d 297, 303 (1983).
In the instant case, the court‘s instruction only advised the jury not to consider the possible sentence. The court neither told the jury the range of sentences available nor suggested that he would impose a light sentence if defendant were convicted. Furthermore, there is no indication that the instruction induced the jury to reach a compromise verdict. Likewise, we find no merit in defendant‘s argument that the instruction implied that a “right of jury nullification,” or right to acquit a defendant regardless of the facts or law, would be exercised by the court through its sentenc-
III. IMPEACHMENT BY PRIOR CONVICTION
After conducting a pretrial hearing on this issue, the trial court ruled that defendant‘s two prior felony convictions would be admissible to impeach him if he took the stand on his own behalf. Defendant therefore chose not to testify. He claims that his right to testify outweighs the possible probative value of admitting his prior convictions, especially when combined with the risk that the jury would not respond to a limiting instruction. For these reasons, defendant urges this court to adopt the rule in State v. Santiago, 53 Hawaii 254, 492 P.2d 657 (1971), and altogether preclude impeachment of a defendant with his prior convictions. We need not reach this issue as we find the defendant did not properly preserve it for appeal.
In State v. Barker, 94 Ariz. 383, 386, 385 P.2d 516, 518 (1963), this court held that a defendant who did not testify at trial could not challenge an adverse pretrial ruling allowing a prior conviction to be admitted. This court said:
The State argues that there is nothing before this Court on which to predicate a reversal of the trial court, that having received this adverse ruling appellant should have proceeded with his case by taking the stand then raising the question if the State attempted to establish the prior conviction. . . .
A trial judge cannot be compelled to rule on a motion in advance of the submission to him of all of the pertinent facts which may be later developed. A defendant‘s rights are fully protected by this procedure.
Id. Although this rule is well settled in Arizona, we proceed further in order to clear up some confusion that has arisen in the lower courts concerning this issue.
In State v. Ellerson, 125 Ariz. 249, 609 P.2d 64 (1980), overruled on other grounds, State v. Fettis, 136 Ariz. 58, 664 P.2d 208 (1983), and State v. Noble, 126 Ariz. 41, 612 P.2d 497 (1980), this court was presented with a variation on the Barker rule. In both cases the trial court denied defendant‘s motion to preclude use of his prior convictions for impeachment purposes. Thereafter, each defendant attempted to minimize the effect of this ruling by taking the stand and admitting the prior convictions. The issue then became whether defendant, by “drawing the sting” on direct examination, waived his right to appeal the prior ruling. We held that there was no waiver. State v. Ellerson, 125 Ariz. at 251, 609 P.2d at 66; State v. Noble, 126 Ariz. at 42, 612 P.2d at 498. In doing so, we adopted the rationale of United States v. Cook, 608 F.2d 1175 (9th Cir. 1979), cert. denied, 144 U.S. 1034, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980), that a defendant should not lose his right to appeal solely because he altered his trial strategy after receiving an adverse ruling on a pretrial motion. Id. Our adoption of the Ninth Circuit‘s logic was limited to the facts before us. Neither Ellerson nor Noble dealt with the proposition that a defendant can alter his trial strategy by not taking the stand and still preserving his right to appeal. Those courts which have mistakenly relied on them for that purpose have extended the holdings past their intended meaning. See, e.g., State v. Wilson, 128 Ariz. 422, 626 P.2d 152 (App.1981). The intent of this court in those cases was to hold that a defendant who takes the stand can “draw the sting” of prior convictions without waiving his right to appeal. Thus, the rule in Arizona remains that a defendant must take the stand before he can challenge an adverse pretrial ruling allowing prior convictions to be admitted for impeachment purposes.
Our holding today is similar to that in Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). Thus, defendant did not properly preserve the matter of impeachment for appeal.
IV. FAILURE OF DEFENDANT TO TESTIFY
Defendant argues that the trial court failed to establish on the record that
It is well established that in a criminal prosecution an accused has the right to testify in his own behalf.
In the instant case, defendant‘s counsel deemed it best to keep defendant off the witness stand. There is no evidence in the record or in his brief that defendant desired otherwise. Had he wanted to testify, defendant had several opportunities to make this known to the court. State v. Tillery, 107 Ariz. at 37, 481 P.2d at 274, cert. denied, 404 U.S. 847, 92 S.Ct. 151, 30 L.Ed.2d 84 (1971). Thus, a sua sponte inquiry by the trial court as to whether a defendant desires to testify is neither necessary nor appropriate. Accordingly, we find that defendant, not having made his objection known at trial, cannot now be heard to complain.
V. OTHER ISSUES
Defendant finally raises two other issues on appeal. First, defendant claims that on two occasions the prosecutor improperly made himself an unsworn witness, thereby denying defendant a fair trial. The first instance occurred during the redirect examination of witness Michael Hart, the “inside man” in the robbery. Defendant claims that the prosecutor improperly sought to elicit testimony from Hart that the prosecutor had made no promises to Hart concerning whether or not he was still subject to prosecution for his role in the robbery. Defendant failed to object to these questions below and therefore has waived this issue absent a finding of fundamental error. State v. Thomas, 130 Ariz. 432, 435, 636 P.2d 1214, 1217 (1981). We find no such error. The purpose of the prosecutor‘s questions was to rehabilitate Hart‘s credibility after it had been attacked on cross-examination. Defendant‘s claim that by doing so, the prosecutor put his own credibility at issue is without merit. Thus, we find the prosecutor‘s questions proper.
The second instance in which defendant alleges that the prosecutor improperly became a witness occurred during closing arguments. In his argument, the prosecutor asked the jurors to estimate mentally the prosecutor‘s height. He then told the jurors his true height, attempting to demonstrate how estimates can differ from reality. The purpose of this argument was to rebut defense claims that inconsistencies in estimates of defendant‘s height by state witnesses rendered their testimony unreliable.
Defendant relies on State v. Williams, 136 Ariz. 52, 664 P.2d 202 (1983), for the proposition that prosecutors may not become witnesses in cases they are prosecuting. We find that Williams is inapposite here. In Williams, this court warned that attorneys should be careful not to prosecute cases in which they may be a material witness on some issue. State v. Williams, 136 Ariz. at 57, 664 P.2d at 207. We noted that the usual cases concern attorneys testifying to the admissibility of a confession or the testimony of a defendant. Id. In the instant case, we do not believe that the prosecutor‘s statement regarding his height made him a material witness in the case. Nor do we find that the trial court abused its discretion in determining that there was no prejudicial effect.
Finally, defendant claims that three references to drug and alcohol use were made despite the trial court‘s prior ruling on a motion in limine. Defendant asserts that the court‘s denial of his motion for a mistrial on each occasion was an abuse of discretion. Before we consider the merits
Defendant‘s first claim is that during voir dire the trial court erred when it told prospective jurors that evidence concerning drug and alcohol abuse by persons involved might surface. Defendant asserts that this reference to drug usage was improper. This court has stated that in conducting voir dire, the trial court may outline the nature of the case and ask prospective jurors any questions necessary to test their qualifications.
Second, defendant complains that the prosecutor, during his opening statement, remarked that “a good time was had by all” at a party following the robbery. Defendant claims that this statement, plus a later reference to drug usage by state witnesses, implied to the jury that defendant was also using drugs. Defendant claims that the trial court should have granted a mistrial at this point.
The decision to grant a mistrial is left to the sound discretion of the trial court and, absent an abuse of discretion, its ruling will not be reversed. State v. Christensen, 129 Ariz. 32, 38, 628 P.2d 580, 586 (1981). In the instant case, the prosecutor‘s statements were not so closely connected with the defendant as to result in a material impact on the jury. Defendant did not request a curative instruction, and we find no error in the failure to grant a mistrial.
Finally, defendant alleges that the testimony of Louis Cunningham concerning his own drug and alcohol use again implied that defendant was also using these substances.
It is well settled that the failure to object to testimony at trial waives the issue on appeal. State v. Thomas, 130 Ariz. at 435, 636 P.2d at 1217. Thus, by failing to make a timely objection, defendant has again waived this issue absent fundamental error. Id.
We find no fundamental error. As before, the connection between Cunningham‘s testimony and the defendant‘s use or nonuse of drugs and alcohol is tenuous. Contrary to defendant‘s position, we believe that any inferences drawn by the jury would not be so prejudicial as to deny defendant a fair trial.
VI. RULE 32
In addition to the issues raised on direct appeal, defendant filed a petition for postconviction relief claiming a double jeopardy violation.
After waiving his right to a jury trial on the prior convictions, defendant admitted to the court that he was on probation for two prior felony convictions at the time he committed the offenses herein. The court made the appropriate finding and imposed a mandatory life sentence on each count as required by
We do not reach the issue of double jeopardy as we find that defendant‘s admissions were not defective. When a trial court accepts a guilty plea, this court has held that the possibility of receiving consecutive sentences is not a special condition of sentencing that must be told to the defendant at the time of the plea. State v. Denney, 130 Ariz. 128, 130, 634 P.2d 579, 581 (1981). The defendant must be presumed to be aware of the obvious consequences of separate punishments for separate crimes. State v. Gordon, 125 Ariz. 425, 427, 610 P.2d 59, 61 (1980). We find that the same logic applies where a defendant admits to being on probation for purposes of
As the trial court‘s determination that defendant was on probation at the time he committed the present offenses was supported by reasonable evidence in the record, we find that application of
We have reviewed the record for fundamental error and have found none.
The judgment and sentences are affirmed.
HOLOHAN, C.J., GORDON, V.C.J., and CAMERON, J., concur.
FELDMAN, Justice, specially concurring.
I concur in the result and with all portions of the opinion except that pertaining to the application of