485 P.2d 841 | Ariz. Ct. App. | 1971
Appellant, Edwin Miguel, and one Perkins Scott were charged by separate informations with burglary, first degree, and grand theft. For reasons not here pertinent, the Maricopa County Public Defender, attorney for both defendants, moved to consolidate their cases for trial. The motion was granted, and the trials consolidated. After a jury trial, appellant Miguel was convicted of burglary, first degree, and petty theft, receiving a sentence of not less than five years nor more than ten years on the burglary conviction.
On appeal from this conviction and sentence, Miguel raises questions concerning (1) the admissibility of an extrajudicial statement made by co-defendant Scott which allegedly incriminated Miguel; (2) the denial of effective assistance of counsel due to a conflict of interest between himself and his co-defendant Scott; (3) the admittedly unintentional conduct of the prosecution in attributing Scott’s extra-judicial statement to Miguel; and (4) the sufficiency of the evidence to support a conviction of burglary and theft.
The relevant facts are as follows:
On December 23, 1968, the home of Clarence and Irene Smith was burglarized. Among the items later discovered to be missing were an iron and a battery operated radio. The following day, the Smiths were at the Kay Gonzalez Washer Repair Store in Mesa, Arizona. There, Mrs. Smith observed co-defendant Scott attempting to sell an iron which Mrs. Smith recognized as the iron taken in the burglary of her home the previous night. Earlier that same day, Gonzalez had purchased a battery operated radio from the appellant Miguel, which was later identified as the one taken in the burglary of the Smith residence.
Considering first Miguel’s contention concerning the admissibility of co-de-
fendant Scott’s extra-judicial statement, Scott made the statement to the police that he had received the iron in question from some people in a green 1957 Chevrolet immediately before entering Gonzalez’ shop to sell it. Appellant Miguel contends that such an improbable explanation for being in possession of stolen property tends to make the statement inculpatory, although offered by Scott in an attempt to exculpate himself from the crimes under investigation. Miguel next argues that the admission of this statement into evidence at trial violated his sixth amendment right to confront witnesses against him contrary to Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Bruton, the United States Supreme Court held that the admission into evidence of an extra-judicial confession of a non-testifying co-defendant that inculpates another non-declarant defendant constitutes reversible error as to the non-declarant defendant. The constitutional underpinning for the decision is the resulting denial to the non-declarant defendant in a criminal matter of his right to confront the witnesses against him, which arises when the non-declarant defendant is precluded from dispelling on cross-examination the prejudice contained in such a confession by the declarant-co-defendant’s election not to testify. Morever, the court considered the prejudice so grave as not to be cured by the clearest and most explicit limiting instructions to the jury to disregard the extra-judicial confession in determining the guilt or innocence of the non-declarant defendant. Arizona has adhered to the doctrine established in Bruton. State v. Taylor, 104 Ariz. 264, 451 P.2d 312 (1969). However, in applying the Bruton doctrine to the case at bar, we find that the extrajudicial statement here involved, even if construed as inculpatory to Scott, fails to make even the most oblique reference to the appellant Miguel, cf. State v. Taylor, supra, 104 Ariz. at 267, 451 P.2d at 315, and therefore cannot possibly link Miguel to any inference of guilt which may be drawn therefrom. The statement was
Nor do we find. any support for Miguel’s second contention that he was denied the effective assistance of counsel due to a conflict of interest arising in trial. It is settled in Arizona that before a defendant is entitled to a new trial for reason of a conflict of interest between co-defendants, it is necessary to show “there was indeed a conflict of interest between himself and his co-defendants, and that by virtue of that conflict his own cause, in some way, was prejudiced.” (Emphasis supplied). State v. Pickard, 105 Ariz. 219, 221, 462 P.2d 87, 89 (1969). See also State v. Daugherty, supra, 12 Ariz.App. at 368, 470 P.2d at 688. Here, Scott did testify. He did not accuse or inculpate Miguel, and he told a story essentially the same as the one thereafter testified to by Miguel. There is no showing of a conflict of interest, and appellant’s contention on this issue is without merit.
Appellant’s next contention concerns the unintentional conduct of the prosecutor in attributing Scott’s extra-judicial statement to Miguel during summation. The prosecutor directed a remark to the jury that “they”, referring to both defendants, “lied” to the police the day after the burglary. The court thereupon gave the following admonition to the jury:
“The Court: Ladies and gentlemen, in listening to the closing argument of the prosecutor, in the event you interpreted him to say that ‘they’ referring to both defendants, lied to the police officer the next day, you are instructed to disregard that because there no testimony that the defendant Miguel said anything the next day to the police officers.”
The above-quoted admonition was explicit, and could not have been other than fully understood by the jury. As the court in Bruton observed, it is the rare, rather than the common, situation where an inadmissible statement could not be cured by a proper limiting instruction.
“Not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently. ‘A defendant is entitled to a fair trial hut not a perfect one.’ ” (Emphasis supplied). (Citations omitted). Bruton v. United States, supra, 391 U.S. at 135, 88 S.Ct. at 1627.
The judgment is affirmed.
Note-. Judge WILLIAM. E. EUBANK having requested that he be relieved from consideration of this matter, Judge ROBERT C. BROOMFIELD, of the Superior Court, was called to sit in his stead and participate in the determination of this decision.
