State v. Gortarez

442 P.2d 83, 103 Ariz. 339, 1968 Ariz. LEXIS 265
CourtArizona Supreme Court
DecidedJune 19, 1968
DocketNo. 1794
StatusPublished
Cited by2 cases

This text of 442 P.2d 83 (State v. Gortarez) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gortarez, 442 P.2d 83, 103 Ariz. 339, 1968 Ariz. LEXIS 265 (Ark. 1968).

Opinion

UDALL, Vice Chief Justice:

This is an appeal by the defendant-appellant from judgments of conviction and sentences for three counts of robbery and two counts of kidnapping, and from the court’s order denying defendant’s motion for a new trial.

An information was filed in the Superior Court of Maricopa County, Arizona, on March 16, 1966, charging the defendant with the crimes of robbery, Counts I, II, and III; and with kidnapping, Counts IV and V. The trial of the cause began on February 7, 1967 and on the following day the defendant was found guilty on each of the Counts by the Jury, as charged in the information.

Defendant was sentenced to the State Penitentiary at Florence, Arizona for not less than eight nor more than ten years on each of the three counts of robbery, all of which were to run concurrently. In addition it was ordered that defendant be confined to the State Penitentiary for a period of not less than one nor more than five years on each count of kidnapping.

The facts and circumstances connected with the commission of the alleged crimes were substantially as follows: On December 4, 1965, defendant and his accomplice broke into the residence of Gloria June McCarthy, located at 228 N. 14th Street in Phoenix, Arizona, and took her wedding ring and two or more small coins from her person. On the same date, in the vicinity of 1224 E. Hubbell, Phoenix, Arizona, the defendant kidnapped and robbed Kenneth D. Carpenter and Larry David Lee.

The first three questions raised by the defendant upon which he bases his allegations of error will be treated together. First, it is claimed that the robbery victim, Mrs. McCarthy, by reason of an insufficient amount of lighting at the time of the alleged robbery could not have made a valid [341]*341identification of the defendant; second, the arrest of appellant was illegal and the items obtained by an incidental search, as well as the testimony concerning the same, were inadmissible at the trial; and third, the “in court” identification of the defendant was based upon a lineup identification which the defendant alleges was improperly conducted.

In reference to defendant’s first contention the victim testified that she could see the defendant and his accomplice when they were on the outside of her house ; that the light from the streetlights enabled her to clearly distinguish the appearance of the two men on the outside and later to identify them after they had broken into the house, when most of the lights inside were turned off. She testified as follows:

Q “Outside of those two lights there was no other lights?
A “Well, as I said, outside on the corner there was a street light in front of the house and the light came right through the window and went right on his face. And beside that, you are getting adjusted to the darkness. I was in there for a little while, and a little light, you can see quite a lot.
Q “Excuse me? I am sorry.
A “As you get used to the darkness, there was a little light, and you can see.
Q “So that there was total darkness ?
A “No, it’s not total darkness. As I said, there was this light outside on the corner, the street light, there was not total darkness, because of the street light, sir.
* * # * * *
Q “I am not asking you that. I am just asking that on your direct examination when you said it was total darkness, if it, really wasn’t total darkness—
A “No, it wasn’t total darkness because I can see from the street light. It was — there was some light— '
Q “Then your testimony on direct examination was incorrect?
A “It wasn’t exactly — You see, there was this light coming in from the street — and I am only here to tell the truth, the whole truth. — ”

The evidence also showed that one of defendant’s hands was cut when he came into the house through the Arcadia door, and that as he took hold of the purse of the complaining witness blood was smeared on her clothing and person as he held her closely and tried to frighten her into giving him more money.

The second claim involves the alleged kidnapping charges. Defendant contends that the arrest and search were illegal and that the personal property found pursuant to the search of his person was inadmissible at the trial. The testimony shows that the arresting officers received a call on the police radio concerning a man with a gun in front of a residence at 1711 E. Warner. The radio call described a light colored automobile which the officers first encountered while proceeding to that address. The car they observed fit the description and they followed it to the address from which the complaint had originated. As a result of the description of the car, and as a result of the conversation which the officers had with the resident at 1711 E. Warner, the officers approached the car in which two robbery and kidnap victims, Carpenter and Lee, were seated. As the officers approached, Carpenter and Lee emerged from the automobile and started talking to officer Routh. As a result of the conversation between the kidnapped victims and the officer the defendant was arrested. Thereafter a search of his person disclosed that Mrs. McCarthy’s ring and the two coins taken from her were in his possession. The officers also found in his possession two watches, two wallets and other items belonging to Carpenter and Lee.

The two kidnapped victims testified that shortly before midnight they were at 1224 E. Hubbell Street when they were accost[342]*342ed by two men, and at gunpoint were taken for a ride in their own car. The defendant and his accomplice took the personal watches and other items from the two victims and forced them to drive around in the immediate neighborhood. The officers approached the car and apprehended the defendant.

The arresting officer testified that on the basis of the conversation he had with Lee and Carpenter he arrested the defendant upon the reasonable belief that he had kidnapped the two young men.

The third contention is not borne out by the facts. Defendant argues that his identification by the robbery victim in the police lineup was illegal and inadmissible in court. The testimony shows that of the six prisoners who were brought into the identification room, two were Mexicans and four were Caucasians. One of the Mexicans was rather tall and the other about 5'4". Defense counsel contended that by the process of elimination the victim could readily identify the shorter of the two Mexicans as the person who committed the robbery. The victim testified in this connection as follows:

Q “And so then by a process of elimination, all we have left is the last two men who are of mexican descent; is that correct?
A “Yes.
Q “And so then by a process of elimination we come down to Mr. Gortarez; is that correct?
A “Well, I knew what he looked like.
Q “Is that correct?
A “You mean I was strictly going on the fact that—
Q “No; by process of elimination.
A “No, I didn’t go by a process of elimination.”

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Related

Gortarez v. State ex rel. Eyman
495 P.2d 1348 (Court of Appeals of Arizona, 1972)
State v. Wilmore
459 P.2d 531 (Court of Appeals of Arizona, 1969)

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Bluebook (online)
442 P.2d 83, 103 Ariz. 339, 1968 Ariz. LEXIS 265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gortarez-ariz-1968.