State v. Hutton

509 P.2d 626, 109 Ariz. 356, 1973 Ariz. LEXIS 347
CourtArizona Supreme Court
DecidedMay 7, 1973
Docket2455
StatusPublished
Cited by8 cases

This text of 509 P.2d 626 (State v. Hutton) 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. Hutton, 509 P.2d 626, 109 Ariz. 356, 1973 Ariz. LEXIS 347 (Ark. 1973).

Opinion

CAMERON, Vice Chief Justice.

This is an appeal from a jury verdict and judgment of guilty to the crime of' possession of narcotic drugs, § 36-1002 A. R.S., with a prior conviction, § 13-1649 A. R.S., and a sentence thereon of not less than fifteen nor more than twenty years..

We are asked to answer three questions on appeal: ,

1. Was it error to allow a police officer' to testify concerning the activities of the defendant on the evening prior to the arrest?
2. Did the County Attorney exceed the scope of proper cross-examination concerning defendant’s prior felony, conviction ?
3. Did the trial court err in instructing the jury on the elements of possession of narcotics?

The facts necessary for a determination of this matter on appeal are as follows. The defendant, Richard Joe Hutton, was under surveillance by Officers Oscar Long and Ken Patterson on the evening of' 26 January 1971. The defendant was observed standing in the doorway of a tavern. The defendant would have brief conversations with people entering and leaving the tavern and then he would walk from the tavern through a parking lot to an alley behind the tavern. The officers were unable to ascertain what was happening while defendant was in the alley. Defendant would then return to the door of the tavern and the people with whom he had been conversing would leave.

*358 .On the following afternoon,- Officer Patterson ■ discovered in the alley, behind the tavern a red cigarette package which he suspected contained narcotics. The detectives left the cigarette package in place and took up a. position of surveillance nearby. After awhile, the defendant came near the cigarette package and then left. After several minutes he returned, picked up'"the package, and began walking down the alley. The two detectives pursued him arid arrested him for illegal possession of narcotics. The defendant timely moved to suppress the testimony of Officers Long arid Patterson concerning their observations of the defendant on 26 January 1971, tfyp day. before the arrest. The motion was denied.. ■

"At the trial the defendant took the stand in- his 'own behalf and testified that a-friend of his with whom he was having a drink in the tavern, advised him that she liad seen somebody hide something in the vicinity of the -cigarette package. The defendant testified he went opt to investigate, was unable to find anything, and then returned to the tavern. His friend directed ’ him to look more closely by a fence near; the parking lot and he then returned to the alley, found the package, and was then arrested. The defendant contended that he did not know the cigarette package contained narcotics.

D.uring the trial the defendant was cross-examined, concerning two prior felony convictions at which time he objected to allowing certain of the questions. From a jury verdict and judgment of guilty and a sentence of not less than fifteen nor more than twenty years in the Arizona State Prison, the defendant appeals.

TESTIMONY CONCERNING THE AC- ' TIVITIES OF 26 JANUARY 1971

The defendant contends that the testimony.,-of the police officers concerning the defendant’s trips -from the door of the tavern to..the1 alley, “suggested that he was engaged in the crime of selling these narcotics on that night.” Admittedly, defendant’s numerous trips to the alley following conversations with people in the door of the tavern, after which the people would then leave the premises, might lead a person to believe that the defendant was in fact engaged in some sort of questionable activity.

The question before this court, however, is not whether this is an inference of other criminal acts, but whether or not this testimony provides the “complete story” of what the defendant was doing. Our court has stated:

“Evidence of other criminal acts is admissible when so blended or connected with the crime of which defendant is accused that proof of one incidentally involves the other or explains the circumstances of the crime, (citations omitted) This principle that the complete story of the crime may be shown even though it reveals other crimes has often been termed Tes gestae’. * * * [W]e choose to refer to this as the ‘complete story’ principle, rather than ‘res gestae’.” State v. Villavicencio, 95 Ariz. 199, 201, 388 P.2d 245, 246 (1964).

And the Court of Appeals has stated:

“* * * Testimony covering the presence and activities of the defendant on the morning of the offense is material to give the jury a complete picture as to time and place and is necessary or helpful to an understanding of the conduct of the defendant. * * *” State v. Albe, 10 Ariz.App. 545, 548, 460 P.2d 651, 654 (1969).

The defendant’s two visits to the alley on the afternoon of the 27th become reasonable and understandable when his activities of the night before are known. Under these circumstances, we believe that the defendant’s conduct the night before serves to provide a “complete picture” of the defendant’s activities concerning the crime for which he was charged, and we find no error in the trial court admitting such evidence.

*359 CROSS-EXAMINATION REGARDING PRIOR CONVICTION

The defendant took the stand in his own behalf and was cross-examined as follows:

“Q You were convicted in Superior Court of Maricopa County for robbery in 1952, April of 1952 ?
“A Yes.
“Q In December of 1958, you were further convicted of burglary, first degree, is that not correct ?
“A There’s a technicality in that.
“Q Yes or No?
“A I was violated * * * for parole violation.
“Q You were convicted of the charge? * * *
“A The conviction went with the parole violation.
“Q At that time were you represented by an attorney?
“BY MR. EVANS: Wait a minute, Your Honor. This is going beyond the proper scope of cross-examination.
‡ ijs ífí jjí $c
“BY THE COURT: You may proceed.
“Q Mr. Hutton, isn’t it true that in December of 1958 in Superior Court of Maricopa County, that you were convicted of burglary, first degree?
“A I pled guilty to burglary, first degree.
“BY MR. SANDY: Fine. I have no more questions.”

Defendant does not question the fact that he was convicted of the two prior felonies. He does, however, object to the question concerning the fact that the defendant was represented by counsel at the prior conviction.

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546 P.2d 814 (Arizona Supreme Court, 1976)
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528 P.2d 829 (Arizona Supreme Court, 1974)
State v. Babineaux
526 P.2d 1277 (Court of Appeals of Arizona, 1974)
State v. McMurry
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State v. Lockner
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509 P.2d 1034 (Arizona Supreme Court, 1973)

Cite This Page — Counsel Stack

Bluebook (online)
509 P.2d 626, 109 Ariz. 356, 1973 Ariz. LEXIS 347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hutton-ariz-1973.