State v. Reese

547 P.2d 522, 26 Ariz. App. 251, 1976 Ariz. App. LEXIS 827
CourtCourt of Appeals of Arizona
DecidedApril 1, 1976
DocketNo. 1 CA-CR 1465-PR
StatusPublished
Cited by5 cases

This text of 547 P.2d 522 (State v. Reese) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Reese, 547 P.2d 522, 26 Ariz. App. 251, 1976 Ariz. App. LEXIS 827 (Ark. Ct. App. 1976).

Opinion

OPINION

SCHROEDER, Judge.

Petitioner Raymond Leonard Reese seeks review of the trial court’s denial of his petition for post-conviction relief, pursuant to Rule 32.1 et seq., Arizona Rules of Criminal Procedure, 17 A.R.S. He asks that his conviction be set aside due to the prosecution’s use of an invalid prior conviction for impeachment purposes during petitioner’s trial. We grant review and deny relief.

Petitioner was convicted of first degree burglary on March 28, 1973. He was sentenced to a term of 10 to 12 years, based on the allegation of a prior felony conviction in Maricopa County in 1960. The instant burglary conviction was affirmed by our Supreme Court in State v. Reese, 111 Ariz. 249, 527 P.2d 508 (1974).

In February of 1975, Reese moved for post-conviction relief, after having obtained a determination by the Maricopa County Superior Court that the 1960 conviction was constitutionally defective in that, when the guilty plea was accepted, there had been no knowing waiver of constitutional rights including the right to counsel. Petitioner sought both a reconsideration of the sentence in this case, and also a new trial based on the impermissible use of an uncounseled conviction to impeach him at trial. The trial court granted his request for reconsideration of sentence, and reduced the sentence to 7 to 10 years. However, the trial court denied the request for new trial, finding that any improper use of the invalid prior conviction for impeachment was merely harmless error. Petitioner’s motion for rehearing and the present petition for review followed.

It is well established that use of invalid prior convictions is error of constitutional dimension. This is true both with respect to the use of such convictions in enhancement of sentencing, Burgett v. State of Texas, 389 U.S. 109, 115, 88 S.Ct. 258, [253]*253262, 19 L.Ed.2d 319 (1967); United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L. Ed.2d 592 (1972), as well as for impeachment purposes. Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972). However, the use of such convictions for impeachment purposes may be so insignificant in the context of the trial itself as to be rendered harmless error. Bates v. Nelson, 485 F.2d 90 (9th Cir. 1973), cert. denied sub. nom., Bates v. McCarthy, 415 U.S. 960, 94 S.Ct. 1491, 39 L.Ed.2d 575 (1974); United States v. Faulkenbery, 472 F.2d 879 (9th Cir. 1973).

In the instant case, the trial court properly determined that the use of the invalid prior conviction as a basis for an enhanced punishment was improper. The invalid conviction was the only prior felony conviction which the State relied upon and proved in the prior conviction hearing. However, the invalidity of the conviction for enhancement purposes does not automatically require reversal of the conviction because the invalid conviction was also used for impeachment purposes during the trial. As was pointed out in Thomas v. Savage, 513 F.2d 536, 539 (5th Cir. 1975), the Supreme Court itself, in holding that reliance on an invalid conviction required resentencing, let stand the Ninth Circuit’s determination of harmless error in connection with the conviction’s introduction into evidence at the trial. United States v. Tucker, supra, aff’g 431 F.2d 1292 (9th Cir. 1970).

We are keenly aware that when error of a constitutional nature is present, courts must proceed with great caution in finding that the error is harmless. We should heed the admonition of Justice Black that harmless error requires a showing that the error did not contribute to the conviction “beyond a reasonable doubt.” Chapman v. State of California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967).

In determining whether the use of a prior invalid conviction for impeachment purposes is harmless in the circumstances of a given case, the courts have looked principally to the strength of the evidence against the defendant independent of the prior conviction. See Bates v. Nelson, supra; United States v. Faulkenbery, supra; Subilosky v. Moore, 443 F.2d 334 (1st Cir. 1971); Gilday v. Scafati, 428 F.2d 1027 (1st Cir. 1970); Burford v. State of Alaska, 515 P.2d 382, 383 (Alas.1973); People v. Neal, 528 P.2d 220 (Colo. 1974); People v. Moore, 391 Mich. 426, 216 N.W.2d 770 (1974); State v. Palmigiano, 112 R.I. 1348, 309 A.2d 855 (1973).

Courts have also considered whether there were other valid prior convictions introduced to impeach the defendant’s credibility. See, e. g., Subilosky v. Moore, supra; Gilday v. Scafati, supra; Burford v. State, supra; State v. Palmigiano, supra; People v. Moore, supra. At trial, as opposed to the prior conviction hearing for enhancement purposes where only one prior conviction was proper, three other valid convictions were used to impeach the defendant. The evidence against Reese at the trial was strong indeed.

Reese was charged with a January, 1973 burglary of a store in Prescott, Arizona. The policeman who first responded to the burglary alarm at approximately 8:30 p. m. identified Reese as the man he saw at the cash register inside the store. Other witnesses identified Reese as the man arrested approximately an hour and a half later hiding in the rafters of the store. Reese himself took the stand and described how he had entered the building through the window in order to rob the cash drawers. He thus fully admitted that he had committed burglary, but contended that he had entered the building in the daytime and thus should be convicted only of burglary in the second degree.1

Reese testified that it was still light when he actually entered the building. He did not state the time at which he entered and also could not testify that it was before [254]*254sunset. He stated only that it was “at sunset” and admitted that the sun had gone behind the mountain. When asked why the alarm went off at 8:30 p. m., several hours after sunset, his explanation was that when he entered the window, he slipped, fell, and was rendered unconscious for a period of hours. He testified that when he regained consciousness, he walked through swinging doors to the room where the cash register was kept, and at that point triggered the alarm.

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Bluebook (online)
547 P.2d 522, 26 Ariz. App. 251, 1976 Ariz. App. LEXIS 827, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-reese-arizctapp-1976.