State v. Armstrong ( 1968 )

STRUCKMEYER, Justice.

This criminal appeal is from a conviction for the crime of robbery with a prior conviction. Since the matters raised have been repeatedly passed upon by this Court, they will be, in the main, disposed of summarily.

Appellant urges that he was not assigned counsel prior to his preliminary examination. As to this, we have held that unless there is a showing of prejudice, there is no error. State v. Smith, 99 Ariz. 106, 407 P.2d 74; State v. Mangrum, 98 Ariz. 279, 403 P.2d 925.

Appellant urges that the assistant county attorney committed prejudicial error in his argument to the jury. This claim arises out of the fact that appellant had a co-defendant who entered a plea of guilty and was given five years probation. Defense counsel told the jury:

“Now, if there was a robbery, like I say it was a partnership deal. Both partners should be punished. Where is the other man? This man who is standing trial, he is here * * * ”

In reply, the assistant'county attorney stated:

“ * * * He pled guilty to the charge in this case. He was given five years probation * * * ”

We do not countenance either party to a lawsuit alluding to matters which do not appear in evidence as part of the record, but we have held repeatedly that remarks invited by a defense attorney will not ordinarily be considered as reversible error. State v. Jackson, 100 Ariz. 91, 412 P.2d 36; State v. Gortarez, 98 Ariz. 160, 402 P.2d 992.

The appellant complains of the testimony of a police officer, viz.:

“He [the appellant] said, he admitted to me that he had committed this particular robbery and others.”

Defense counsel did not object to the testimony at the time of the trial nor was it presented to the lower court on a motion for new trial. We have repeatedly held that matters which were not raised in the lower court will not be considered as grounds for reversal in this Court. State v. Taylor, 99 Ariz. 85, 407 P.2d 59, cert. denied 384 U.S. 979, 86 S.Ct. 1878, 16 L.Ed.2d 689; State v. Evans, 88 Ariz. 364, 356 P.2d 1106.

Notwithstanding, it is clear that this testimony constitutes either an admission or confession, Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, and as such is controlled by the decision in State v. Owen, 96 Ariz. 274, 394 P.2d 206. See also State v. Goodyear, 100 Ariz. 244, 413 P.2d 566. The voluntariness must be resolved by the trial court outside the presence of the jury. The cause will be remanded for a determination of voluntariness in accordance with our decision in State v. Simoneau, 98 Ariz. 2, 401 P.2d 404.

Appellant was charged in the information with being convicted in the County of Maricopa, State of Arizona, on August 24, 1960, of the offense of “Drawing Check on No Account, a felony.” At his arraignment, he denied the prior conviction, pleading not guilty to the charge. During the trial, appellant took the stand and testified in response to questions from his counsel:

“Q Mr. Armstrong, have you ever been convicted of a felony prior to this?

“A Yes.

“Q When?

“A 1958.

“Q Where?

“A Oregon; Salem, Oregon, and in 1960 here in Phoenix.

“Q What was your offense here in Phoenix ?

“A It was a check charge. No account check.

“Q What was. the offense in Oregon? “A It was a check.

“Q Check?

“A Yes, sir.”

On cross-examination appellant enlarged somewhat on his testimony:

“Q What was the felony you were convicted of in Salem, Oregon, in 1958?

“A That was a check charge.

“Q Now, the one in 1960 in Arizona, that was for drawing checks on no account ?

“A Right.

“Q And was under the name, John Armstrong?

“A Yes.”

Thereafter, the court took the view that, having admitted the prior conviction from the witness stand, it was unnecessary to submit the matter to the jury and, consequently entered judgment that the appellant had been previously convicted of a felony.

By A.R.S. § 13-1649, there is increased punishment for a second conviction of a felony — in this instance, because the offense of robbery is punishable by imprisonment for a term exceeding five years, by imprisonment in the state prison for not less than ten years. By Rule 180, Rules of Criminal Procedure, 17 A.R.S., a defendant who is charged with a previous conviction is required to answer at his arraignment whether he has been so previously convicted. If he answers that he has, the answer is conclusive of the previous conviction in all subsequent proceedings. If he answers that he has not, the question whether he has shall be tried to the jury.

A little over a year ago we resolved the question now raised, stating that an admission on cross-examination is surely the strongest evidence available to prove a prior conviction. State v. Seymour, 101 Ariz. 498, 421 P.2d 517. And we cited to the overwhelming weight of authority holding that a prior conviction may be established by a defendant’s own testimony. We did not cite the comparatively recent case of Beard v. State, 216 Md. 302, 140 A.2d 672 (1958), whose language we consider particularly appropriate, from which we quote at length:

“The binding effect of an admission by a stipulation in open court, such as we have here, is generally admitted, and such an admission dispenses with the need for producing evidence in usual form to prove the fact so admitted. * * * Wharton, op. cit., [2 Wharton, Criminal Evidence (12th Ed.)] § 645, applies the general rule specifically to admissions of prior convictions, saying: ‘When the accused confesses the fact of the prior conviction, it is generally held that the state need not prove the fact, * * *.’

“Some courts have adopted the view that notwithstanding an admission by the accused of a prior conviction, there must still be a finding thereof by the jury. See State v. Cardwell, 332 Mo. 790, 60 S.W.2d 28 and Murmutt v. State, Tex.Cr. App., 63 S.W. 634. In the Cardwell case the penalty was to be fixed by the jury. Cases which follow this view make a distinction between a waiver of proof of a fact and a waiver of a finding by the jury of an admitted fact. Such a distinction would have force in a situation where the accused seasonably sought to withdraw the admission and controvert the fact admitted, but that is not the situation here.

“The Supreme Court of Iowa has held that the admission in open court of a prior conviction dispenses not only with other proof of such a conviction, but also with the necessity of a jury finding of such conviction. State v. Ganaway, 243 Iowa 1316, 55 N.W.2d 325; State v. Shepard, 247 Iowa 258, 73 N.W.2d 69. In the instant case the defendant made no effort to retract, repudiate or question his admission of his prior convictions. We agree with the views of the Supreme Court of Iowa in the Shepard case that it would be an unwarranted refinement of technicality which would serve no useful purpose, to hold that, in spite of the defendant’s stipulation of record admitting two prior convictions, the jury must, nevertheless, pass upon them.” 216 Md. at 311, 312, 140 A.2d at 677, 678.

Our attention has been directed to the case of State v. Furth, 5 Wash.2d 1, 104 P.2d 925. There, the defendant’s request for trial by jury on a charge of being an habitual criminal was denied. The court, undertaking to determine the fact without a jury, found that defendant was an habitual criminal on evidence which did not include admissions by defendant. We agree with the Washington Court in its conclusion that the state constitution’s provision guaranteeing the right of trial by jury was violated, but we do not think that is authority against the effect of the judicial admission in this case.

, Judgment affirmed except insofar as it relates to the voluntariness of appellant’s confessions and as to that remanded to the superior court for appropriate action.

McFARLAND, C. J., and UDALL, v. C. J., and LOCKWOOD, J., concur.