Sanchez v. State, 87-119
| Decision Date | 25 March 1988 |
| Docket Number | No. 87-119,87-119 |
| Citation | 751 P.2d 1300 |
| Parties | Joseph Blaz SANCHEZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Max A. Wilson, Denver, Colo., and Jay Brammer, Greeley, Colo., for appellant.
Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Terry Armitage, Asst. Atty. Gen., Cheyenne, for appellee.
Before BROWN, C.J., THOMAS, CARDINE and MACY, JJ., and GUTHRIE, J. (Retired).
This criminal appeal challenges appellant Joseph Blaz Sanchez's conviction and sentence for first degree sexual assault. Appellant raises four issues on appeal:
We affirm.
On April 28, 1986, the victim, a thirty-five year old Colorado woman, left Torrington, Wyoming, to travel home to Denver, after having completed an installation job of draperies at the St. Joseph's Children's Home. Intending to call a friend to inform him that she was on her way, she stopped in Hawk Springs to find a telephone. She pulled off the road where a gas station, bar and grocery store were located. The gas station and bar were both closed, and she did not immediately see a telephone. She asked a man standing near the gas pumps if there was a telephone in the area; he indicated there was one located at the end of the bar. After parking her car she found the telephone booth. There was another man, appellant, in the booth apparently using the phone. She gestured to him to determine how long he would be, and he indicated he would not be long. The victim returned to her car to wait until appellant finished his call. Meanwhile, the man who had given her directions to the phone came around in a car and asked if she had found the phone. She responded in the affirmative, and the man drove away toward Torrington.
Appellant then appeared on the porch of the bar. The victim got out of her car and walked toward the phone. As she passed appellant she thanked him, to which he replied, "Why don't you come see me when you are done?" The victim did not respond, but went to make her call which, according to her telephone bill, occurred at 10:12 p.m. and lasted until 10:14 p.m.
As the victim returned to her car after using the phone, appellant appeared by her car door, grabbed the door handle and pushed the victim into her car. She screamed and bit appellant's hand as he pushed on her. Appellant bit the victim on the nose. He got in the car, sat beside her in the driver's seat, closed the door and attempted to start the car. Failing at this, appellant pushed the victim over the console and onto the passenger side.
The victim asked appellant what he planned to do; appellant repeatedly said, " * * * Shut up. Shut up. I will stab you. Shut up. * * * Shut up or I will hit you. Shut up. * * * " Appellant never exhibited a knife, nor did he hit the victim. The victim attempted to resist, saying to appellant, "You wouldn't want this to happen to your girlfriend or your wife or your mother, would you?" She also attempted to offer appellant money. Appellant told the victim that he was not going to rape her, but that "I just want to see your pussy." The victim said, "No, please," but appellant repeated his threats.
Finally, the victim offered to make a deal with appellant; if appellant would agree to only look at her genital area and then leave, she would show it to him. They shook hands, and the victim began to lift her skirt. At trial the following colloquy took place describing the events that followed:
At that point, appellant left the car and disappeared between the bar and grocery store buildings.
The victim left the area and proceeded to Cheyenne where she stopped at a truck stop, asked the attendant to fill up the car and went inside to telephone her friend in Denver. After the call she broke down. The attendant asked her what was wrong, to which she replied that she had just been attacked in her car. The attendant went into the truck stop and telephoned the sheriff's department. Two deputies arrived to interview the victim. During the interview, the deputies elicited information about the assault and a description of the assailant. In a written statement, the victim described the assailant as: "[A man with] dark, short hair, mustache, jeans, and a light jacket with pockets in front."
The victim was offered medical assistance which she declined. She then returned to Denver. A few days later, the investigating officers again met with the victim at which time they produced a photo array. The victim picked appellant's picture from the array after a few moments, indicating that the man in the photo was the man who had assaulted her.
On April 29, two investigating officers contacted appellant's employer at Hawk Springs. The employer testified that appellant had not shown up for work the day following the assault and that in a telephone conversation with appellant the evening of the day appellant was not at work, appellant had inquired of the employer as to whether " * * * anybody had been kind of snooping around, looking around or After receiving this information, appellant made a general denial stating: " Appellant then indicated that his wife had been sick and that he had driven to Cheyenne immediately after making the suggestion to the victim in order to be with his wife.
something." The employer responded in the affirmative and told appellant that two deputy sheriffs had been by asking questions about a possible rape attempt
A criminal complaint was filed on May 21, 1986, charging appellant with first degree sexual assault in violation of § 6-2-302(a)(i)-(ii), W.S.1977 (June 1983 Replacement). Appellant entered a plea of not guilty and not guilty by reason of mental illness or deficiency, and was ordered committed to the Wyoming State Hospital for determination of competency to stand trial. An opinion was rendered by the hospital on August 6, 1986, which concluded that appellant did " * * * not lack the capacity to comprehend his position, to understand the nature and object of the proceedings against him, to conduct his defense in a rational manner, and to cooperate with his counsel to the end that any available defense may be interposed." Trial began on January 7, 1987.
Over appellant's objection, the state introduced state's exhibit number 6 consisting of five Polaroid photographs making up the photo array the victim had looked at to identify appellant. After hearing all the evidence, the jury was instructed on the relevant statutes and elements of the crime. It returned a verdict of guilty to the charge of first degree sexual assault. On March 13, 1987, appellant was sentenced to a term of not less than twenty-five nor more than thirty-five years in the Wyoming State Penitentiary, with 300 days credit against the maximum term. This appeal followed.
At trial the court admitted state's Exhibit No. 6 into evidence over the objection of defense counsel. The state asserted that the purpose of introducing this exhibit was to show a prior identification of appellant by the victim. The exhibit consisted of a photo array of five photographs shown to the victim a few days after she was assaulted. The photos were paper-clipped to a black piece of construction paper and displayed under a piece of clear plastic for trial. Each photo in the array had a piece of masking tape over the chests of the subjects.
During the trial, appellant objected to the admission of the photo array on the basis of insufficient foundation, prejudice and that it tainted the victim's in-court identification. The court overruled the objection, which was renewed at the close of the state's evidence, and overruled again. On appeal appellant contends that the photographs resembled mugshots and that their introduction was prejudicial because they unduly suggested that appellant had been involved in prior criminal activity not connected with the instant crime. Appellant asserts Rule 403, Wyoming Rules of Evidence, as the basis of his contention. Rule 403, W.R.E., provides:
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