State ex rel. LaSota v. Corcoran, 13695

• Decision Date: 20 June 1978
• Docket Number: No. 13695,13695
• Citation: 119 Ariz. 573,583 P.2d 229
• Parties: STATE of Arizona ex rel. John A. LaSOTA, Jr., Acting Attorney General, Petitioner, v. The Honorable Robert J. CORCORAN, Judge of the Superior Court, in and for the County of Maricopa, Respondent, and Jonathan Charles TREADAWAY, Jr., Real Party in Interest.
• Court: Arizona Supreme Court

Page 229

583 P.2d 229

119 Ariz. 573

STATE of Arizona ex rel. John A. LaSOTA, Jr., Acting Attorney General, Petitioner, v. The Honorable Robert J. CORCORAN, Judge of the Superior Court, in and for the County of Maricopa, Respondent and Jonathan Charles TREADAWAY, Jr., Real Party in Interest.

No. 13695.

Supreme Court of Arizona, In Banc.

June 20, 1978.

Rehearings Denied July 18, 1978.

John A. LaSota, Jr., Atty. Gen., Stanley L. Patchell, Asst. Chief Counsel, Crim. Div., John Pressley Todd, Asst. Atty. Gen., Phoenix, for petitioner.

Goldstein, Flynn & Mason, Ltd. by John J. Flynn, Phoenix, for respondent real party in interest.

GORDON, Justice.

In December, 1974, a jury found Jonathan Charles Treadaway guilty of sodomy and first degree murder. On appeal, this court reversed the judgment and remanded the case for further proceedings. See State v. Treadaway, 116 Ariz. 163, 568 P.2d 1061 (1977). In preparation for the forthcoming retrial, Treadaway's counsel submitted numerous motions In limine to the trial court. Several of these motions were granted, thereby preventing the state from introducing certain evidence at trial. In order to contest the trial court's ruling prior to the commencement of the trial, the state filed this special action pursuant to the Rules of Procedure for Special Actions, 17A A.R.S.

In the great majority of actions, it is preferable to review a case in its entirety following a trial. This not only eliminates conjecture by focusing the issues in the light of the completed events which occurred at trial, in the sequence and context in which they occurred, but also prevents piecemeal appellate supervision of trials which tends to prolong litigation and is generally not conducive to judicial economy. However, we have accepted jurisdiction in this special action because of the unique posture of the case. We previously reversed Treadaway's conviction because of the trial court's error on an evidentiary issue. Now, prior to the retrial, the trial court, in ruling on a similar and equally important evidentiary issue, has apparently misconceived the holding of State v. Treadaway, 116 Ariz. 163, 568 P.2d 1061 (1977).

The facts underlying the charges against Treadaway are as follows: In the early morning hours of August 30, 1974, a mother found her six year old son dead in his bed. An autopsy of the boy indicated that he died of asphyxia and had been sodomized. Apparently someone had entered the home through a living room window, but did not steal anything. The evidence linking Treadaway to the incident basically consists of two palm prints found on the outside of the boy's locked bedroom window, and pubic hairs found on the child which were similar to Treadaway's.

The five major issues raised by the state in its petition for special action concern the admissibility of:

(1) A prior bad act, "the Brown incident";

(2) Treadaway's pre-arrest statements;

(3) Statements by Treadaway while in custody;

(4) Prior trial testimony;

(5) A letter from Treadaway to his parents.

The Brown Incident

As part of its case against Treadaway, the state planned to introduce evidence of other prior bad acts in order to demonstrate an emotional propensity by Treadaway to commit the crimes charged. One of these incidents occurred on May 31, 1974, three months prior to the occurrence of the crimes charged. On that morning, Mrs. Brown discovered her son being strangled by a nude attacker in his bedroom. When the mother entered the boy's room, the attacker jumped up and fled through an open window. Sometime during the struggle, a necklace composed of beads was pulled off the attacker. Outside the boy's window, the police discovered a shirt and a pair of cut-off blue jeans.

Following a pre-trial hearing to determine the admissibility of this incident, the trial court ruled:

"It is ordered granting defendant's Motion in Limine relating to the Brown incident of 1974. The Court finds that there was no reliable expert medical testimony that the same person would have perpetrated the Brown incident and (this) homicide."

The state then avowed that it could offer additional evidence on the issue of emotional propensity. The court then ruled:

"Well, notwithstanding, and taking the offer of proof to be true, I still find that as to the Brown Incident the Court finds that there is no substantial evidence that the defendant committed those acts;"

After a careful review of the record, we have concluded that the trial court abused its discretion by excluding the Brown incident from evidence. That a defendant committed another crime need not be proven beyond a reasonable doubt in order to introduce evidence of that crime at a trial on another matter. It is only necessary that, "the proof both as to the commission of another crime and its commission by the defendant, must be by 'substantial evidence sufficient to take the case to a jury'." State v. Hughes, 102 Ariz. 118, 123, 426 P.2d 386, 391 (1967); State v. Mitchell, 112 Ariz. 592, 545 P.2d 49 (1976).

Here, the requisite proof of the occurrence of the Brown incident has been supplied. Consequently, the critical issue is whether the state has adequately established that Treadaway was the attacker. The most incriminating evidence linking Treadaway to the Brown incident is the necklace which the boy ripped from the throat of the attacker. At the pretrial hearing, the state produced color photographs of Treadaway wearing a necklace which appears to be the same necklace as the one found at the Brown's house. According to the person who photographed Treadaway, the pictures were probably taken in April or May, 1974, although they could have been taken as late as June, 1974. Both the necklace in the picture and the one found at the Brown's house consisted of a variety of beads. The center bead in each is a yellow African trade bead with blue spots and red lines. Trade beads are considered unique because they were produced centuries ago in Venice, Italy, each having a distinctive pattern. In one orientation of the bead on the "Brown" necklace, the arrangement of the blue spots seem to coincide with the bead in the picture. On either side of the trade bead in the "Brown" necklace is a series of smaller beads of different sizes, colors and shapes arranged in groups of three or four. Due to the poor quality of the picture, it is not possible to count the exact number of individual beads, but the color, size and arrangement of the beads in that necklace seems to parallel the necklace found at the Brown's residence. Finally, as to the necklace, Treadaway told his friend who had given him the necklace, that he had lost it running from the police.

In addition to the necklace, the clothes which were found outside of the boy's window are probative of the identification of the attacker. Head and pubic hairs found in the clothing were similar to samples taken from Treadaway. Furthermore, a police criminalist found a crab louse egg sack, which he considered to be rare, on a pubic hair taken from Treadaway and on one from the clothing. Although evidence negating the inference of Treadaway's culpability was also presented at the pretrial hearing on the Brown incident, we believe reasonable minds could differ on this issue. Thus the evidence is sufficient to warrant presenting the Brown incident to the jury. Since we have concluded that the evidence of the Brown incident meets the standard of State v. Hughes, supra, and State v. Mitchell, supra, we turn to the theory which permits the admission of the this prior act at the forthcoming trial.

In its initial ruling, the trial court excluded the Brown incident because "there was no reliable expert medical testimony * * *." This ruling seems to misconstrue our holdings in State v. Treadaway, 116 Ariz. 163, 568 P.2d 1061 (1977) and State v. McFarlin, 110 Ariz. 225, 517 P.2d 87 (1973).

We reversed in State v. Treadaway, supra, stating:

"(T)he admission of this prior bad act * * * constitutes reversible error unless and until there is reliable expert medical testimony that such a prior act Three years earlier tends to show a continuing emotional propensity to commit the act charged." (Emphasis added.) Id. 116 Ariz. at 167, 568 P.2d at 1065.

The incident then at issue was not the Brown attack. There, remoteness in time was a problem because a three year lapse in time could have vitiated its predictive value. Also the act was different than the crime with which Treadaway was charged, and, therefore, may have involved different psychological and emotional dispositions. Thus, it can be seen that State v. Treadaway, supra, only controls if the prior act is either not similar to the crime charged or not near in time.

Reliable expert medical testimony is not always required before a prior act may be admitted pursuant to the emotional propensity exception.

"In those instances in which the offense charged involves the element of abnormal sex acts such as sodomy, child molesting, lewd and lascivious, etc., there is sufficient basis to accept proof of similar acts near in time to the offense charged as evidence of the accused's propensity to commit such perverted acts." State v. McFarlin, 110 Ariz. 225, 228, 517 P.2d 87, 90 (1973).

As the Brown incident is both similar and near in time to the crimes for which Treadaway is now accused, its admissibility is governed by State v. McFarlin, supra, rather than State v. Treadaway, supra. Therefore, to exclude this incident on account of a lack of reliable expert medical testimony would constitute an abuse of discretion.

Pre-Arrest Statement

A police report prepared by Detective Ysasi on September 13, 1974 indicates that on Wednesday, September 11, 1974, Ysasi and another officer went to the Treadaway house to interview Jonathan, who at that time was still just a suspect, and to take some palm prints. The police introduced themselves to Jonathan's father and were invited into the house. After the parties...