State v. Asbury
| Decision Date | 13 November 1984 |
| Docket Number | Nos. 2,CA-CR,s. 2 |
| Parties | The STATE of Arizona, Appellee, v. Stanley ASBURY, Appellant. 3393, 2 3394-2. |
| Court | Arizona Court of Appeals |
Appellant, a physician, was originally charged with two counts of sexual assault and two counts of sexual abuse against two different victims. He was later indicted for sexual assault and sexual abuse of two other victims. Pursuant to a plea agreement he pled no contest to two counts of attempted sexual contact which occurred during female pelvic examinations and the other charges were dismissed. The record shows that the contact consisted of masturbating the victims during the examination. The offenses, violations of A.R.S. §§ 13-1404 and 13-101, could have been punished either as class 6 felonies or class 1 misdemeanors pursuant to A.R.S. § 13-702(H), and the only issue before the court on sentencing was whether the offenses would be treated as felonies or misdemeanors.
At the date set for sentencing, which had been twice continued at the defense attorney's request, the trial court expressed concern that the defense had several witnesses to present. The trial court noted that no request for a mitigation hearing had been made and advised defense counsel that he would give him only half an hour for the sentencing hearing. Defense counsel pointed out to the court that only two days previously he had received a copy of the following letter, signed by the medical staff of Northern Cochise Community Hospital (apparently every physician in the Willcox area) which had been sent to the court:
"* * *
Through this letter, the Medical Staff of Northern Cochise Community Hospital wishes to express concern regarding the outcome of sentencing for Dr. Stanley Asbury to be seen before your court on December 12, 1983.
As physicians, we are very concerned with the feelings of the members of the community regarding the medical profession as a result of Dr. Asbury's actions. The physician/patient relationship is one of trust; and when this trust is violated, it is serious to both the medical profession and to society. It is especially tragic for the patients and victims involved. Dr. Asbury has been found guilty of the sexual molestation of four women of our community and it is the consensus of the Medical Staff that the penalty for such action should be sufficient to ensure removal of his license and thereby the inability to continue practicing medicine. If his actions are considered only a 'misdemeanor', Dr. Asbury will probably be free to continue his practice as before.
It is our sincere hope that you will be aware of both the professional and public opinions of those communities most affected by this physician's past actions and that you would have considered all documentation/information available. Through the process of verifying Dr. Asbury's credentials for consideration of Medical Staff appointment, we have accumulated substantial information and history regarding his California and Arizona practices. This information was supplied to the Arizona Board of Osteopathic Examiners and to the Cochise County Attorneys [sic] Office in connection with this case.
We hope that in reviewing this matter, you will recognize the seriousness of Dr. Asbury's actions. Please consider our concerns before rendering your decision in this case. If you have any questions, please feel free to call upon any member of the Medical Staff for additional information or background. Thanking you in advance for your anticipated cooperation. * * * "
Defense counsel also told the trial court that he had just received that morning a copy of a letter sent to the court by Mr. Abrutz, the administrator of Northern Cochise Community Hospital. This letter states:
" * * *
As the administrator of a small community hospital and nursing home in southern Arizona, I feel a great deal of responsibility toward both the community as a whole and the medical community of our area. For that reason, I would like to express my concerns about the upcoming sentencing of Dr. Stanley Asbury on December 12.
When Dr. Asbury applied for Medical Staff privileges at our hospital, we began a credentials check in accordance with our hospital policy. Over a period of time, we accumulated a large file regarding his previous practices and professional behavior in both California and Arizona. Copies of that file have been submitted to the Board of Osteopathic Examiners and the Cochise County Attorney's Office.
As you are aware, Dr. Asbury has been charged with and found guilty of four counts of attempted sexual molestation of female patients. I feel this is a very serious breach of the patient-doctor relationship which cannot be taken lightly. Despite the fact that Dr. Asbury was not granted privileges at this hospital, the state-wide publicity given his case casts a negative reflection on our local medical community and on the medical profession as a whole. The penalty for such a breach must be great enough to discourage any recurrence of this type of behavior.
Thank you for your consideration in this case. * * * "
Defense counsel then requested the trial court to continue the sentencing for three weeks to allow him to refute the letters or, alternatively, to allow him to call the witnesses which he had gathered at the last minute.
The trial court stated that this was not a mitigation hearing and that the request for a mitigation hearing was denied. However, the court then told defense counsel that it would allow appellant's psychiatrist to testify but that the proceedings had to end at noon because it was a law and motion day and the court did not have time for a full-blown mitigation hearing. The trial court stated that it had read the presentence report and papers presented to it. This report had fifteen letters from appellant's patients attached to it saying what a good doctor he was and how vital it was that he remain in practice in the Willcox area.
Appellant personally addressed the court and stated that he thought he had caused emotional damage to the victims. He was sure that their husbands were very upset about the situation.
Defense counsel again asked the trial court for a continuance because of the two letters so he could explore the truthfulness of the allegations made or the "purity" or lack of "purity" behind the letters. In the alternative, he requested that he be allowed to present two of the 18 witnesses from Willcox to attest to appellant's medical competence and the community's need to have him stay there. The motion for continuance was denied and the trial court also denied defense counsel's request that he be allowed to present his witnesses, apparently believing that defense counsel wanted to contest the charges. The court stated:
"There, are, I assume, by the admission or the no contest plea that there is some credibility or veracity to the charges alleged through the victims as set forth in the presentence report."
Appellant's psychiatrist then testified in appellant's favor and was cross-examined by the state.
Defense counsel again stated that he had witnesses to attest to Asbury's capabilities as a physician and the necessity that he continue to practice in the Willcox area. He also asked the trial court to continue the matter for a year. Defense counsel further told the court that he wanted to present testimony about the political situation--in particular, the fact that the victims had made complaints about their treatment to the staff of the Northern Cochise Community Hospital and that Mr. Abrutz referred the women to Abrutz' personal lawyer for a possible civil action against the doctor.
The court responded to this request by stating that the letters he had received, on both sides, were helpful only to a limited degree and that he really did not give much value to the letters except as an indication of the concern in the community for or against the doctor and that he was going to make his decision more on what was contained in the presentence report and the facts of the case. The court also told defense counsel that he did not give any value to reports in the presentence report that Asbury may have had trouble and made mistakes in his practice in other places.
Defense counsel was then given a chance to argue to the court. He started out by suggesting that this whole business with Asbury got started when one of the victims, Mrs. S, went to the Northern Cochise Community Hospital and the doctors there first called in the hospital administrator and talked to a personal injury lawyer before telling the police what happened. He then mentioned victim Mrs. J and wondered why she went back to the doctor after the original unlawful event. (This information about Mrs. J's actions is contained in the presentence report.) Next, defense counsel mentioned victim Mrs. L whom he stated had a long history of psychosomatic illness and who had consulted 15 or 20 doctors in Tucson, and that he did not think that whatever happened in any pelvic examination with Asbury could be attributed to or could be the root problem of whatever suffering Mrs. L is experiencing. Defense counsel then suggested that the whole situation was politically motivated and stated that when he looked at it as a whole he wondered what the doctor had really done.
The prosecutor then argued to the court. Afterward the trial court asked if there were any victims who wished to address the court. Three of them did: Mrs. S, Mrs. L and Mrs. J. They testified as follows:
"MRS. [S]: First of all, I would like to say that everything I said, whether it was to the police department or any of my attorneys or to the polygraph examiner was truthful.
I didn't make any of this up.
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State v. Chiappetta, 2 CA-CR 2001-0433.
...of any party, hold a pre-sentencing hearing at any time prior to sentencing." We find instructive our decision in State v. Asbury, 145 Ariz. 381, 701 P.2d 1189 (App.1984). There we determined that the trial court had erred in denying the defendant's motion for a mitigation hearing on the gr......
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... ... Where important facts are to be determined by the factfinder and the burden of proof is on the state, it would be fundamentally unfair to allow the state to prove such facts on purely hearsay evidence, denying the accused the opportunity to cross-examine the declarant. Cf. State v. Asbury, 145 Ariz. 381, 701 P.2d 1189 (App.1984); McLean v. State, 482 A.2d 101 (Del.1984); State v. Wilson, 183 N.J.Super. 86, 443 A.2d 252 (1981); State v. Self, 88 N.M. 37, 536 P.2d 1093 (Ct.App.1975) ... 106 N.M. at 10, 738 P.2d at 128 ... Here, however, unlike ... ...
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