State v. Boles
| Decision Date | 03 August 1995 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 905 P.2d 572,183 Ariz. 563 |
| Parties | STATE of Arizona, Appellee, v. Timothy Roosevelt BOLES, Appellant. 93-0333. |
| Court | Arizona Court of Appeals |
Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel, Crim.Div., and Galen H. Wilkes, Asst. Atty. Gen., Phoenix, for appellee.
Dean W. Trebesch, Maricopa County Public Defender by James H. Kemper, Deputy Public Defender, Phoenix, for appellant.
Timothy Roosevelt Boles ("defendant") appeals his convictions for eighteen felony offenses involving four separate victims and several counts of burglary, kidnapping, sexual assault, sexual abuse, sexual conduct with a minor, and child molestation. He raises two issues:
1) Was defendant's July 3, 1991, arrest unlawful, thereby rendering defendant's statements to the Phoenix police inadmissible at trial?
2) Did the trial court commit fundamental error by allowing the state to introduce expert testimony regarding an autorad "match" between defendant's DNA and the DNA in the samples recovered from two of the four victims?
We summarize our holdings as follows: First, defendant's statements to the police were admissible in evidence because he was lawfully arrested. Second, the trial court properly admitted evidence that defendant's DNA autorad matched the DNA autorad of the samples recovered from two of the victims. Nevertheless, the court committed fundamental error by allowing the state's experts to express opinions that implied that the autorad match positively identified the defendant. The court's error, we conclude, tainted all the jury's verdicts. Accordingly, we reverse defendant's convictions and remand for a retrial.
The charges in this case relate to a series of sexual assaults committed over a period of three years within neighboring apartment complexes in the area of 15th Avenue and Glendale Avenue in Phoenix, Arizona. Three of the four female victims (victim one, victim two, and victim four) were under fourteen years of age when they were assaulted. The other victim (victim three) was twenty years old. Defendant resided in the same general neighborhood as the victims.
The assaults occurred under the following circumstances. Each attack occurred early in the morning hours in the same general geographic area. In each case the assailant attempted to hide his identity from the victim in one way or another. Three of the victims testified that the assailant wore some type of glove. Two of the victims (victims one and four) were taken from their apartments while they slept and then assaulted. A third victim (victim two) was assaulted after she was taken from her apartment laundry to a different location. The older victim (victim three) was assaulted in her own bedroom, while the attacker held a knife to her neck.
The victims involved in the first thirteen counts of the indictment (victims one, two, and three) gave similar descriptions of the assailant: a young, black man with a slim, muscular build, short black hair, and no facial hair. Victim four could only state that her attacker was a black man with black hair. Victims one, two, and four, but not victim three, were shown photo lineups with defendant's photo. None of the victims could identify defendant from the photo array. At trial, although victims one and two identified defendant as their attacker, victims three and four could not.
Two police officers, arriving within minutes of a report that victim one had been abducted from her apartment, observed a black man running in the alley behind victim one's apartment. He was not wearing a shirt, had on blue shorts, and was wearing glasses. They briefly stopped him, but released him because the earlier report indicated the assailant was white. Later, when the officers interviewed victim one, she described the rapist as a black man wearing glasses, fingerless gloves, cut-off jeans, and no shirt. In 1991, after defendant's arrest, the officers identified defendant from a photo line-up as the man they had stopped in 1988.
Victim three was assaulted at about 3:40 a.m. in her apartment at 1717 West Glendale Avenue. During the struggle, the attacker covered the victim's face with a shirt and gagged her with a sock. The victim observed that the man was wearing no clothing other than a fingerless glove on his right hand. That same morning, at about 3:30 a.m., a newspaper delivery man saw a slender black man in a neighboring apartment complex at 1609 West Glendale Avenue, the site of victim one's assault. The man was wearing black spandex shorts, a shirt, and a blue and white painter's cap with the bill turned up.
Later, at about 4:00 a.m., the delivery man approached an apartment complex at 17th Avenue and Glendale Avenue and again saw the same man. The man was then running toward the apartments at 1609 West Glendale Avenue, where victim one had been assaulted in 1988. Several months earlier, the delivery man had observed the same black man, wearing spandex shorts and a T-shirt, loitering around the same apartments.
During April 1991, the Phoenix police maintained a surveillance operation in the area surrounding 15th Avenue and Glendale Avenue. On several occasions in the early morning, some of the surveillance officers saw a man fitting the assault suspect's description, wearing running clothes. He was running through the surrounding apartment complexes and occasionally looking into individual apartment windows. On each of these mornings, the officers lost track of the suspect before they could follow him.
On July 3, 1991, at approximately 4:00 a.m. at the corner of 15th Avenue and Glendale Avenue, two of the surveillance officers again saw the suspect. This time they were able to stop him as he ran through the breezeway of the apartment complex at 1609 West Glendale Avenue. The suspect was carrying a single sock in his hand and was wearing Asics brand running shoes. The suspect gave his name as Timothy Boles. One of the detaining officers identified Boles as the same person the officer had seen looking into apartment windows on April 11, 1991. Another surveillance officer identified defendant as the man he had seen peering into apartment windows on April 16, 1991.
Boles was arrested for trespassing and taken to the police station for questioning. He denied that he was involved in any of the sexual assaults or that he had engaged in peering into apartment windows. He also denied owning any of the types of running attire described by the assault victims, the officers, and the newspaper delivery man. He further denied that he was an early morning jogger. After giving the police blood and hair samples, defendant was released. Later, the Arizona Department of Public Safety ("DPS") crime lab extracted a DNA sample from defendant's blood.
After police issued a warrant for defendant's arrest, they learned defendant had moved to Illinois. In conjunction with the Cook County Illinois Sheriff's Office, Phoenix police arrested defendant and searched his Illinois residence. The police found a pair of blue running shorts, a pair of black spandex pants, two painter's caps, a red bandanna, and a photograph of defendant in his running apparel wearing gloves.
When arrested, defendant was questioned by a Cook County investigator. Although unaware of the details of the assaults, the investigator knew of the DNA test results. When the investigator told defendant about the DNA evidence, defendant responded that he was not concerned, explaining that he had read that DNA testing was not known to be accurate.
When defendant was originally interrogated in Phoenix, he had been provided no details of the assaults except for their location. Nevertheless, when questioned in Illinois, defendant told the Cook County investigator that the victims were white, young teenagers. Later, defendant recanted his earlier admissions, stating that he was unsure whether the victims were white and that he merely assumed that they were young girls. Defendant also claimed that Phoenix Police Detective Townsend told him in July of 1991 that some of the victims, while asleep in their apartments, were abducted and raped elsewhere.
At trial, the state presented an analysis of the physical evidence. A serologist testified that the pubic hairs retrieved from victims two and three, and the blood retrieved from victim two's leg, were consistent with defendant's hair and blood type. The serologist also testified to the consistency between defendant's Asics shoes and the partial shoe print left on the counter under the window where the assailant entered victim four's apartment. The state called two experts to testify that defendant's DNA matched that of the samples taken from victims two and three.
The deoxyribonucleic acid ("DNA") molecule has a double stranded structure called a double helix, which resembles a spiral ladder. The molecule is composed of three billion base pairs of four different chemicals. The particular order or pattern of these base pairs dictates genetic characteristics.
The base pairs or rungs of the ladder are composed of four substances called adenine (A), cytosine (C), guanine (G), and thymine (T). In the middle of each rung the substances bond, but A will only bond with T and C will only bond with G. Thus, the only possible combinations that can result from the bonding of the rungs of the DNA ladder are A-T, T-A, C-G, and G-C. When the DNA molecule is separated, and the base pairs are divided, they always return to the same configuration that existed before division.
Because 99% of the molecule is the same for all humans, DNA profiling focuses on those areas of the DNA molecule where there is significant differentiation of the base pair pattern. 2 These areas of differentiation are called "polym...
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