State v. Bowie
| Decision Date | 23 June 1978 |
| Docket Number | No. 4147,4147 |
| Citation | 580 P.2d 1190,119 Ariz. 336 |
| Parties | STATE of Arizona, Appellee, v. Douglas Nathaniel BOWIE, Appellant. |
| Court | Arizona Supreme Court |
Bruce E. Babbitt, former Atty. Gen., John A. LaSota, Jr., Atty. Gen. by William J. Schafer, III and Lynn Hamilton, Asst. Attys. Gen., Phoenix, for appellee.
Paul Hunter, Yuma, for appellant.
Appellant Douglas N. Bowie was charged by indictment with three counts of molesting a child under the age of fifteen, two counts of lewd and lascivious acts upon children under fifteen, and one count of sodomy upon a child under fifteen. Specifically, the indictment charged that Bowie had molested, and committed lewd and lascivious acts upon, a six-year-old girl and her four-year-old brother, and that he had molested and sodomized a six-year-old boy. The acts against the six-year-old boy allegedly occurred approximately one year before Bowie was arrested; this child was seven at the time of trial. These acts were supposed to have occurred when Bowie was babysitting for the children.
After trial, the jury returned a verdict of guilty of two counts of child molestation, guilty of one count of lewd and lascivious acts, and not guilty of sodomy. The counts of molesting and committing lewd and lascivious acts upon the four-year-old were dismissed by the trial court because the four-year-old was found incompetent to testify.
Appellant moved for a new trial; the motion was granted as to the conviction of the lewd and lascivious act, but denied as to the other convictions. Appellant was sentenced to one to four years on each remaining conviction, the sentences to be concurrent. The trial court later acquitted appellant of the lewd and lascivious charge.
Appeal was taken to the Court of Appeals. The Supreme Court has jurisdiction pursuant to 17A A.R.S. Supreme Court Rules, rule 47(e).
Appellant urges that the trial court should have granted a mistrial because the prosecutor, in his opening statement, described Bowie's alleged acts against the four-year-old, and these acts were not later proved at the trial. Appellant postulates that the prosecutor's mentioning the acts prejudiced the jury so that they could not render a fair and impartial verdict on the counts relating to the other two children.
This is a very difficult issue to resolve, for when one is accused of crimes as reprehensible as those before us, the jury might easily be swayed by hearing improper matters. It may be prejudicial error to admit evidence suggesting that the accused has committed bad acts, other than the crimes for which he is on trial. State v. Serrano, 17 Ariz.App. 473, 498 P.2d 547 (1972). Corrective instructions of the court sometimes cannot erase the effect of such error. Serrano, supra.
However, at the time of the prosecutor's remarks, the jury had before it an indictment charging Bowie with the crimes against the four-year-old. Bowie was at that time on trial for these crimes. So long as the charges relating to the four-year-old were before the jury, the prosecutor had a right to discuss them in his opening statement.
The prosecutor's opening statement did not mention bad acts other than the acts under consideration at this trial. Furthermore, the opening statement did not contain Evidence. The court instructed the jury that what the prosecutor and defense counsel said was not evidence, and that they must base their verdict only on the evidence. Additionally, the judge told the jury that he had ordered the dismissal of the counts involving the four-year-old and that the jury was not to consider these charges.
The opening statement should not contain any facts which the prosecutor cannot prove at trial. State v. Burruell, 98 Ariz. 37, 401 P.2d 733 (1965). In the instant case, proof of the facts relating to the four-year-old could come only from the child's testimony, and the child's competency as a witness was not ruled upon until just before he was to testify.
At the time of the opening statement, the prosecutor could not be sure that he could prove the acts against the four-year-old, but the record supports a good-faith belief that the four-year-old would be permitted to testify. The child was bright for his age; he clearly recalled the events surrounding the alleged criminal acts. The psychologist who evaluated him stated that he showed evidence of conscience development, and could distinguish between truth and untruth, that he had "some idea" of moral or ethical standards, and some sense of right and wrong. The psychologist also said that the child was a " pretty alert" observer, had adequate verbal ability to state what he saw, that he probably was capable of relating events that he saw or that had happened to him, and that testing seemed to indicate that the child was basically honest.
Under the facts of this case, the prosecutor's remarks concerning the alleged crimes against the four-year-old were not error because the remarks referred to crimes presently before the jury, and there was justification for believing that evidence of these crimes would be presented through the four-year-old. Any possible prejudice from the opening statement was overcome by the court's cautionary instructions that evidence did not come from the attorneys and that the verdict must be determined only by reference to the evidence, and that he was withdrawing the counts charging crimes against the four-year-old from the jury's consideration. Fundamental to our holding is the fact that the prosecutor referred to the acts only in the opening statement, and he never mentioned these acts against during the trial.
We note that the defense attorney could have moved to determine the competency of the four-year-old before trial and obtained a dismissal of the charges relating to this child before the opening statement. Then the prosecutor could not have mentioned the acts which the defendant allegedly committed upon the four-year-old.
Appellant next contends that the court erred in refusing to give the following instruction:
"In order for you to return a verdict of guilty upon the testimony of the witness named in the Indictment alone, each witness' story must be reasonable, consistent and not inherently impossible and improbable to a degree that would make it incredible to the ordinary man."
We find no error because the ideas contained in this instruction are adequately covered in the instructions which the court did give to the jury.
Appellant charges the trial court with error in refusing to require the state to elect to present to the jury a single count against each victim. It is appellant's theory that it was prejudicial to him to allow the same transaction to go to the jury under two different counts.
As a general principle, it is prejudicial and reversible error to submit separate charges to the jury where each offense contains identical elements, where identical facts are used to support each charge, and where the only difference is in the name or number of the statute under which the charge is made. State v. Hunt, 2 Ariz.App. 6, 406 P.2d 208 (1965). Nevertheless, it is not error to submit multiple charges to the jury where the offenses contain overlapping elements and the same fact situation is used to support each charge. State v. Jorgenson, 108 Ariz. 476, 502 P.2d 158 (1972).
If the jury finds the accused guilty of two charges arising from the same transaction and there are not sufficient independent facts to support the elements of both crimes, the trial judge should then set aside the lesser conviction. State v. Tinghitella, 108 Ariz. 1, 491 P.2d 834 (1971); State v. Taylor, 109 Ariz. 267, 508 P.2d 731 (1973); See also A.R.S. § 13-1641.
Appellant was charged with committing lewd and lascivious acts upon the girl (count IV), with molesting her (count III) and the seven-year-old boy (count V), and with committing sodomy upon the seven-year-old boy (count VI). Because the evidence did provide a sufficient basis for these charges, it was proper to submit all four charges to the jury. Jorgenson, supra. Appellant was found guilty of counts III, IV and V and acquitted of count VI. The trial court vacated the verdict of guilty on count IV (lewd and lascivious against the girl) and entered a judgment of acquittal upon that count. Thus, appellant was ultimately convicted and sentenced for only two counts, each based upon a different event. This is a proper result under the authorities previously cited.
Another issue raised by appellant is that his Fifth Amendment rights were denied by the state's comment upon his post-arrest silence. This contention is based upon the following exchange between the deputy county attorney and the investigating officer:
Q. After reading the defendant his rights let me back up a little bit. Is the defendant that you arrested at apartment F-2 present in the courtroom here today?
A. Yes, sir, he is.
Q. Where is he?
A. He is sitting by Mr. Hunter, just to the left.
MR. SHELLEY (deputy county attorney): May the record reflect that he has indicated the defendant?
Q. After you read Mr. Bowie his rights did Mr. Bowie make any statements to you?
A. No.
MR. HUNTER (defense counsel): Objection, if Your Honor please. I object most strongly to this. That is an improper question.
Generally, it is error for the prosecutor to draw a derogatory inference from the fact that the accused declined to speak to police upon his arrest. State v. Shing, 109 Ariz. 361, 509 P.2d 698 (1973); See also Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). However, in the present case, the prosecutor never commented upon the accused's silence during custodial interrogation; the prosecutor merely questioned the officer about the events of the arrest and inquired whether the defendant said anything.
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State v. Dansdill
...commenting on a defendant’s exercise of the significant rights protected by the Fifth Amendment." Id. ; see also State v. Bowie , 119 Ariz. 336, 341, 580 P.2d 1190, 1195 (1978) ("the state should scrupulously avoid any indication that the accused kept silent").¶49 In applying those standard......
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...invocation of his Fifth Amendment rights, and thus was improper. See Doyle, 426 U.S. at 618–19, 96 S.Ct. 2240;State v. Bowie, 119 Ariz. 336, 341, 580 P.2d 1190, 1195 (1978). When a defendant in custody initially speaks with the police but then asks to remain silent, the prosecutor may comme......
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