State v. Callaway

• Decision Date: 26 November 1975
• Docket Number: CA-CR,Nos. 2,s. 2
• Citation: 25 Ariz.App. 267,542 P.2d 1147
• Parties: The STATE of Arizona, Appellee, v. Willie Edward CALLAWAY, Appellant. 604, 2 642--2.
• Court: Arizona Court of Appeals

Page 1147

542 P.2d 1147

25 Ariz.App. 267

The STATE of Arizona, Appellee, v. Willie Edward CALLAWAY, Appellant.

Nos. 2 CA-CR 604, 2 CA-CR 642--2.

Court of Appeals of Arizona, Division 2.

Nov. 26, 1975.

Rehearing Denied Dec. 24, 1975.

Review Granted Jan. 20, 1976.

Bruce E. Babbitt, Atty. Gen. by William J. Schafer, III, and Shirley H. Frondorf, Asst. Attys. Gen., Phoenix, for appellee.

John M. Neis, Pima County Public Defender by Kenneth J. Peasley, Asst. Public Defender, Tucson, for appellant.

OPINION

KRUCKER, Judge.

Willie Edward Callaway was charged with sodomy, A.R.S. Sec. 13--651 (Supp.1973) and committing a lewd and lascivious act in an unnatural manner, A.R.S. Sec. 13--652 (Supp.1973). He was tried before a jury and convicted on both counts. The trial court sentenced him to six years probation on the sodomy conviction and three to five years in the state prison on the lewd and lascivious conviction. He now appeals.

In the evening of September 13, 1974, Margaret Curlin went to the Davis Monthan NCO Club with Carmen Taylor. There they met Tom Fry and appellant. The four had numerous drinks during the evening and Curlin danced with Fry.

At about 1:25 a.m. on September 14, 1974, Curlin and Fry left the club and drove to Curlin's apartment. Taylor and appellant, who left in another car, soon joined them. Once inside the apartment, Taylor and appellant went into a bedroom while Fry and Curlin remained in the living room. Taylor and appellant started to have intercourse, but stopped when Taylor said she was in love with someone else. Taylor and appellant came out of the bedroom at Curlin's insistence.

Fry, Taylor and appellant later left Curlin's apartment together. Appellant returned in a few minutes to retrieve his white coat and stayed to eat some eggs that had been prepared earlier. Curlin testified that shortly after his return appellant grabbed her by the hair and dragged her toward the bedrooms. When she resisted, appellant threw her against the wall. He dragged her into a bedroom, deposited her on the bed, and tore off her panties and panty-hose. He then forced her to have anal and oral intercourse with him. Curlin bit his penis, whereupon he struck her in the eye and knocked her out.

Appellant denied Curlin's account of what happened after he returned to her apartment. He testified that he and Curlin started kissing in the living room, disrobed, and had consensual vaginal intercourse in one of the bedrooms. He denied that he had thrown Curlin against the wall, or struck her in the eye, or forced her to have anal intercourse with him. He testified that in the course of their lovemaking, Curlin voluntarily placed her mouth on his penis. He admitted slapping her, but stated that he had done so merely to calm her down.

Curlin's next-door neighbor testified that he awoke to Curlin's screams at about 3:00 a.m. on the night in question. He heard something thumping against the wall and thought he heard Curlin calling his name.

Curlin awoke around 10:30 a.m. when her boyfried arrived home. She had a black eye and numerous bruises. When police officers interviewed her, she was hysterical.

Appellant presents ten questions for review but the issue we deem dispositive of this appeal is whether A.R.S. Secs. 13--651 and 13--652 violate the constitutionally protected right of privacy. We think they do, and hold that both sections are facially void. Appellant's convictions must therefore be reversed.

The state contends that because the evidence indicated appellant's acts were performed without Curlin's consent, appellant has no standing to assert the right of sexual privacy possessed by consenting adults. We disagree. It is true that under United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960) a litigant cannot attack a statute's constitutionality based on the rights of third persons not before the court if the statute is constitutional as applied to him. This rule, however, has numerous exceptions. United States v. Brewer, 363 F.Supp. 606 (M.D.Pa.1973), aff'd, 491 F.2d 751 (3rd Cir. 1973). One such exception applies where a denial of standing would impair the rights of third parties who have no effective way to preserve those rights. Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953). Faced with a contention similar to that made by the state in the case at bench, the New Mexico Court of Appeals in State v. Elliott, 88 N.M. 187, 539 P.2d 207 (1975), certiorari granted, August 11, 1975, noted:

'There is no record in New Mexico of the prosecution of openly consenting adults under the sodomy statute. Because consenting adults are not, in practice, subject to prosecution for sodomy, they are denied a forum in which to assert their own rights. . . .

The fact that consenting adults in New Mexico have not, in practice, been subject to prosecution for sodomy does not demonstrate that their rights are not violated by the sodomy statute. The threat of prosecution remains.

Since attack by consenting adults against infringement of their constitutional rights is impractical and unlikely, this Court can decide the constitutional question by analogy to the Raines exception to the rule of practice on standing to challenge a statute's constitutionality.' 539 P.2d at 211.

We agree with the New Mexico Court of Appeals and hold that appellant may properly assert the rights of consenting adults.

Consideration of the merits must begin with a detailed examination of State v. Bateman, 25 Ariz.App. 1, 540 P.2d 732 (1975), a decision of Division One of this court. In Bateman, as in this case, the defendant was charged under A.R.S. Secs. 13--651 and 13--652 with sodomy and committing a lewd and lascivious act in an unnatural manner. The alleged victim was his wife. The trial court instructed the jury that consent was a defense to both crimes. The jury convicted defendant, impliedly finding that his wife had not consented to his acts. Defendant moved to dismiss the information and the trial court granted the motion, holding that A.R.S. Secs. 13--651 and 13--652 were unconstitutional as violative of the right to privacy. The trial court concluded that its earlier attempt to salvage the statutes by construing them to require lack of consent was improper.

On appeal by the state, Division One affirmed. The court examined case law from other jurisdictions and noted that it could find no case that had ever sustained on constitutional grounds the conviction of a consenting married couple under a statute similar to A.R.S. Secs. 13--651 and 13--652. It then formulated the principal issue as follows:

'. . . whether the right of marrieds to conduct such sexual activities in private is a 'fundamental' right under Griswold (Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965)) and thus cloaked with constitutional protection against state interference.' 540 P.2d at 735.

In deciding this issue, the court stated it would look to the traditions and collective conscience of society to determine whether the right of marital sexual privacy was so rooted therein as to be deemed fundamental. After a review of the history of the legal prohibition of 'unnatural' sexual acts, the court concluded that:

'. . . consenting sexual activity indulged in in private is one of the 'fundamental' rights inherent in the marriage relationship and as such constitutionally protected from government regulation in the absence of a 'compelling state interest' under the rationale of Griswold v. Connecticut, supra. We have looked in vain for a 'compelling state interest' in regulating consenting sexual activity between marrieds although some 'rationale' bases present themselves, i.e., upholding human dignity, discouragement of 'abnormal' sexual behavior, etc. We, therefore, hold that Arizona cannot constitutionally criminalize consenting sexual behavior carried on by a married couple in private.' 540 P.2d at 736.

The court declined defendant's invitation to rule on the constitutionality of A.R.S. Secs. 13--651 and 13--652 as applied to consenting adults generally. 540 P.2d at 737, n. 4.

We agree with Bateman as far as it goes. Our task in this case is to resolve the question that Division One properly declined to answer.

The United States Supreme Court first recognized the constitutional right of privacy in Griswold v. Connecticut, supra, stating that:

'. . . specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. . . . Various guarantees create zones of privacy.

. . . the right of privacy which presses for recognition here is a legitimate one.' 381 U.S. at 484, 85 S.Ct. at 1681, 14 L.Ed.2d at 514--15.

Later in its opinion the court presented what many later cases have inaccurately termed a 'eulogy' of the marital relationship:

'We deal with a right of privacy older than the Bill of Rights--older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.' 381 U.S. at 486, 85 S.Ct. at 1682, 14 L.Ed.2d at 516.

Because of this language, may cases immediately following Griswold assumed that the right of privacy inhered in the marriage relationship alone. In Pruett v. State, 463 S.W.2d 191 (Tex.Crim.App.1970), the court refused to strike down the Texas sodomy statute as violative of unmarried persons' right to privacy because it viewed the Griswold rationale as based on the marital relation. In Washington v. Rodriguez, 82 N.M. 428, 483 P.2d 309 (1971), defendants were prison inmates who were convicted of sodomy. The court held, inter alia, that the Griswold...