State v. Charo

• Decision Date: 21 April 1988
• Docket Number: No. 6276,6276
• Citation: 754 P.2d 288,156 Ariz. 561
• Parties: STATE of Arizona, Appellee, v. Robert Phillip CHARO, Appellant.
• Court: Arizona Supreme Court

Page 288

754 P.2d 288

156 Ariz. 561

STATE of Arizona, Appellee, v. Robert Phillip CHARO, Appellant.

No. 6276.

Supreme Court of Arizona, In Banc.

April 21, 1988.

Robert K. Corbin, Atty. Gen. by William J. Schafer III, Chief Counsel, Jack Roberts, Asst. Atty. Gen., Phoenix, for appellee.

Richard J. Katz, Phoenix, for appellant.

HOLOHAN, Justice.

The defendant Robert Phillip Charo was tried and convicted of first degree murder, robbery, and forcible sexual assault. The defendant was sentenced to death for first degree murder, 8 years for the robbery, and 21 years for sexual assault, the sentences to run consecutively.

Defendant raises numerous issues on appeal. After an exhaustive review we have concluded that the case must be reversed because of error in the reception of evidence which we address in this opinion along with those issues likely to recur on retrial. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3); A.R.S. §§ 13-4031-4035.

The victim and her husband, Ed, were married in January, 1979. Prior to the marriage, Ed and the defendant had been friends and roommates. After the marriage Ed and the defendant remained friends, but many witnesses described how the relationship between the defendant and the victim deteriorated from 1981 to 1983. Eventually the victim told Ed that she hated the defendant and did not wish to have anything to do with him.

Early in the morning of May 31, 1983, Ed returned home from work and discovered the dead, naked body of his wife. She had died from manual strangulation. Semen was found in her vagina, and her wedding ring, clothes and a bed sheet were missing.

The state's case was entirely circumstantial. In addition to showing the poor relationship between the defendant and the victim, the state relied on three pieces of physical evidence linking the defendant to the murder. First, defendant's fingerprint was found on a vaseline jar in the bathroom adjacent to the victim's bedroom. Vaseline was also found on the victim's body. Second, three hairs removed from the victim's back were similar to the defendant's hair and dissimilar to both the victim's and Ed's hair. Finally, in the backyard of the victim's home, footprints were found that had the same tread design as turf shoes Ed had given to defendant as a present.

Defendant denied killing the victim and took the stand in his own behalf. He defended himself with an alibi and evidence of his good character. The defendant explained that he had used the vaseline in the bathroom a few days before the murder to rub on his chapped hands. He maintained that he was wearing boots on the day in question so the footprints could not be his.

Defendant raises a number of evidentiary issues for the first time on appeal. These issues were waived. State v. McDaniel, 136 Ariz. 188, 665 P.2d 70 (1983) (evidence admitted without objection becomes competent evidence for all purposes). In addition, even if these issues were properly preserved, they are without merit. Finding no fundamental error, we limit our review to those issues properly raised on appeal.

The defendant complains that the trial court erroneously admitted hearsay statements made by the victim. The state called Laurel Hadley to testify about a conversation she had with the victim approximately two years before the victim's death. This conversation concerned an incident where the defendant had allegedly attempted to sexually assault the victim while the victim, Ed and the defendant were on vacation. The three of them had been drinking all day when Ed disappeared, leaving the victim and defendant alone.

A. [By Hadley] ... They [the victim and the defendant] had returned to their hotel room where she was--where Bob tried to assault her, is what she said to me.

Q. [By the Prosecutor] And did she give you any further details as to where she is when that first starts?

A. Yes, she did. She said she was looking out of the window; that he came up behind her, grabbed her, was kissing her, trying to kiss her, and threw her on the bed and laid on top of her, tried to get her, you know, like she struggled with him, and then--and eventually broke free.

Q. What then did she say happened when she broke free?

A. She said that she went and locked herself in the bathroom and stayed in there until she heard no more noise from the outside room, and opened it up and looked outside, if he had fallen asleep or whatever, and was asleep, and she let herself out and went to sleep also.

R.T. Dec. 12, 1983 at 65-6.

This conversation between the victim and Hadley occurred approximately a month after the trip. After recounting the incident to Hadley, the victim stated she feared the defendant.

The state argues that the testimony concerning the sexual assault is admissible as evidence of the victim's state of mind, relying on this court's decision in State v. Gause, 107 Ariz. 491, 494-95, 489 P.2d 830, 833-34 (1971), vacated on other grounds, 409 U.S. 815, 93 S.Ct. 192, 34 L.Ed.2d 71 (1972). There we stated that when the identity of the perpetrator is at issue, "expressions of fear by the murder victim, though they may be hearsay, are relevant, have probative value on the issue of identity, and, when in human experience they have sufficient reliability, they should be admitted in evidence." Id.

The state's position on appeal is that Hadley's testimony was offered to show the victim's fear of the defendant. Nothing in Gause supports the proposition that an unwitnessed prior bad act may be proven through hearsay testimony. Gause only permitted the admission of statements concerning the victim's fear of her husband made in her will and to others. The remaining hearsay evidence in Gause constituted public records or threats by her husband made in the presence of others. All of these items fell within well-recognized exceptions to the hearsay rule.

The state argues that even if Hadley's testimony concerning the alleged sexual assault is not admissible under the Arizona Rules of Evidence, ¹ this error is harmless. Where it cannot be said beyond a reasonable doubt that the error had no influence on the jury's verdict, we will reverse. State v. Gamez, 144 Ariz. 178, 696 P.2d 1327 (1985).

First, we note that the state's position that Hadley's testimony, if error, was harmless, was not its position in the trial court. In support of its admissibility, the prosecutor argued that this evidence was important to establish the complete story and to prove the identity of the perpetrator. The fact that the prosecutor used this evidence in both his opening and closing arguments further belies the state's contention that this was a relatively unimportant piece of evidence. ² We also believe that since this homicide involved a sexual assault, the alleged attempt by the defendant, even though two years earlier, might well have been considered as evidence of his disposition towards the victim. Hence, we cannot conclude beyond a reasonable doubt that this did not prejudice the jury against the defendant.

Hadley's description of the alleged sexual assault is not admissible under the rules of evidence. Normally, a prior bad act, not amounting to a conviction, cannot be admitted in evidence. State v. Gamez, 144 Ariz. 178, 696 P.2d 1327; Ariz.R.Evid. 404(b), 17A A.R.S. ³ There is an exception when there are previous attempts on the victim. State v. Jeffers, 135 Ariz. 404, 418, 661 P.2d 1105, 1119 (1983). Such prior attempts may be shown through hearsay testimony if the testimony comes within one of the exceptions to the hearsay rules. Id. However, we have held it improper to use hearsay testimony to prove an unwitnessed prior bad act under the authority of Rule 803(3). ⁴ State v. Christensen, 129 Ariz. 32 36, 628 P.2d 580, 584 (1981). There we stated:

The testimony that the victim said appellant was "capable of anything" and had threatened her were nothing more than statements of "memory or belief to prove the fact remembered or believed." Such assertions are not within the Rule 803(3) exception and were not admissible.

The perniciousness of the present evidence is that it involved a prior sexual assault, but the proof of the act came only through hearsay. Hadley's testimony was not offered solely to prove the victim's then existing state of mind under Rule 803(3). Like the threat in Christensen, the testimony about the victim's statement of what happened in the hotel was not a statement of her state of mind but a statement of memory or belief. Hadley's testimony was offered to prove the truth of that memory or belief, and it was not admissible.

The state urges us to find that the statements were nevertheless admissible under Rule 804(b)(5). ⁵ In examining the evidence presented we find these statements have little or no circumstantial reliability. Not only were the statements completely uncorroborated, the declarant's relationship to the defendant was troubled from the outset, and she had expressed her dislike for the defendant before. The information was related approximately one month after the alleged assault and testified to more than two years later. When the incident allegedly occurred, the declarant was drunk, and the dangers of misperception are necessarily present in the statements. See M. Udall & J. Livermore, Law of Evidence § 121 (2d ed. 1982). Because we find this evidence to be inadmissible under the Rules of Evidence and we cannot say beyond a reasonable doubt that the error was harmless, we must reverse the defendant's conviction and remand for a new trial.

We also note that Hadley testified that the victim stated she feared the defendant. Formerly, under Gause, this was admissible. However, our adoption of the Arizona Rules of Evidence raises serious questions about the continued vitality of Gause. In Christensen, 129 Ariz. at 36, 628 P.2d at 584, it was stated in dicta that the Gause rule was still to be followed under Rule 803(3) when identity was at issue. Since the issue...