State v. Dale

• Court: Arizona Court of Appeals
• Writing for the Court: KRUCKER; HOWARD; HATHAWAY
• Citation: State v. Dale, 544 P.2d 241, 25 Ariz.App. 417 (Ariz. App. 1975)
• Decision Date: 31 December 1975
• Docket Number: CA-CR,No. 2,2
• Parties: The STATE of Arizona, Appellee, v. David Wayne DALE, Appellant. 544.

Page 241

544 P.2d 241

25 Ariz.App. 417

The STATE of Arizona, Appellee, v. David Wayne DALE, Appellant.

No. 2 CA-CR 544.

Court of Appeals of Arizona, Division 2.

Dec. 31, 1975.

Rehearing Denied Feb. 9, 1976.

Review Granted March 2, 1976.

Bruce E. Babbitt, Atty. Gen., Phoenix, by John S. O'Dowd, Asst. Atty. Gen., Tucson, for appellee.

John M. Neis, Pima County Public Defender by Charles L. Weninger, Asst. Public Defender, Tucson, for appellant.

OPINION

KRUCKER, Judge.

Appellant, David Wayne Dale, was charged with rape and kidnap for rape on Ann Dallas, and with rape, sodomy and committing a lewd and lascivious act on Deborah Kerr. The charges that concerned Dallas were tried together with those that concerned Kerr. At the end of the trial, the jury returned a verdict of guilty on all the charges. From the judgment of conviction, appellant brings this appeal.

Appellant contends that (1) the trial court erred in denying his motion to sever counts one and two of the indictment from counts three, four and five; (2) the trial court abused its discretion in failing to preclude the testimony of Ann Dallas and Margaret Reichelt because the prosecutor did not make them available for discovery; (3) the trial court erred in allowing Margaret Reichelt to relate an out-of-court declaration made to her by Ann Dallas; (4) A.R.S. Sec. 13--652 (lewd and lascivious act) is unconstitutionally vague; and (5) the trial court's failure to sever counts one and two from the remaining counts violated appellant's right not to be a witness against himself and to be tried by an impartial jury.

At about 12:30 a.m. on September 4, 1974, Ann Dallas was hitchhiking near the intersection of Speedway and Country Club in Tucson. Appellant picked her up in his car. He drove east on Speedway, but then made a 180-degree turn at Alvernon and proceeded west. When Dallas asked where they were going, appellant drew a knife and said, 'Never mind.' Appellant drove past Silverbell Road on Speedway and parked in the desert. He then ordered Dallas into the back seat, struck her several times to force her to comply, and then raped her.

After the rape was completed, appellant drove Dallas to a local restaurant and they had breakfast. While appellant was momentarily absent from the table, Dallas wrote down his description. After breakfast, appellant drove Dallas to the Speedway-Swan area and pulled into an alley. Before releasing her, appellant stabbed her with a knife. Dallas then walked to a Jack-in-the-Box and called Margaret Reichelt to pick her up. When Reichelt arrived, Dallas told her, 'I've just been raped.'

On October 5, 1974, appellant encountered Deborah Kerr in a parking lot next to Choo-Choo's, a Tucson bar. Kerr agreed to go with appellant to pick up some friends of his. Instead of picking up friends, however, appellant drove Kerr to the same desert area where he had taken Ann Dallas a month before. After he parked his car, appellant struck and choked Kerr and pulled her hair. He then raped and sodomized her and forced her to perform fellatio on him.

Appellant then drove Kerr back to Tucson. At the intersection of Grant and Campbell she was able to jump out of his car. The following morning she reported appellant to the police.

Appellant first contends the court erred in refusing to grant his motion to sever counts one and two (rape and kidnap for rape on Ann Dallas) from counts three through five (rape, lewd and lascivious acts, and sodomy on Deborah Kerr). The offenses were joined in the same indictment pursuant to Rule 13.3(a)(3), Rules of Criminal Procedure, 17 A.R.S., which provides:

'a. Offenses. Provided that each is stated in a separate count, 2 or more offenses may be joined in an indictment, information, or complaint, if they:

* * *

* * *

(3) Are alleged to have been a part of a common scheme or plan.'

Rule 13.4(a) provides:

'In General. Whenever 2 or more offenses or 2 or more defendants have been joined for trial, and severance of any or all offenses, or of any or all defendants, or both, Is necessary to promote a fair determination of the guilt or innocence of any defendant of any offense, the court may on its own initiative, and shall on motion of a party, order such severance.' (Emphasis added)

The comment to Rule 13.4(a) states:

'This provision is intended to maintain the previous Arizona practice of allowing discretionary severance on a case-by-case basis. However, unlike the absolute discretion provided by former Rule 254, see State v. Webb, 101 Ariz. 307, 419 P.2d 91 (1966), it provides a definite standard, albeit a flexible one.'

Here the trial court's decision whether severance was necessary to promote a fair determination of appellant's guilt or innocence turned on whether or not the evidence of the Kerr incident would be admissible in a separate trial on the charges arising out of the Dallas incident, and vice versa. If it would, then the granting of severance would accomplish nothing and could reasonably be viewed as unnecessary to promote a fair determination of guilt or innocence.

As a general rule, the prosecution may not introduce evidence that the defendant committed a bad act other than the one for which he is being tried. State v. Keith, 24 Ariz.App. 275, 537 P.2d 1333 (1975). Such evidence is admissible, however, if the two acts have common features indicating a common design, scheme or plan. State v. Valdez, 23 Ariz.App. 518, 534 P.2d 449 (1975). As our Supreme Court stated in State v. Akins,94 Ariz. 263, 383 P.2d 180 (1963):

'Similarities between the offenses . . . must be in those important aspects where normally there could be expected to be found differences.' 94 Ariz. at 266, 383 P.2d at 183.

We think evidence of the Kerr and Dallas incidents meets the Akins test. In both instances appellant used his car to pick up the victims and both entered the car voluntarily. Both times appellant initially purported to take the victims to places they wished to go, but then changed direction and headed for the same desert location. In both cases appellant forced his victims to submit by the use of physical violence or the threat thereof. Further, in both cases appellant drove his victims back to Tucson instead of leaving them in the desert. We think these similarities are in aspects where one would normally expect to find differences. See, State v. Kelly, 111 Ariz. 181, 526 P.2d 720 (1974); State v. Thomas, 110 Ariz. 106, 515 P.2d 851 (1973); State v. Finley, 85 Ariz. 327, 328 P.2d 790 (1959). The evidence of both the Kerr and Dallas incidents would therefore be admissible in separate trials under the common scheme or plan exception. The trial court accordingly did not abuse its discretion in holding that severance was unnecessary to promote a fair determination of guilt or innocence.

Appellant also contends that the trial court abused its discretion in failing to preclude the testimony of Ann Dallas and Margaret Reichelt under Rule 15.7, Rules of Criminal Procedure, 17 A.R.S. On November 4, 1974, appellant requested that the court order the prosecution to produce Ann Dallas for deposition on November 15, 1974. The trial court granted the request. The prosecution had difficulty locating Dallas, who was in Massachusetts, and hence appellant was unable to depose her until November 26, 1974, the day before the trial. After the deposition, appellant raised no objection to the introduction of her testimony.

During the deposition Margaret Reichelt was mentioned as a potential witness. When the prosecution proposed to call her, appellant objected because she had not been disclosed as a witness and he had not been able to interview her. The trial court granted a recess to allow appellant...