State v. Davis
| Decision Date | 15 March 1983 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 672 P.2d 480,137 Ariz. 551 |
| Parties | STATE of Arizona, Appellee, v. Earl Sidney DAVIS, Appellant. 5585. |
| Court | Arizona Court of Appeals |
The defendant brings this appeal from his conviction of one count of molestation of a child, a class two felony, 1 following a trial by jury. He raises four issues for our consideration: (1) Whether the trial court abused its discretion in denying motions to strike the entire jury panel and the defendant's motions to strike two prospective jurors for cause; (2) Whether the trial court erred in reconsidering its previous ruling on defendant's motion in limine to preclude the admission of defendant's prior convictions, and in allowing the admission of one prior conviction for impeachment purposes; (3) Whether the trial court erred in allowing the state to amend the information to allege prior convictions for the purpose of enhancing punishment; (4) Whether the trial court erred in refusing to give defendant's requested instructions on sexual abuse and contributing to the delinquency of a minor as lesser included offenses. We affirm.
The facts of this case involve an incident which occurred August 20, 1980, when the defendant allegedly touched the genitals of the then four year old female victim. The evidence introduced at trial revealed that the victim went to the home of the mother of defendant on August 20, 1980. Apparently the mother of the defendant was an elderly lady, and the children in the neighborhood went to her home frequently to visit. On the morning of August 20, 1980, the victim, her eight year old sister, and another young girl visited the home of Mrs. Davis. The defendant was there and was watching television with the young girls when a commercial for the movie "10" came on. The little girls began to giggle at the sight of the skimpily clad actress in the commercial, and the defendant asked them if they would like to see some "nasty" pictures which he could bring over from another apartment. Two of the girls responded in the negative, but the victim initially responded "yes", and then quickly changed her response to "no". Sometime that morning, the two older girls left the home of defendant's mother, but the victim remained and at approximately noon, she called her mother to ask permission to stay and have pancakes with Mrs. Davis and the defendant. The victim's mother granted her permission to stay, and at approximately 2:00 p.m., the victim returned home, according to her mother, unusually calm and wide-eyed, telling her mother that the defendant had told her a secret she was not supposed to tell. The mother persuaded the child to tell her what had happened.
The victim told her mother that she was alone in the kitchen with the defendant when he asked her to get his underwear. He removed his jeans in front of her in the kitchen, and then put on his underwear. He lifted the victim onto the kitchen counter and used both hands to touch her vagina. In the victim's words, "he opened where I went to the bathroom." After that, he told her not to tell anyone, and she returned home.
By information filed September 8, 1980, the defendant was charged with the crime of molestation of child. On February 25, 1981, the state filed an addendum to the information alleging a prior conviction. The defendant filed a motion to strike the addendum on the grounds that it was untimely filed. The trial court denied the motion on March 25, 1981. Also prior to trial, the defendant filed a motion in limine requesting the court to preclude the state from impeaching the defendant with the prior convictions. The motion was argued prior to the first trial in this cause, and the court granted defendant's motion. A mistrial was declared at the conclusion of the first trial because the jury was unable to reach a verdict. The case was set for a new trial before another jury.
On the day the second trial was to begin, the state requested the court to reconsider its previous ruling precluding the use of defendant's prior convictions for impeachment purposes. Following argument, the trial court determined that the probative value of the admission of at least one prior conviction outweighed its prejudicial effect and thus granted the state's motion to allow impeachment of the defendant with a 1980 conviction for theft but precluded impeachment with a 1975 conviction for burglary.
During the selection of the jury, nine jurors were stricken for cause by the trial court. The court struck some of the jurors due to scheduling conflicts and others because of their stated inability to be fair and impartial. During voir dire, one of the prospective jurors, Mr. Timewell, told the court that he was related to an attorney who was or had been a prosecutor, and that he, Mr. Timewell, personally had strong feelings about the type of crime with which the defendant was charged in this case. During a recess, Mr. Timewell approached the defense counsel and the prosecutor and indicated that he wanted to talk to them about a matter which was not brought up during voir dire. Following the recess the court, at the request of defense counsel, held an in chambers conference with Mr. Timewell where both counsel were allowed to question him. The defendant moved to strike Timewell from the jury for cause, and the trial court denied the motion. Subsequently, the defendant used a preemptory challenge to strike Mr. Timewell.
Another member of the jury venire, Ms. Dorn, told the court during voir dire that she had been married to a deputy county attorney for 13 years, and because of what she had learned about trial "techniques" she did not believe she could be a fair and impartial juror. The trial court dismissed Dorn for cause.
Venireman Grammer, a minister, told the court that during his 21 years of being a pastor, he had dealt with a number of cases involving child molesting, and concluded that he would not be a fair and impartial juror. The court excused Grammer for cause. Venireman Bartel expressed a similar reservation to that of Grammer, and the court excused him for cause also.
At one point during voir dire, the court made the following statement with regard to Dorn's and Grammer's comments:
Now, Ladies and Gentlemen, Miss Dorn made some statements. I don't quite know what she intended by them, but I do want to see if any of you happen to feel the same way that Miss Dorn felt about the court system. And I am not sure just exactly which way she felt.
But if you have any strong feelings for or against the court system, for or against our system of justice, for or against prosecutors or defense attorneys, I would like to hear from you at this point.
One person responded to the question indicating that The trial court pointed out that this was a good trait for a juror to have. The trial judge was apparently concerned that the comments by the prospective jurors Timewell, Dorn, and Grammer might have prejudiced the entire panel and he proceeded to question the jury as follows:
One of the concerns that I have quite candidly--and it is something that we were just discussing--is whether that any of you feel that your own opinions have been tainted or colored by some of the comments that some of your other potential fellow jurors have made.
Mr. Grammer in the back row, who was excused previously, apparently is a pastor and has some very strong feelings--so strong in fact about this kind of offense that he felt he could not sit as a fair and impartial juror. The question before you is whether any of you think that because of those kinds of comments that he made and some of our other potential jurors have made that you can no longer decide this case based exclusively on the evidence that you hear in the court room. If so, please be candid and honest enough to tell me.
In response to the court's comment, a potential juror, Ms. Dorris, indicated that she believed the comments of the other jurors had so affected her as to make her unable to sit as a fair juror and she was excused for cause.
Another venireman, Feusahrens, a police assistant, was questioned in voir dire concerning his employment. He stated that he attended four weeks at the police academy, had been a civilian employee of the Phoenix Police Department for seven years, and spends 40 hours per week writing police departmental reports. He also indicated that he would not tend to believe the child of a police officer (the victim in this case) any more readily than he would believe the testimony of an ordinary citizen.
The defendant moved to strike the entire jury panel on the grounds that they had been prejudiced by the remarks of Timewell, Dorn, Bartel and Grammer. The motion was denied. The defendant also moved to strike jurors Timewell and Feusahrens for cause, and those motions were denied.
For his first issue on appeal, the defendant contends that the trial court erred in denying his motion to strike the jury panel, because the exchanges between the court and the veniremen Timewell, Dorn, Bartel and Grammer fatally prejudiced the entire panel. In order to properly address the merits of defendant's contention, it is necessary to specifically set out those portions of the record.
The first comments which the defendant alleges tainted the jury occurred while the trial court was questioning Timewell, who had indicated that he knew a prosecutor, that the prosecutor was related to him, and that...
To continue reading
Request your trial
-
State v. Lavers
...for cause has the burden of establishing that the juror is incapable of rendering a fair and impartial verdict." State v. Davis, 137 Ariz. 551, 559, 672 P.2d 480, 488 (App.1983) (citing State v. Munson, 129 Ariz. 441, 631 P.2d 1099 (App.1981); State v. Rose, 121 Ariz. 131, 589 P.2d 5 In thi......
-
State v. Doerr
... ... Reasoner, 154 Ariz. 377, 384, 742 P.2d 1363, 1370 (App.1987) (appellant had burden of showing that remarks of excused juror prejudiced others); State v. Davis, 137 Ariz. 551, 558, 672 P.2d 480, 487 ... Page 1174 ... (App.1983) (court will not assume that panel was prejudiced) ... ¶19 Defendant points to a recent Ninth Circuit decision in which a prospective juror's remarks were found to have tainted an entire panel. See Mach v ... ...
-
State v. Eddington
...including fact that detective knew several police witnesses and worked for same department); cf. State v. Davis, 137 Ariz. 551, 555, 559-60, 672 P.2d 480, 484, 488-89 (App.1983) (upholding refusal to strike civilian police assistant for cause, emphasizing "he was not acquainted with the pol......
-
State v. Green
...upon his testimony for a defense does not preclude impeaching his credibility with prior convictions."); State v. Davis, 137 Ariz. 551, 561, 672 P.2d 480, 490 (App.1983) ("[T]he sole contested issue was the credibility of the victim. Defense counsel was able to effectively cross-examine sev......