State v. Dixon

Decision Date06 May 2011
Docket NumberNo. CR–08–0025–AP.,CR–08–0025–AP.
Citation250 P.3d 1174,226 Ariz. 545
PartiesSTATE of Arizona, Appellee,v.Clarence Wayne DIXON, Appellant.
CourtArizona Supreme Court


Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section, Jeffrey A. Zick, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.Bruce Peterson, Office of the Legal Advocate By Consuelo M. Ohanesian, Deputy Legal Advocate, Phoenix, Attorneys for Clarence Wayne Dixon.


HURWITZ, Vice Chief Justice.

¶ 1 Clarence Wayne Dixon was convicted of first degree murder and sentenced to death. We have jurisdiction over his automatic appeal under Article VI, Section 5(3) of the Arizona Constitution and A.R.S. §§ 13–4031 and 13–4033(A)(1) (2011).1


¶ 2 On January 6, 1978, Deana Bowdoin, a 21–year–old Arizona State University senior, had dinner with her parents and then went to a nearby bar to meet a female friend. The two arrived at the bar at 9:00 p.m. and stayed until approximately 12:30 a.m., when Deana told the friend she was going home and drove away alone.

¶ 3 Deana and her boyfriend lived in a Tempe apartment. He returned to their apartment at about 2:00 a.m. after spending the evening with his brother and found Deana dead on the bed. She had been strangled with a belt and stabbed several times.

¶ 4 Investigators found semen in Deana's vagina and on her underwear, but could not match the resulting DNA profile to any suspect. In 2001, a police detective checked the profile against a national database and found that the profile matched that of Clarence Dixon, an Arizona prison inmate. Dixon had lived across the street from Deana at the time of the murder. None of Deana's friends or family knew of previous contact between her and Dixon.

¶ 5 Dixon was charged with first degree murder and chose to represent himself. The jury found that he had committed both premeditated and felony murder. In the aggravation phase, the jury found that Dixon had previously been convicted of a crime punishable by life imprisonment, A.R.S. § 13–751(F)(1), and that the murder was especially cruel and heinous, A.R.S. § 13–751(F)(6). In the penalty phase, the jury determined that Dixon should be sentenced to death.

A. Prosecutorial Misconduct

¶ 6 A woman testified at trial that Dixon sexually assaulted her in 1985 while she was a 21–year–old student at Northern Arizona University. The court admitted this testimony under Arizona Rule of Evidence 404(c) after conducting a pre-trial evidentiary hearing. Dixon does not deny that he committed the 1985 rape, but claims that because the medical examiner could not conclusively opine that Deana had also been raped, the prosecutor committed misconduct by offering the testimony of the 1985 victim.

1. Standard of review

¶ 7 A defendant seeking reversal of a conviction for prosecutorial misconduct must establish that (1) misconduct is indeed present; and (2) a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying [the] defendant a fair trial.” State v. Velazquez, 216 Ariz. 300, 311, ¶ 45, 166 P.3d 91, 102 (2007) (alteration in original) (internal quotation marks omitted). Because Dixon made no claim of prosecutorial misconduct below, we review for fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005).

2. The prosecutor did not commit misconduct

¶ 8 The trial judge ruled the 1985 victim's testimony admissible after conducting a pre-trial evidentiary hearing. At trial, the prosecutor offered only the evidence that the judge expressly permitted in his pre-trial order. This is plainly not misconduct.

¶ 9 Dixon nonetheless argues that the prosecutor committed misconduct because he knew that the State could not prove that Deana had been raped, and the prior acts therefore could not demonstrate “an aberrant sexual propensity to commit the crime charged,” as Rule 404(c)(1)(B) requires. The jury, however, convicted Dixon of felony murder, and rape was the charged predicate felony. On appeal, Dixon has not directly challenged the sufficiency of the evidence to support that verdict.

¶ 10 In any event, the record does not support Dixon's argument. Although the testifying medical examiner could not independently verify that Deana had been raped, he refused to rule out a sexual assault. Rather, he affirmed that “rape can occur with no injuries.”

¶ 11 There was ample evidence from which the jury could conclude that Deana had been raped. She had left a bar alone at 12:30 a.m. and was found dead in her apartment, with a belt tightly cinched around her neck, only 90 minutes later. Dixon's semen was found on her underpants (which she had first put on that evening) and in her vagina. Deana had no known previous acquaintance with Dixon. She had indentations on her right wrist, indicating she had been restrained. Her clothing was disheveled, and she had urinated on the bed. Dixon's claim that the prosecutor “misled the trial court as to whether Deana had been raped finds no support in the record.

B. Admissibility of the Rule 404(c) Evidence

¶ 12 Although Dixon does not directly argue that the other acts evidence was improperly admitted, that argument underpins his misconduct allegations. Assuming that the argument is before us, we find it unavailing.

¶ 13 To admit evidence of another sexual offense, the trial court must find:

(A) The evidence is sufficient to permit the trier of fact to find that the defendant committed the other act.

(B) The commission of the other act provides a reasonable basis to infer that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the crime charged.

(C) The evidentiary value of proof of the other act is not substantially outweighed by danger of unfair prejudice, confusion of issues, or other factors mentioned under Rule 403....

Ariz. R. Evid. 404(c)(1). As required by State v. Aguilar, 209 Ariz. 40, 49 ¶ 30, 97 P.3d 865, 874 (2004), the trial court made specific findings on each of the three Rule 404(c)(1) requirements before admitting the 1985 victim's testimony. Those findings are well supported by the record.

¶ 14 Dixon was convicted of the 1985 sexual assault. As he conceded below, this conviction satisfies the requirement of Rule 404(c)(1)(A) that the evidence be sufficient to allow the trier of fact to conclude that the defendant committed the other act.

¶ 15 The evidence also provided the superior court a reasonable basis for concluding pursuant to Rule 404(c)(1)(B) that Dixon “has a character trait giving rise to an aberrant sexual propensity to commit the crime charged (sexual assault against non-consenting adult females).” A psychologist and expert on sex offenders testified at the pre-trial hearing about important similarities between the 1985 rape and this case. Both victims were 21–year–old college students with brown hair, brown eyes, and similar height and weight. In each case, a knife was used, the victim was restrained, and homicide was either threatened or occurred. Both victims had apparently been re-dressed after the rape. The expert opined that Dixon had an aberrant propensity to commit sexual assault. Given the expert testimony and the substantial similarities between the two crimes, the trial court's propensity determination was appropriate. See Ariz. R. Evid. 404(c)(1)(B), cmt. to 1997 Amend. (finding can be based on “expert testimony” or other facts).

¶ 16 Rule 404(c)(1)(C) requires that the evidentiary value of the other sexual conduct not be substantially outweighed by the danger of unfair prejudice. The trial judge did not abuse his discretion in concluding that Rule 404(c)(1)(C) was satisfied. In finding the other act not unduly remote, the judge noted that Dixon was out of custody for only about a year between the incidents. Sexual intercourse plainly occurred between Dixon and Deana, so the real question—at least for determining whether the predicate felony of rape occurred—was whether the sex was consensual. Dixon repeatedly intimated during trial that Deana had consented to sex. His 1985 sexual assault of another victim of the same age under strikingly similar circumstances had significant probative value in refuting that claim and establishing that a rape occurred in this case.

C. Physical Restraints

¶ 17 At trial, Dixon was required to wear a stun belt and a leg brace under his clothing. Citing Deck v. Missouri, 544 U.S. 622, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005), he argues that these restraints violated his right to a fair trial.

1. Relevant facts

¶ 18 When Dixon was tried, the Maricopa County Sheriff's Office required in-custody defendants who were dressed in civilian clothing to wear a leg brace and a stun belt while in court. Before trial, Dixon moved only to “exclud[e] the leg brace,” arguing that [t]he wearing of the stun waist belt security device would allow [him] the freedom of expression before the jury that the State will enjoy.”

¶ 19 The trial judge denied the motion, stating that “there are [jail] security policies for all in-custody defendants who dress out in civilian clothes” and refusing to “mak[e] an exception.” The court initially instructed Dixon to remain seated at counsel table in the jury's presence to avoid any possibility that the security devices would be visible to them. Dixon instead sought to move about the courtroom during trial. Expressing concern that the leg brace might cause Dixon to walk awkwardly, the judge said “if you want to make a motion to allow you to stand up or to approach and you waive your right to have the jury not see you walking in a stilted fashion, I'll consider it.”

¶ 20 A week later, Dixon demanded use of a podium to question witnesses. After Dixon acknowledged the risk that a jury might draw an inference from his movement, the judge acceded, stating [t]he Court...

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