State v. Escalante

Decision Date17 July 1986
Docket NumberNos. 1,CA-CR,s. 1
Citation734 P.2d 597,153 Ariz. 55
PartiesSTATE of Arizona, Appellee, v. Edward G. ESCALANTE, Appellant. 8949, 1 8965.
CourtArizona Court of Appeals
OPINION

KLEINSCHMIDT, Judge.

The appellant, Edward G. Escalante, was convicted of five counts of sexual assault, two counts of kidnapping, and two counts of aggravated assault following a trial by jury. The charges arose out of two separate incidents, each involving a different victim. The appellant raises a number of issues on appeal, but we find one of them dispositive and therefore do not consider the rest. The dispositive issue is whether the trial court erred in failing to dismiss the charges against the defendant because the state did not preserve semen samples that had the potential to exonerate the appellant completely. We hold that the trial court did err, and we reverse and remand with directions to vacate the sentences imposed and to dismiss.

In the spring of 1984, two women were accosted eleven days apart by a man in Tempe who forced each one of them into a vehicle at gunpoint, drove them to remote locations, and sexually assaulted them. Several weeks after the second woman was attacked she happened to see the appellant, Edward Escalante, at the drive-in restaurant where she worked. She believed that Escalante was her assailant. The police showed both victims a photo lineup that included the appellant's picture. When both victims selected Escalante as the attacker, the police procured a search warrant for his home and seized a sweatshirt, a green box similar to one described by one of the victims as having been in her attacker's car, and a pellet pistol that resembled a revolver. Because the resolution of this case requires us to assess the weight of the evidence against the defendant, we set forth the facts in detail.

THE FIRST INCIDENT

On the evening of March 20, 1984, the victim, W., a student at Arizona State University was playing backgammon and watching television in a dormitory. She had arrived at the dorm between 6:00 and 8:00 p.m. and during the course of the evening she drank, at the most, two-and-a-half mixed drinks.

At about 11:30 p.m. W. left the dorm and was walking down the street when she was approached by a man who asked her the time. The man had a pistol, and he forced her into a car parked in a nearby lot, hitting her in the head with the pistol in the process. Inside the car W. was forced to lay on the front seat on her stomach. The back of the seat was folded down and she saw a green box behind the driver's seat. The assailant taped W.'s hands behind her back and stretched the seat belt across her, holding the loose end of the belt down with his hand to restrict her movements.

The man drove for between ten and thirty minutes. He stopped the car and ordered W. to get out. He cut the tape that bound her and led her across a field for about 400 feet. He forced W. to undress and told her that if she cooperated she would get out of the situation alive. He forced her to commit fellatio upon him, and he raped her vaginally and anally. He blindfolded her with her blouse and urinated on her. He told her that he had her wallet so he knew where she lived and that if she reported the assault he would harm her. After the assailant left, W. found her clothes and walked until she was able to flag down a passerby who drove until they found a policeman. The passerby's automobile was a hatchback.

W. was taken to a hospital and questioned by the police. She described her attacker as a short, white, obese male, 35 to 45 years old, wearing a hooded sweatshirt. She described her assailant's car as a white, foreign, compact hatchback. She told the police that her assailant carried a small revolver. In fact, Escalante is a Mexican-American male, who at the time was 25 years old, and who is 5'10"' tall and weighs 240 pounds. The gun that was eventually seized from him is quite large, and his automobile is not a hatchback. When she was questioned at the hospital W. was not particularly cooperative with the police because she was not sure that she wanted to pursue a prosecution. She testified at trial that while at the hospital she simply answered "yeah" to specific questions the police put to her.

Two days after she was assaulted, W. saw a man who she believed looked very much like her attacker while she was attending class. The police investigation of this lead was dropped when this suspect's car was found not to match the description of the assailant's automobile.

On May 7, 1984, some six weeks after the incident, W. was shown a photographic lineup consisting of six pictures. She chose the photo of the defendant as the one most closely resembling her attacker. She could not, however, make a positive identification. While we need not go so far as to say that the photo spread was unduly suggestive, it certainly could have been better. Both victims described the rapist as obese, and the appellant is the heaviest subject depicted in the lineup. Some of the men depicted in the lineup are not overweight at all. When she was shown a photograph of the defendant's Toyota, which generally fit the description of the assailant's car, W. could not be sure that it was the car in which she had been abducted. She continued to maintain that her assailant's car was a hatchback.

W. had also been interviewed by the appellant's attorney. To him, she described her attacker as between 5'10"' and 6' tall, fat and flabby, with a dark complexion and a thin mustache. She said that he wore wire-framed glasses and that the bottoms of the frames might have been of flat plastic. She never saw the rapist's hair. The defendant's mustache was, in fact, not thin but very full.

At trial, W. was not able to identify the defendant positively. At one point she said that her attacker was black, and she conceded that she had tried to avoid looking at him. Although she had previously described her assailant's revolver as small, and the one seized from the appellant was quite large, she said that the appellant's pistol was similar to the one used by her attacker. She also said that the green box she had observed in her attacker's car was similar in size and color to the one seized from the defendant. The appellant's green box had two black speakers on top that were fairly obvious and which W. had not mentioned. She testified that she might not have "picked up on" the speakers. She also described a hooded sweatshirt seized from the defendant as being similar to one worn by her attacker.

THE SECOND INCIDENT

The incident involving the second victim occurred on March 31, 1984. The victim, S., had gone to a bar in Tempe at about 8:00 or 8:30 in the evening with her sister and her sister's husband. After the bar closed she stayed with some band members for about one-half hour until 1:30 a.m. She had drunk five or six tequilla sunrises over the course of the evening.

S. began to walk home from the bar when a man driving a Chevrolet Blazer pulled up beside her. He had a gun with a long barrel, and he told her to get in the truck. He drove her to a parking lot where he stopped, taped her hands, and placed her in the back of the Blazer. Telling her to "shut up or I'll kill you," he started up and drove for another five minutes. He took her out of the Blazer and walked her twenty to thirty feet away. He took her clothes off and untaped her hands. He forced her to commit fellatio upon him and then raped her vaginally. He told her that he was going to have anal intercourse with her, but at this point he simply left without doing anything more.

S. put her clothes on and was ultimately taken to a hospital where she was interviewed by the police. She was initially so hysterical that she was incoherent, but she eventually described her attacker as an obese white male, 30 to 35 years old, 5'9"' to 6' tall with a medium mustache and wearing ear-length hair. She described her attacker's vehicle as a yellow and brown or beige Chevrolet Blazer. She told the officer that she had managed to escape from her attacker by hitting him with a stick, a story which she later said was completely untrue. S. was not able to give any further description of the weapon or of the clothes worn by her attacker.

The day after she was assaulted, S. saw a vehicle she believed was her attacker's driving by her house. Although at trial she testified that she did not see the driver, she reported to the police that the man driving was her assailant. A police investigation exonerated this man. Within the weeks that followed, S. saw two more individuals who she thought were her attacker. She attempted to follow one of them but could not follow the other because his car was headed in the opposite direction as hers. About three weeks after the attack, S. saw Edward Escalante when he drove through the line at the drive-in restaurant where she worked. She believed that he was the rapist, and she notified the police. They found the appellant by tracing his license plate.

On May 8, 1984, S. was shown a photo spread which included the appellant's picture, and she identified Escalante as her attacker. She was quite certain about her choice but said that the appellant's glasses seemed to be different. She ultimately identified photos of the appellant's Blazer as resembling the vehicle driven by her attacker although some minor details about the attacker's vehicle as she described it were inconsistent with the appellant's vehicle. Escalante testified at trial and denied that he had attacked the two women. He was not able to account for his whereabouts on the occasion of the two assaults.

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