State v. Flynn, 2476
| Decision Date | 20 September 1973 |
| Docket Number | No. 2476,2476 |
| Parties | STATE of Arizona, Appellee, v. Edmund Patrick FLYNN, Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen., Peter Van Orman, Asst. Atty. Gen., Phoenix, for appellee.
Mickey L. Clifton, Phoenix, for appellant.
The defendant was convicted on one count of forcible rape and on one count of statutory rape. He was sentenced on each count to not less than five nor more than ten years, to run concurrently. From his conviction and sentencing he appeals.
He was initially tried in August 1971 but because the jury could not reach a verdict, the proceedings ended in a mistrial.
At the second trial, the defendant was tried on two counts of forcible rape.
The state's evidence at both trials was that on March 13, 1971, as the victim was walking home from a girlfriend's house, the defendant grabbed her, pulled her into a yard and raped her. The fifteen year old victim testified that the defendant choked her and repeatedly threatened to kill her. It was either during or directly after the rape that her assailant threatened her with a large brick when she refused to give her correct name and address to him. The defendant then took her clothing and left to get his truck. Approximately ten minutes later, he returned, gave her some of her clothes, forced her into his truck and drove her to the site of the second rape. She then undressed and intercourse occurred once again. Upon completion he drove her home. At no time did the victim try to escape from her assailant.
The victim further testified that several days after the rape, she received a phone call from her assailant telling her to wait at the corner of 12th Street and Thomas. She informed the police who picked up the defendant as he drove near the area.
A line-up and voice identification were conducted. The victim indicated that the defendant was her assailant and charges were then filed.
On appeal the defendant makes several assignments of error: (1) The trial judge erred when he refused to suppress the in-court identification of the defendant by the victim; (2) the court admitted evidence that was immaterial to the charges and therefore prejudicial; (3) the trial judge erred by misstating an instruction to the jury, although it was subsequently corrected; (4) the trial court erred by allowing the prosecutor to comment on the lack of defense evidence rebutting the prosecution's case; and (5) a new trial should have been granted because the jury verdicts were inconsistent.
The defendant claims that the trial court erred when it refused to suppress the in-court identification of the defendant where the accused had not been represented by counsel at the line-up. It should be noted that this line-up occurred before an information was filed against the defendant. Nevertheless, the defendant urges us to extend the doctrine of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).
We have repeatedly held that pre-information or pre-indictment line-ups are not a critical stage of the proceedings requiring that the accused be represented by counsel. State v. Nunez, 108 Ariz. 71, 492 P.2d 1178 (1972); State v. Branch, 108 Ariz. 351, 498 P.2d 218 (1972); State v. Fields, 104 Ariz. 486, 455 P.2d 964 (1969). See also State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969) cert. denied, 397 U.S. 965, 90 S.Ct. 1000, 25 L.Ed.2d 257 (1970). We are not prepared to extend Wade and Gilbert to pre-indictment or pre-information situations.
It is also argued by the defendant that the line-up itself was unduly suggestive and that the trial court erred in its ruling.
Generally, the trial court's determination will not be disturbed on appeal unless there is clear and manifest error. State v. Downing, Ariz., 511 P.2d 638 (1973); State v. Murray, 106 Ariz. 150, 154, 472 P.2d 19, 23 (1970); State v. Darby, 105 Ariz. 115, 460 P.2d 9 (1969).
A review of the record shows that there was no clear and manifest error. On the night of the rape, the victim had an opportunity to view her attacker for about one and one-half hours. The line-up displayed five male caucasians of similar height and weight. All of the participants had brown hair and sideburns were colored longer on several men so that they more closely resembled the suspect. The victim looked at all of the five in a line and also one by one. After asking to view two individuals again (one of which was No. 4, the defendant) she positively identified No. 4. After the visual identification was made, there was an audio identification. Although the individuals did not change positions the police officer informed the victim that the order would be different. The testimony at the Dessureault hearing disclosed that the voice identification was not as positive as the visual recognition but again the victim selected No. 4, the defendant.
After having these facts before the trial court at the Dessureault hearing, we believe that the prosecution did prove by clear and convincing evidence that the line-up was not impermissibly suggestive or tainted the in-court identification. Therefore, the in-court identification was properly admitted. See State v. Murray, Supra; State v. Dessureault, Supra.
Another assignment of error is the trial court's allowing in evidence a brick which was allegedly used to threatened the rape victim.
During the rape, the defendant tried to learn the victim's address. When he realized that she had given him a false address '* * * he picked up a brick that was laying there and he said 'if you lie to me one more time I'm going to smash your head in. " Defense counsel later objected to receiving the evidence on the basis of materiality.
In a criminal prosecution, the trial court should be allowed reasonable discretion in determining relevancy and admissibility of evidence. State v. Turner, 92 Ariz. 214, 375 P.2d 567 (1962).
In the instant case, an element of the crime of forcible rape is 'resistence * * * overcome by force or violence', A.R.S. § 13--611, subsec. A, par. 2; or '* * * threats of immediate and great bodily harm, accompanied by apparent power of execution, * * *.' A.R.S. § 13--611, subsec. A, par. 3.
A factual question necessary to this case was whether or not there were threats or force. It is evident that the brick has a bearing on this factual issue and is therefore material. See State v. Evans, 88 Ariz. 364, 356 P.2d 1106 (1960). As a result we cannot find any abuse of the trial court's discretion in admitting the brick.
The defendant also argues that reversible error was committed when the trial judge inadvertently said 'guilty' rather than 'not guilty' while instructing the jury not to draw any inference of guilt from the information.
When this mistake was pointed out to the judge he cautioned the jury:
'TH...
To continue reading
Request your trial
-
State v. Rodriquez
...him on any of the charges. We think the state's reliance on State v. Perry, 116 Ariz. 40, 567 P.2d 786 (App.1977) and State v. Flynn, 109 Ariz. 545, 514 P.2d 466 (1973) is justified under the facts of this Defendant was placed in a lineup to be viewed by victims who had been assaulted in a ......
-
State v. Mincey
...prejudice. Although it is true that the trial court has a certain amount of discretion in determining admissibility, State v. Flynn, 109 Ariz. 545, 514 P.2d 466 (1973), and that the trial judge's discretion in admitting evidence will not be disturbed on appeal absent clear abuse, State v. S......
-
State v. Figueroa
...[does not] appear[] that the defendant is the only one who could explain or contradict the state's evidence."); State v. Flynn, 109 Ariz. 545, 548, 514 P.2d 466, 469 (1973) (prosecutor's statement that defendant did not bring witnesses to rebut state's evidence not improper comment on failu......
-
Lessard v. State
...been invoked by other courts which have dealt with such issues in cases involving charges of multiple sexual assaults. State v. Flynn, 109 Ariz. 545, 514 P.2d 466 (1973); State v. Fairfax, 42 Wash.2d 777, 258 P.2d 1212 The rule represented by State v. Hickenbottom, supra, is valid for yet a......