State v. Gilfillan

• Decision Date: 02 March 2000
• Docket Number: No. 1 CA-CR 99-0069.,1 CA-CR 99-0069.
• Parties: STATE of Arizona, Appellee, v. John Richard GILFILLAN, Appellant.
• Court: Arizona Court of Appeals

998 P.2d 1069

196 Ariz. 396

STATE of Arizona, Appellee, v. John Richard GILFILLAN, Appellant.

No. -0069.

Court of Appeals of Arizona, Division 1, Department C.

March 2, 2000.

Janet A. Napolitano, The Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, Consuelo M. Ohanesian, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Dean W. Trebesch, Maricopa County Public Defender by Edward F. McGee, Deputy Public Defender, Phoenix, Attorneys for Appellant.

OPINION

EHRLICH, Judge.

¶ 1 John Richard Gilfillan ("defendant") appeals from his six felony convictions and the sentences imposed. For the reasons given below, we uphold the constitutionality of the Arizona Rape Shield Law, Arizona Revised Statutes ("A.R.S.") section 13-1421, and otherwise affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 In June 1996, C.,¹ then 11 years old, lived with her grandmother in a trailer park in Phoenix. Because summer vacation had begun, C. was left alone in the trailer while her grandmother worked. On the morning of June 10, 1996, the defendant, who lived nearby, knocked on C.'s door. C. had known the defendant for two or three months, and, although he was 27 years old, C. thought that he was age 15 or 16. The defendant told C. that he had a lizard at his house that he wanted to show her, so C. let the defendant in the trailer while she went to get dressed.

¶ 3 In C.'s bedroom, the defendant approached C. from behind, placed a knife to her throat and pushed her down onto her bed. He bound C.'s wrists and ankles with cords from a video game, then gagged her with a brown sock to stop her from crying. The defendant touched C.'s vagina, performed oral sex on her, digitally penetrated her and attempted penile intercourse. When C. managed to remove the sock from her mouth, the defendant forced C. to perform oral sex on him. After he ejaculated, he wiped himself on the sock and threw it on the floor.

¶ 4 As C. struggled to get the cords off her wrists and ankles, the defendant retied the cords. Then, when C. began to cry, the defendant repeatedly punched her in the face and attempted to strangle her by wrapping another cord around her neck. As C. pleaded for her life, the defendant said that he would have to kill her and himself. Finally, though, the defendant stopped choking C., and he started to cry. He apologized, claiming that he had been taking medication. Before leaving, he told C. to lie about what had happened and tell her grandmother that she had been beaten by another girl.

¶ 5 After the defendant left, C. untied her hands and feet, and telephoned her grandmother, crying and saying that someone had beaten her. C.'s grandmother in turn immediately called the police and returned home.

¶ 6 A Phoenix police officer arrived within minutes and found C. crying and hysterical. After she told him what had happened, the officer conducted an initial examination of the scene, and found a knife on the bed and underwear on the floor. Paramedics and more officers arrived. As C. lay in an ambulance awaiting transport to a hospital, she saw the defendant standing nearby, and she identified him to the police as the one who had assaulted her. At the same time, the defendant approached an officer and said that he had some information about the incident. He told the officer that C. had come at him with a knife and that he had defended himself by hitting her in the face. He made no comment about having any sexual contact with C.

¶ 7 A detective went to the hospital and observed that C. had bruises and swelling on her face and ligature marks on her wrists, ankles and neck. The physician examining C. concluded that her physical condition was consistent with the history she had provided to him about the incident. Specimen and blood samples were taken from C.

¶ 8 A second detective processed the crime scene. She seized the brown sock, which was wet, the knife on C.'s bed, the cords next to the bed, some carpet samples with fresh blood on them, the blanket on C.'s bed, and C.'s underwear and shorts.

¶ 9 Meanwhile, the defendant was arrested and taken to a police station. He claimed that C. had invited him to see some drawings and lizard eggs. According to the defendant, once he was inside, C. told him that she was angry with him because he had alienated some of her friends from her, and she came at him with a butcher knife. The defendant said that he had grabbed the knife, struck C. in the face to protect himself, thrown the knife on the bed and left. Denying any sexual activity with C., the defendant consented to have blood and saliva samples taken.

¶ 10 DNA testing was performed on the blood samples given by the defendant and C., and on extracted semen and epithelial cells found on the brown sock. The epithelial fraction was consistent with cells from C.'s mouth, and the sperm fraction was consistent with cells from the defendant.

¶ 11 The defendant was indicted for kidnaping, aggravated assault, sexual conduct with a minor and attempted sexual conduct with a minor. The state moved to preclude evidence the defendant sought to introduce that C. allegedly had falsely accused a 13-year-old boy who lived in the trailer park of attempted rape. After conducting a hearing, the trial court granted the state's motion, finding that "the Defendant has not convinced the Court by clear and convincing evidence that [C.] made false accusations of sexual misconduct as to [K]."

¶ 12 At trial, the defendant testified and reiterated what he had told the police officers during his interview. He claimed that C. had assaulted him with a knife and that she had been injured in his attempt to protect himself. He denied that he had attacked C. with a knife or that he had bound and gagged her.

¶ 13 Two witnesses testified that C. had a reputation for lying and for violence. They said that C. had told others that she would "get even" with the defendant for taking her friends. C.'s grandmother also admitted that C. had a problem with lying and a reputation for violence.

¶ 14 The defendant was convicted as charged and sentenced to consecutive presumptive terms of imprisonment. He appealed, raising these issues:

A. Whether A.R.S. section 13-1421 is unconstitutional on its face and as applied to the defendant;

B. Whether the trial court abused its discretion when it excluded evidence that C. allegedly had falsely accused a boy of attempting to sexually assault her on a prior occasion;

C. Whether the trial court abused its discretion when it denied a motion for mistrial after a police officer testified that he had terminated his interview with the defendant after the defendant requested a lawyer;

D. Whether the trial court committed reversible error by denying the defendant's requested instruction on self-defense on the count of aggravated assault.

DISCUSSION

¶ 15 Like the majority of states, Arizona has enacted a statute intended to protect victims of rape from being exposed at trial to harassing or irrelevant questions concerning any past sexual behavior.² The Arizona Rape Shield Law states as follows:

A. Evidence relating to a victim's reputation for chastity and opinion evidence relating to a victim's chastity are not admissible in any prosecution for any offense in this chapter. Evidence of specific instances of the victim's prior sexual conduct may be admitted only if a judge finds the evidence is relevant and is material to a fact in issue in the case and that the inflammatory or prejudicial nature of the evidence does not outweigh the probative value of the evidence, and if the evidence is one of the following:

1. Evidence of the victim's past sexual conduct with the defendant.

2. Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease or trauma.

3. Evidence that supports a claim that the victim has a motive in accusing the defendant of the crime.

4. Evidence offered for the purpose of impeachment when the prosecutor puts the victim's prior sexual conduct in issue.

5. Evidence of false allegations of sexual misconduct made by the victim against others.

B. Evidence described in subsection A shall not be referred to in any statements to a jury or introduced at trial without a court order after a hearing on written motions is held to determine the admissibility of the evidence. If new information is discovered during the course of the trial that may make the evidence described in subsection a[sic] admissible, the court may hold a hearing to determine the admissibility of the evidence under subsection A. The standard for admissibility of evidence under subsection A is by clear and convincing evidence.

¶ 16 These provisions generally prohibit a criminal defendant from introducing at trial evidence relating to a victim's reputation for chastity and opinion evidence relating to a victim's chastity. A.R.S. § 13-1421(A). However, the statute incorporates five exceptions to this broad ban, including evidence of an alleged rape victim's false accusations of sexual misconduct against others. A.R.S. § 13-1421(A)(5). This exception allows a defendant to introduce evidence of a victim's previous false accusations against others, but only if the trial court determines that the relevance and probative value of the information outweigh its prejudicial effect and if the defendant is able to prove the existence of the accusations by clear and convincing proof. A.R.S. § 13-1421(A), (B). Thus, the Arizona Rape Shield Law does not abrogate the admissibility of all evidence impugning a victim's chastity.³

A. Constitutionality of A.R.S. Section 13-1421⁴

¶ 17 A law is presumed to be constitutional unless the complaining party demonstrates that the enactment violates the federal or state constitution. See Chevron Chemical Company v. Superior Court, 131 Ariz. 431, 438, 641 P.2d 1275, 1282 (1982)

; State v. Takacs, 169 Ariz. 392, 395, 819 P.2d 978, 981 (App.1991). Accordingly, the constitutionality...