State v. Gillies

• Citation: 662 P.2d 1007,135 Ariz. 500
• Decision Date: 01 March 1983
• Docket Number: No. 5424,5424
• Parties: STATE of Arizona, Appellee, v. Jess James GILLIES, Appellant.
• Court: Supreme Court of Arizona

Page 1007

662 P.2d 1007

135 Ariz. 500

STATE of Arizona, Appellee, v. Jess James GILLIES, Appellant.

No. 5424.

Supreme Court of Arizona, In Banc.

March 1, 1983.

Rehearing Denied April 19, 1983.

Robert K. Corbin, Atty. Gen. by William J. Schafer III, and David R. Cole, Asst. Attys. Gen., Phoenix, for appellee

Ross P. Lee, Maricopa County Public Defender by H. Allen Gerhardt, Deputy Public Defender, Phoenix, for appellant.

Jess James Gillies in pro per.

HAYS, Justice.

In the early morning of January 29, 1981, Suzanne Rossetti was reported missing by her parents when she failed to pick them up to drive them to the airport. Her body was discovered several days later buried under a pile of rocks on Fish Creek Hill in the Superstition Mountains. The medical examiner determined that the cause of her death was exsanguination, aspiration of blood and extensive head injuries.

Appellant Jess Gillies was arrested on February 3, 1981, tried and convicted by a jury of kidnapping, sexual assault, aggravated robbery, computer fraud in the first degree, and first degree murder. He was sentenced to 21 years each for the kidnapping and sexual assault, to 15 years each for the aggravated robbery and the computer fraud, all sentences to run consecutively, and to death for the first degree murder conviction. We have jurisdiction of the appeal from the convictions and sentences pursuant to A.R.S. § 13-4031, § 13-4035 and Ariz. Const. art. 6 § 5(3).

Confessions by the appellant to various friends led to his arrest and constituted the majority of evidence against him. Gillies lived and worked at Weldon's Riding Stables in Phoenix at the time of the crime. On January 28, 1981, Gillies and Mike Logan ¹ were in the U-Totem at 52nd Street and Van Buren when Suzanne Rossetti drove up to make a purchase. Upon returning to her car, she discovered she had locked herself out and solicited the aid of the two young men. In gratitude for their help in unlocking her car, Rossetti bought the men a six-pack of beer and offered them a ride back to the riding stable. En route, one of the men grabbed Rossetti and, after stopping the car, pulled her to the ground where they both raped her. Gillies and Logan drove their victim to Papago Park and then to her apartment, apparently raping her at both locations. The men rifled her purse and scavenged her apartment for valuables. (When arrested, Gillies was found in possession of several belongings of Rossetti, including her credit cards.) Rossetti was finally transported to the Superstitions where she was pushed from a cliff, tumbling 40 feet down the rocky hillside. Gillies and Logan pursued their victim down the hill and found her still alive. Rossetti begged for mercy, told the men she was going to die anyway and to let her die in peace. According to Gillies, Logan responded: "That's right, bitch, you are." According to Logan, Gillies began calling the victim a whore and a bitch. The victim was then bashed on the head with rocks until she lost consciousness. Gillies and Logan covered her with rocks (a detective testified that two men were needed to remove one of the rocks from her body) and drove back to Phoenix in her car. According to the medical examiner, Suzanne Rossetti died in approximately ten to fifteen minutes, presumably after she was buried.

Hair and blood were found near the victim's grave. Damage caused by small animals had been sustained by the body. The right cheek of the victim had been crushed and the eye was missing from the right socket. The medical examiner described various lacerations, abrasions, avulsions, and fractures to the skull and body of the victim. The victim tested positive for seminal fluid.

Between January 28 and February 3, Gillies and Logan accessed the Valley National Bank 24-hour automated teller twenty-eight times using Rossetti's card. Because only $250 can be withdrawn in a given 24-hour period, 13 of the attempts to obtain cash were unsuccessful.

I. CORPUS DELICTI

At the close of the state's case, the appellant made a motion for directed verdict of acquittal on the ground that the state failed to present sufficient evidence to establish the corpus delicti of sexual assault. Appellant submits that his incriminating statements alone are insufficient to sustain his conviction.

The state responds that appellant has waived this claim because he did not object before the incriminating statements were admitted into evidence. The failure of the defendant to object to the introduction of his statements when they are offered does not waive his right to question their admissibility for the purpose of proving corpus delicti. A defendant might not object at the time the statements are offered An accused may not be convicted on his own uncorroborated confessions. Before such confessions are admissible as evidence of a crime, the state must establish the corpus delicti by proving that a certain result has been produced and that someone is criminally responsible for that result. Only a reasonable inference of the corpus delicti need exist before a confession may be considered. State v. Gerlaugh, 134 Ariz. 164, 654 P.2d 800 (1982). If the state fails to make this showing, the trial court should grant a motion for directed verdict of acquittal. State v. Lloyd, 118 Ariz. 106, 574 P.2d 1325 (App.1978).

on the theory the state will prove corpus delicti before resting its case. State v. Hernandez, 83 Ariz. 279, 283, 320 P.2d 467, 469 (1958). Appellant has sufficiently preserved this issue for appeal.

The victim was found not wearing underpants and a pair of panties was discovered in the parking lot of the Phoenix Zoo where she was allegedly raped. Her girlfriend testified that the victim normally wore underpants. The victim's shoe was pushed inside the leg of her pantyhose in a manner suggestive of violence. The medical examiner discovered seminal fluid in the victim's vagina; foreign pubic hairs were found in her pubic area. We consider this to be sufficient evidence to create a reasonable inference that someone had perpetrated sexual assault upon the victim. The trial court did not err in denying appellant's motion for directed verdict of acquittal.

II. SUFFICIENT EVIDENCE OF COMPUTER FRAUD

Appellant also submits that insufficient evidence was presented to sustain his conviction for computer fraud in the first degree pursuant to A.R.S. § 13-2316(A). ² The court denied appellant's motion for directed verdict of acquittal on this count.

17 A.R.S. Rules of Criminal Procedure, rule 20(a), provides for a judgment of acquittal prior to verdict only when there is "no substantial evidence to warrant a conviction." In reviewing a denial of a defendant's motion for directed verdict, the appellate court must view the facts most strongly in favor of upholding the jury's verdict. State v. Printz, 125 Ariz. 300, 609 P.2d 570 (1980).

The record indicates that substantial evidence was presented to support the conviction of computer fraud in the first degree. Bank records document that the victim's Valley National Bank card was used to access that bank's automated teller machine system twenty-eight times and obtain funds therefrom between January 28 and February 3. Testimony by the department manager of Valley National Bank's automated teller machines clearly classifies those machines as computer systems. Photographs were taken of videotapes produced by the bank's teller system. These photographs, admitted into evidence, reveal Jess Gillies and Mike Logan using the teller. It is also clear from the evidence that the appellant intended and did in fact control money from the victim's account by falsely representing himself as Suzanne Rossetti. The trial court did not err in denying the motion for directed verdict.

III. IMPEACHMENT WITH A PRIOR CONVICTION

Appellant submits that the trial court erred in determining that he could be impeached with his prior felony conviction. The trial court conducted a pretrial hearing and, pursuant to rule 609, 17A A.R.S. Rules of Evidence, held the prior conviction admissible should the appellant testify. This ruling, claims appellant, was improper and denied him the right to testify and due process of law.

Rule 609 admits evidence of a conviction of a felony for the purpose of attacking a witness' credibility if the court determines that the probative value of the evidence outweighs its prejudicial effect. In the absence of an abuse of discretion, we will not overturn a trial judge's decision admitting the prior conviction of a defendant for purposes of impeachment. State v. McElyea, 130 Ariz. 185, 635 P.2d 170 (1981).

Due to the absence of witnesses to the alleged crimes, the credibility of the appellant was of considerable importance. The trial judge found that the severity of the crimes was so great in comparison to the prior conviction of theft that the likelihood the jury would be unduly prejudiced was far outweighed by its probative value on the appellant's credibility. The burden under rule 609 was met; the conviction carried a sentence of imprisonment in excess of one year and (although the test is disjunctive and already satisfied) the prior crime involved appellant's dishonesty. The trial court's ruling was well-reasoned and correct.

IV. RULE 17, ARIZONA RULES OF CRIMINAL PROCEDURE

Immediately preceding the trial, appellant was arraigned on his prior conviction of theft. Based on his admission of the prior, appellant was sentenced to the maximum terms on Counts I, II, III, and V of the indictment.

Rule 17.6, 17 A.R.S. Rules of Criminal Procedure, provides:

"Whenever a prior conviction is charged, an admission thereto by the defendant shall be accepted only under the procedures of this rule, unless admitted by the defendant while testifying on the stand."

The procedures delineated in rule 17 must be followed whenever an admission of a prior conviction is accepted. State v. Canaday, 119 Ariz. 335, 580 P.2d 1189 (1978). Rule 17 re...