State v. Harris
| Decision Date | 04 March 1971 |
| Docket Number | No. 2146,2146 |
| Citation | 107 Ariz. 41,481 P.2d 504 |
| Parties | STATE of Arizona, Appellee, v. Clark Don HARRIS, Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen., Carl Waag, Asst. Atty. Gen., Phoenix, for appellee.
Philip M. Haggerty, Phoenix, for appellant.
Appellant, hereinafter referred to as defendant, was convicted below of one count of child molestation (A.R.S. § 13--653) and sentenced to a term of two to five years in the Arizona State Prison. He appeals claiming he was denied the right to confront the witness against him, that the state failed to prove an essential element of the crime, that the trial court abused its discretion in allowing the complaining witness to testify, and that the trial court erred in refusing to give his requested jury instruction, and in refusing to grant a mistrial.
Taking the facts in the light most favorable to sustaining the verdict, as we must on appeal. State v. Dutton, 106 Ariz. 463, 478 P.2d 87 (1970) they are as follows:
Both the defendant and the complaining witness (hereafter called 'the victim' or 'the boy') were mentally retarded and attended special education classes in their respective schools. The defendant was nineteen years old, and the victim was a boy ten years old.
On October 4, 1969, the defendant and the victim were attending a movie at the Fox Theatre in downtown Phoenix. The two did not arrive together. The defendant arrived at about 3:00 in the afternoon. The victim did not give the time of his arrival.
The victim was sitting in the front row of the movies. The defendant sat down beside him. The two said 'hi' to each other. At about 4:00 p.m. the victim left the seating portion of the theatre to wash his hands. The defendant followed him. By the candy counter the defendant asked him if he wanted some candy, and gave him a package of Tootsie Rolls. The victim thanked the defendant, and then went up the stairway to the mezzanine to the men's restroom. The defendant waited until the boy reached the top of the stairs, then followed him. The boy in the meantime had entered the men's restroom, and washed his hands. He then entered the toilet stall on the end, which had no lock on the door. The victim's testimony was somewhat confusing regarding whether there was anyone else in the restroom at that time. The defendant then followed him into the stall. The victim told the defendant that only one at a time could occupy a stall, and the defendant replied that two could. The defendant then exposed himself and forced the victim's head down to touch the defendant's private parts, and forced the victim to fondle them. The defendant assured the complaining witness that there was nothing to be afraid of. The victim stated that somebody came into the restroom at this point, and the boy ran from the room, and reported the incident to the theatre manager who called the police.
Arturo Velasquez testified at trial that he overheard such an incident take place. At about 4:00 o'clock in the afternoon of October 4, 1969, Velasquez had occasion to be in the men's restroom of the Fox Theatre. Velasquez was a city employee who had been posted at the Fox Theatre because of a suspected 'rumble' in the Phoenix Union High School area. While he was in the restroom he heard what he described as an adult voice and a child's voice coming from the stall on the end. The center stall was also occupied. The trial court did not permit Velasquez to repeat the substance of the conversation, as he could not identify the defendant's voice. Velasquez observed that the child was wearing sneakers, and that the adult was wearing dark, possibly black, dress shoes. He could only observe the feet and legs of the two occupants of the booth.
Velasquez left the restroom to report the incident to an usher. Velasquez had difficulty in attracting an usher's attention. He started to go to the manager's office, when he observed a young boy, whom he identified as the victim, run from the restroom and down the stairs. He later saw this boy in the manager's office and identified his voice as the one he heard coming from the stall. Velasquez testified that the adult voice which he heard was clear and normal in every respect.
Velasquez started to check the men's restroom to see if the adult was still there. As he was going back up the stairs, he caught a glimpse of a Negro male wearing a Phoenix Union letter sweater. He did not see the man's face. He later identified the defendant by his clothing and general build.
The victim testified that the man involved in the incident was a Negro male wearing black pants and a letter sweater. Officer Offutt testified that the defendant when apprehended was wearing black pants and a Phoenix Union letter sweater.
The victim was a difficult witness. His testimony was often confused and contradicted some details of testimony which he gave at the preliminary hearing. However, his testimony as to the facts of the incident, and the identity of defendant was clear and unambiguous.
The defendant took the stand and testified in his own behalf. He denied that he took any part in the incident in question.
The defendant's father, mother and sister all testified as to the defendant's mental retardation and lack of ability to speak clearly, contrary to Velasquez' testimony that the voice of the adult which he heard was a 'normal' voice. However, the jury resolved the facts against the defendant.
The defendant complains that he was denied the right to confront the witness against him when the trial judge questioned the victim in chambers, when neither counsel nor defendant was present. On the morning of the trial, the victim could not be produced. The Deputy County Attorney had interviewed him the day before, and the boy ran away from his foster home that night. The trial court granted the state until 1:30 p.m. to produce the victim. The state did produce him and prior to trial, the trial judge had a conversation with him in chambers at which a court reporter was present and recorded the entire conversation between the judge and the victim. From an examination of the record, it is obvious that the judge was trying to put the boy at ease. At first he did not respond but after some general conversation and questions from the judge, he began to talk more freely.
Defense counsel claims that the trial court suggested to the 'child witness' (victim) outside the presence of the defendant or his counsel that the child witness would be able to recognize or identify The defendant when the witness entered the courtroom where the defendant was present. We find no merit in this. The basis for such proposition is found in the reporter's transcript of the in chambers conversation as follows:
The victim identified the defendant without hesitation in the courtroom, and also defense counsel, whom he had seen previously at 'the other courtroom' (at the preliminary hearing). In view of all the circumstances we can find no prejudicial error in the court's statement in chambes.
It has long been the rule that a defendant has the right to be present at a determination of a witness' competency. 58 Am.Jur. Witnesses § 134 and 23 C.J.S. Crciminal Law § 974. In McGuire v. People, 44 Mich. 286, 6 N.W. 669, the same question was raised when a trial judge in a robbery case held a long conference with a six year old child witness in the judge's 'own room' in addition to an examination in the courtroom. The appeal court in affirming the conviction of the defendant did not find the private conference...
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