State v. Hill
| Decision Date | 13 February 1969 |
| Docket Number | No. 1880,1880 |
| Parties | The STATE of Arizona, Appellee, v. Leevend Thorkes HILL, Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen., Darrell F. Smith, Former Atty. Gen., Carl Waag, Asst. Atty. Gen., Wm. J. Schafer, III, Pima County Atty., Tucson, for appellee.
William Messing, Tucson, for appellant.
Defendant, Leevend Thorkes Hill, was convicted of rape, lewd and lascivious acts, and burglary, and sentenced to serve concurrent sentences in the state prison--maximum 25 years. He appeals from those convictions.
At approximately 3:30 A.M., on the morning of June 29, 1967, the complaining witness was awakened in her home by the defendant, who was straddling her and holding a pair of scissors to her throat. The woman was advised to be quiet or be killed. The defendant then disrobed completely, removed the victim's half slip, and put a pillow over her face. During the next one and a half hours the defendant compelled the victim to engage in acts of cunnilingus, fellatio and four separate acts of sexual intercourse. Upon conclusion of his ravishment defendant fell asleep in his victim's bed. The woman ran to her neighbor's house and called the police. Defendant was subsequently arrested at the victim's home.
Defendant contends that his appointed counsel was so inadequate and so ineffective as to be tantamount to a denial of the right to counsel; that the court erroneously admitted evidence of a prior crime; and that the court erred in allowing five counts--two of rape, two of lewd and lascivious acts, one of burglary--to go to the jury.
Defendant points out several items which he claims are patent errors of defense counsel. For the most part the assertions are general and without supporting authorities or page references to the transcript. However, we have searched the record and conclude that defendant was afforded 'reasonably effective counsel.' See MacKenna v. Ellis, 280 F.2d 592, aff'd, 289 F.2d 928 (5th Cir.), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961). Relief may be justified on the ground of ineffective counsel only where an extreme case is disclosed, and representation by counsel was a farce or a sham. State v. Kruchten, 101 Ariz. 186, 417 P.2d 510 (1966); Maye v. Pescor, 162 F.2d 641, 643 (8th Cir.1947); People v. Ibarra, 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487 (1963); State v. Lopez, 3 Ariz.App. 200, 412 P.2d 882 (1966). We do not have an extreme case here.
Defendant next argues that it was error for the court to admit certain evidence of a prior crime. The facts of the prior crime bear a remarkable similarity to the facts in the instant case. Defendant, in the prior incident, broke into the home of a woman, threatened her life with a sharp object, pulled a blanket over her face and then committed rape and lewd and lascivious acts upon her. When finished defendant fell asleep in his victim's bed. We upheld the admission of similar evidence in the case of State v. Finley, 85 Ariz. 327, 338 P.2d 790 (1959). See also, People v. Whitehorn, 60 Cal.2d 256, 32 Cal.Rptr. 199, 383 P.2d 783 (1963). In Finley we ruled that the evidence of the prior rape was admissible because it showed a common plan or scheme.
Although the admission of the evidence of the prior rape in the present case is justified under the authority of Finley, there remains another important consideration. An essential element in the state's case was a showing of non-consent on the part of the victim. Defendant testified that he was picked up by the victim and invited to have sexual intercourse with her in return for payment of $20.00. He further testified that she claimed she had been raped because he refused to pay for her services. Corroborating his testimony is the fact that rather than taking flight he fell asleep after the completion of the act. The inference to be logically drawn is that defendant was not in fear of being arrested for his actions on that particular occasion because he had done nothing unlawful. Coupled with the sleep...
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...different manner and each was accompanied by the use of force and a lack of consent on the victim's part."); State v. Hill , 104 Ariz. 238, 238, 240, 450 P.2d 696, 696, 698 (1969) (upholding four convictions for several separate sexual acts that occurred over an hour and a half); State v. M......
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