State v. Kelly

• Decision Date: 23 September 1974
• Docket Number: No. 2889,2889
• Citation: 111 Ariz. 181,526 P.2d 720
• Parties: The STATE of Arizona, Appellee, v. Mark Daniel KELLY, Appellant.
• Court: Arizona Supreme Court

Page 720

526 P.2d 720

111 Ariz. 181

The STATE of Arizona, Appellee, v. Mark Daniel KELLY, Appellant.

No. 2889.

Supreme Court of Arizona, In Banc.

Sept. 23, 1974.

Rehearing Denied Nov. 13, 1974.

Gary K. Nelson, Former Atty. Gen., N. Warner Lee, Atty. Gen. by Stanley L. Patchell, Asst. Atty. Gen., Phoenix, for appellee.

Louis L. Deckter, Tuscon, for appellant.

CAMERON, Vice Chief Justice.

Defendant, Mark Daniel Kelly, was tried and convicted of rape while armed with a deadly weapon, § 13--611 and § 13--614(C) A.R.S., and burglary while armed with a deadly weapon, § 13--302 A.R.S. He was sentenced to a term of from ten to fifteen years imprisonment on each count, to run concurrently. From his conviction and sentence he appeals.

We are asked to answer the following questions:

1. Are Arizona rape statutes unconstitutional as a denial of equal protection?

2. Did the trial court err in denying defendant's motion in limine to preclude the prosecution from offering any evidence of subsequent acts committed by defendant?

3. Did the trial court err in refusing to suppress evidence found as the result of the issuance and execution of a search warrant?

4. Did the trial court err in refusing to admit certain F.B.I. reports?

5. Did the trial court err in admitting opinion evidence regarding the identification of footprints?

6. Did the trial court err in permitting an enlargement of a 'mug shot' photograph to be introduced into evidence?

7. (a) Is the alibi rule, Rule 192(B), Rules of Criminal Procedure, unconstitutional?

(b) Was the rule properly applied prohibiting the testimony of a witness as an alibi witness?

8. Did the trial court err in refusing to give defendant's requested instruction that in a rape case the jury is required to examine the testimony of the alleged victim with great caution?

The facts necessary for a determination of this matter are as follows. On the evening of 9 July 1972, the victim was home alone. She answered the door and a man asked her whether a certain person lived at that address. The porch of the house was well lighted and the victim talked to the man for about two minutes. The victim closed the door and returned to her bedroom. About two minutes later, the man who had been on the porch appeared at her bedroom door. He had a steak knife with a serrated edge and a wooden handle in his hand. He threatened the victim with the knife and raped her. After the man left, the victim waited a few minutes until she was sure he was gone and then went to a neighbor where she telephoned the Tucson Police and notified them of the incident. The victim described the rapist to the police according to what he was wearing and what he looked like. She also stated that he had told her his name was 'Mark.' A composite drawing was made by the police based on the victim's description. Footprints were found at the rear and side of the victim's home and were photographed by the police.

One week after the rape, a police officer observed the defendant near the outside window of a motel. He cupped his hands around his eyes, peered into the window, and then walked away. When defendant was confronted by the officer he had no identification. However, he had a brown knife with a serrated edge and a wooden handle in his pocket. He was arrested and charged with trespassing and carrying a concealed weapon. The following day he was interrogated about the alleged rape and voluntarily agreed to appear in a lineup. At the lineup, at which the defendant appeared without an attorney, the victim identified Kelly as the one who raped her. Defendant was then arrested on the charge for which he was tried and convicted by a jury.

1. IS THE RAPE STATUTE UNCONSTITUTIONAL?

Defendant's first contention is that Arizona's rape statutes, §§ 13--611 through 13--614 A.R.S., violate the due process and equal protection clauses of the United States Constitution and are therefore unconstitutional. Defendant argues that the statutes make it is crime for a man to commit a sexual act upon a woman without her consent while a woman, however, who commits the same sexual act upon a man without his consent, cannot be charged with the crime of rape. A fair reading of our statutes, §§ 13--611 through 13--614 A.R.S., indicates as defendant contends--that other than as an aide and abettor, State v. Carter, 66 Ariz. 12, 182 P.2d 90 (1947)--a female can only be the victim of a rape not the perpetrator.

In determining whether a law violates the equal protection clause, three things are considered: the character of the classification in question; the individual interests affected by the classification; and the government interest asserted in support of the classification. Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972).

The Fourteenth Amendment does not deny a state the power to treat different classes of persons in different ways as long as the classification is reasonable. Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); In re Maricopa County Juvenile Action, No. J--72804, 18 Ariz.App. 560, 504 P.2d 501 (1973). And the Fourteenth Amendment does not deny a state the power to classify in the adoption of police law, Uhlmann v. Wren, 97 Ariz. 366, 401 P.2d 113 (1965); State v. Sanchez,110 Ariz. 214, 516 P.2d 1226 (1973); State v. Cassius, 110 Ariz. 485, 520 P.2d 1109 (1974), and a legislative classification will not normally be set aside if any set of facts rationally justifying it is demonstrated to or perceived by the courts. United States v. Maryland Savings Share Ins. Corp.,400 U.S. 4, 91 S.Ct. 16, 27 L.Ed.2d 4 (1970).

In the instant case, we believe that the need for treating males and females differently in enacting the rape statute is clearly reasonable. The statute satisfies the real, if not compelling, need to protect potential female victims from rape by males.

However, for obvious physiological as well as sociological reasons we perceive no need by males for protection against females from rape which would be sufficient to demand legislative attention. The fact that the law does not provide the same protection to males as it does to females does not deny the male perpetrator the equal protection of the law. The classification is logical and rational. The individual's as well as the government's interests are apparent. We do not find the statutes constitutionally infirm.

2. DID THE TRIAL COURT ERR IN FAILING TO GRANT DEFENDANT'S MOTION TO PRECLUDE EVIDENCE OF THE ALLEGED TRESPASS AND CARRYING A CONCEALED WEAPON?

Defendant filed a motion in limine to preclude the State from offering any evidence of the alleged charges of trespass and carrying a concealed weapon. The court denied the motion.

Defendant contends that the evidence of these acts was inadmissible because there was no felony conviction and also because the evidence could only be described as 'peeping-Tom' acts and as such are inadmissible in a rape prosecution. State v. Gibson, 103 Ariz. 428, 443 P.2d 424 (1968). At the trial the defendant was willing to concede that the knife was his.

In State v. Gibson, supra, we held that the testimony of the officer that the defendant had admitted that he was a 'peeping-Tom' was reversible error. In Gibson, supra, we stated:

'Gibson complains of Officer Field's testimony that Gibson admitted to being a 'peeping Tom'. * * *

'Such evidence of misconduct by the defendant plainly constitutes prejudicial and reversible error. We held in State v. Johnson, 94 Ariz. 303, 383 P.2d 862, 863, that specific acts of misconduct not sustained by a conviction of a felony may not be shown and cited the prior Arizona cases. * * *

'* * * In the instant case, there is obviously no relevant connection between an act of a 'peeping Tom' and an act of violent rape. * * *' 103 Ariz. at 430, 443 P.2d at 426. See also State v. Washington, 103 Ariz. 605, 447 P.2d 863 (1968).

There are, however, exceptions to this rule. For example, when the evidence tends to establish intent, absence of mistake, or accident, identity, and common scheme or plan, it may be admissible even if the evidence also shows evidence of misconduct or prior bad acts. State ex rel. Moise Berger v. Maricopa County, 108 Ariz. 396, 499 P.2d 152 (1972); State v. Fierro, 107 Ariz. 479, 489 P.2d 713 (1971); State v. Jacobs, 18 Ariz.App. 471, 503 P.2d 826 (1973).

In the instant case, we have evidence which shows, we believe, common scheme, plan or design. State v. Phillips, 102 Ariz. 377, 430 P.2d 139 (1967). The peering into the motel window and the possession of the steak knife were facts which were relevantly connected with the acts for which the defendant was being tried. The footprints outside the window could indicate that the defendant was peering in the victim's house prior to the rape and the steak knife in defendant's possession was similar to the one the victim testified the defendant used at the time of the rape.

Also, we have stated:

'When one further considers the wide discretion left to the trial court in admission of separate criminal acts, State v. Finley, 85 Ariz. 327, 338 P.2d 790 (1959), there can be no doubt that the trial court must be upheld on admitting evidence of the student's rape.' State v. Fierro, supra, 107 Ariz. at 483, 489 P.2d at 717.

We hold that the trial court did not err in denying defendant's motion in limine.

3. SUPPRESSION OF EVIDENCE

A search warrant was issued on the affidavit of a detective of the Tucson Police Department. This was done after the victim had identified the defendant in the police lineup. In the affidavit the detective stated that in the course of his investigation involving the rape, the victim 'described the shirt worn by her assailant and the knife he was carrying to threaten her with, and had identified this assailant as Mark Daniel Kelly. It is believed that the shirt and knife are located in the above-described residence, this being the residence of Mark Daniel Kelly.' The affidavit...