State v. King
| Decision Date | 09 October 1973 |
| Docket Number | No. 2448,2448 |
| Citation | 514 P.2d 1032,110 Ariz. 36 |
| Parties | The STATE of Arizona, Appellee, v. Abraham Lincoln KING, Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen. by William P. Dixon, Asst. Atty. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender by Anne Kappes, Deputy Public Defender, Phoenix, for appellant.
This is an appeal by the defendant, Abraham Lincoln King, from jury verdicts and judgments of guilt to the crimes of second degree rape, § 13--611, subsec. B A.R.S., and lewd and lascivious acts, § 13--652 A.R.S. Imposition of sentence was suspended for a period of five years.
We are asked to consider the following questions on appeal:
1. Did the court err in allowing impeachment of the defendant by an 11 year old prior conviction for burglary?
2. Does the rule which allows impeachment of a defendant by prior felony convictions deny due process by placing an unreasonable burden on a defendant's right to testify?
3. Did the failure of the trial court to instruct the jury that penetration is an essential element of the crime of rape constitute reversible error?
4. Were certain comments made by the county attorney during closing argument so prejudicial as to have denied the defendant a fair trial?
The facts necessary for a determination of the issues raised on this appeal are as follows. On 18 May 1971, Wanda and Mary, aged 16 and 15 respectively, complained to the police that their stepfather, Abraham Lincoln King, and forcibly raped both of them and that he was also guilty of lewd and lascivious acts. Those original charges were eventually dismissed, and King was finally charged with two counts of second degree rape as to Wanda and Mary and one count of lewd and lascivious acts with the prosecutrix Wanda.
It is unnecessary to set forth in detail the testimony of Wanda and Mary concerning the nature of the acts to which they were subjected. It is sufficient to state that both girls described specific occasions on which they had submitted to sexual intercourse with their stepfather, and both testified that they had regularly had intercourse with the defendant over a period of about two years. In addition, Wanda testified that King had performed cunnilingus with her and that she had been forced to perform acts of fellatio with him. The testimony of both girls with respect to acts of intercourse was corroborated by the girls' mother and their brother.
Defendant, who testified on his own behalf, denied the accusations of his stepdaughters and sought to establish motives for their alleged perjury. On cross-examination, the defendant admitted a prior 11 year old conviction for burglary.
Defendant argues that an eleven year old conviction for burglary is too remote to have any probative value for impeachment purposes, and that it was error for the court to have allowed the county attorney to cross-examine him as to this prior conviction.
A witness's credibility may be impeached by a prior felony conviction. State v. Owen, 101 Ariz. 156, 416 P.2d 589 (1966); State v. Harris, 73 Ariz. 138, 238 P.2d 957 (1951). The prior conviction cannot, however, be so remote as to have reasonably lost all relevancy with respect to the purpose for which it is introduced. State v. Harvill, 89 Ariz. 340, 362 P.2d 633 (1961). Thus, for example, this court has held that a thirty year old conviction is not a valid impeachment device, Sibley v. Jeffreys, 76 Ariz. 340, 264 P.2d 831 (1953), and that, likewise, a nineteen year old conviction for manslaughter does not reasonably reflect upon one's credibility. State v. Ross, 107 Ariz. 240, 485 P.2d 810 (1971). There is, however, no mechanical formula for determining remoteness. Admissibility of a prior conviction for impeachment purposes is generally left to the sound discretion of the trial court. State v. Phillips, 102 Ariz. 377, 430 P.2d 139 (1967). In determining whether a prior conviction is too remote to be probative of a witness's veracity the court should take into account such factors as the length of time which has elapsed, the length of the former imprisonment, subsequent conduct and present age of the witness, intervening circumstances and the nature of the prior offense. State v. Ross, supra; Sibley v. Jeffreys, supra.
In the case before us eleven years had elapsed since the defendant's burglary conviction. The record does not reveal the length of imprisonment served for that particular offense, but it does appear that the burglary conviction was not defendant's only prior felony, and that he had, in fact, spent at least 15 of his 44 years in jail. On the other hand, at the time these most recent charges were brought against him, defendant and maintained a steady job and had stayed out of trouble for a period of seven years. If subsequent good conduct were the only factor to be considered in determining the value of a prior conviction as an impeachment device, we would agree with the defendant. In light of all the other factors, however, we are not prepared to say that the trial court abused its discretion in allowing the impeachment.
Although he was not himself dissuaded from testifying on his own behalf, defendant nevertheless urges that the rule which allows impeachment by prior convictions denies due process in that it places an undue burden on a defendant's right to testify.
A defendant in a criminal case has the right to testify on his own behalf, or not, whichever strategy he considers would be most beneficial to his case. However, the right of a criminal defendant to take the stand and speak on his own behalf does not include the unqualified right to have brought out on cross-examination only those facts which are favorable to his case. We reaffirm our previous position that the rule which allows impeachment by prior felony convictions is not constitutionally defective. State v. Reeden, 106 Ariz. 409, 477 P.2d 240 (1970); State v. Fields, 104 Ariz. 486, 455 P.2d 964 (1969).
This court has many times held that it is reversible error for the trial court to fail to instruct the jury as to an essential element of the crime with which the defendant is charged unless that element is covered completely by other instructions. State v. Brock, 101 Ariz. 168, 416 P.2d 601 (1966); State v. Elias, 74 Ariz. 374, 249 P.2d 941 (1952); State v. Singleton, 66 Ariz. 49, 182 P.2d 920 (1947). Although the essence of the crime of rape is the outrage to the person and feelings of the victim, § 13--612 A.R.S., there can nevertheless be no rape without some penetration, however slight. State v. Torres, 105 Ariz. 361, 464 P.2d 953 (1970).
The court properly instructed the jury as to the statutory definition of the crime of second degree rape but was not requested and did not give an instruction on penetration. We note at the outset that the record amply supports the fact of penetration. The victim Wanda testified as follows:
'Q What is the first thing you remember happening that night?
'A Well, he was just playing with my breasts.
* * *
* * *
'Q What did he do after that?
'A Then he started kissing down there.
'Q Down between your legs?
'A Yes.
'Q Do you know what a vagina is?
'A Yes.
'Q Is that where he kissed you?
* * *
* * *
'A Yes.
* * *
* * *
'Q What did he do next?
'A And then he put in his penis.
'Q And he put that into your vagina?
'A Yes.'
The victim Mary testified similarly:
'A Started kissing me.
'Q Where did he kiss you?
'A On the mouth.
'Q What else did he do?
'A And he played with--he sucked my breasts and played with my privates.
'Q Between your legs?
'A Right.
'Q What did you do next?
'Q Do you know what a vagina is?
'A Yes.
'Q And you know what a penis is?
'A Yes.
'Q Did he stick his penis in your vagina?
'A Yes.'
No request for an instruction having been made by the defendant, we will not reverse unless the failure to give the instruction was, under the facts in the instant case, fundamental error. Where the fact of penetration is in doubt, it may be reversible error for the court to omit instructions as to the necessity of penetration. But where, as here, the testimony of the victims establishes penetration beyond a reasonable doubt, we will not consider the failure to give an instruction on penetration fundamental error. We have stated:
'* * * Errors or omissions in the giving of instructions which were not raised at trial will not be considered unless the error is so fundamental that it is manifest the defendant did not receive a fair trial. * * *' State v. Coward, 108 Ariz. 270, 271, 496 P.2d 131, 132 (1972).
Defendant's last claim is that comments made by the county attorney during closing argument went beyond the realm of permissible argument and that their cumulative effect was to tilt the scale in a closely balanced case in favor of the prosecution. The following are excerpts which defendant cites as examples of improper expressions of the county attorney's personal belief in the defendant's guilt, affirmations of the veracity of the State's witnesses, misstatements of fact, or insults to opposing counsel:
* * *
* * *
And I don't think Mary _ _ was up there lying to you. I don't think she ever lied to you.
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