State v. Lucas, 6175

• Decision Date: 08 October 1985
• Docket Number: No. 6175,6175
• Citation: 708 P.2d 81,146 Ariz. 597
• Parties: STATE of Arizona, Appellee, v. Donald James LUCAS, Appellant.
• Court: Arizona Supreme Court

Page 81

708 P.2d 81

146 Ariz. 597

STATE of Arizona, Appellee, v. Donald James LUCAS, Appellant.

No. 6175.

Supreme Court of Arizona,

In Banc.

Oct. 8, 1985.

Robert K. Corbin, Atty. Gen. by William J. Schafer III and Diane D. Hienton, Asst. Attys. Gen., Phoenix, for appellee.

George M. Sterling, Jr., John Antieau, J. Douglas McVay, Phoenix, for appellant.

CAMERON, Justice.

Defendant, Donald James Lucas, was convicted by a jury of two counts of kidnapping, A.R.S. § 13-1304; three counts of sexual assault, A.R.S. § 13-1406; and one count of aggravated assault, A.R.S. § 13-1204. Each offense was of a dangerous nature and committed while defendant was on release from confinement for prior felonies. A.R.S. § 13-604.01. Defendant was sentenced to serve a term of life imprisonment for each offense. Id. Three of the offenses related to one victim, and three related to another. The concurrent sentences for the offenses against the second victim were to run consecutively to those relating to the first victim. A.R.S. § 13-708.

In addition to his appeal to this court, defendant sought post-conviction relief, pursuant to Rule 32, Arizona Rules of Criminal Procedure, 17 A.R.S., in propria persona. Defendant also moved in propria persona to expand the record, requesting that he be allowed to file a supplemental brief as well as other pleadings and exhibits. We granted these motions. We have consolidated all these matters and considered defendant's contentions, as well as those of his attorney, in this opinion. We have jurisdiction pursuant to art. 6 § 5(3) of the Arizona Constitution and A.R.S. §§ 13-4031 and -4035.

We must answer the following questions:

1. Did the trial court improperly refuse to sever counts relating to the first victim from those relating to the second?

2. Did the trial court improperly refuse to grant a directed verdict pursuant to Rule 20, Arizona Rules of Criminal Procedure, 17 A.R.S.?

3. Did the trial judge improperly instruct the jury by:

a. failing to give a justification instruction?

b. failing to instruct the jury sua sponte on unlawful imprisonment as a lesser-included offense of kidnapping and sexual abuse is a lesser-included offense of sexual assault?

c. giving an erroneous instruction on aggravated assault?

4. Did defendant receive effective assistance of counsel?

5. Did the trial court improperly deny the request for relief pursuant to Rule 32?

6. Did the police violate defendant's Miranda rights?

About 7:30 on the morning of 9 May 1983, defendant entered a bar in downtown Phoenix, Arizona. There he met the first victim, Jeanie B. After a drink and brief conversation, Jeanie accepted a ride from defendant to a restaurant where she could purchase breakfast. Instead, defendant drove to another downtown area bar where he and Jeanie consumed more alcohol. Defendant solicited Jeanie to commit an act of prostitution to which she did not respond. Defendant and Jeanie then drove to a Circle K store where defendant purchased beer. Upon reentering the car, defendant drove into an alley behind the Circle K. There, he started hitting Jeanie and ordered her to perform fellatio upon him as he drove. Jeanie complied after defendant displayed a knife and threatened her with it. Jeanie escaped by removing the ignition key when the car stopped at an intersection. She was later treated at a hospital for bruises, lacerations, one or possibly two broken ribs, and a punctured lung.

Immediately after this incident, defendant hitched a ride to a location on East McDowell Road. At approximately noon, he entered what he though was a bar. The establishment was, however, a club in which women danced nude and which did not serve alcohol. There the defendant met the second victim, Sue H., an employee. During defendant's stay in the club, Sue danced nude in front of him one or more times, served him lunch, and joined him in drinking soft drinks. Defendant told Sue that his car needed service and asked her to drive him to a junk yard where he could purchase an engine. Sue agreed and they departed together. Along the way, they made several stops, including one at a convenience store where defendant purchased beer. After defendant completed his business at the junk yard, he reentered Sue's car and they began to drive off. A short distance from the yard, in a desert area, defendant feigned nausea and asked Sue to stop the car. Sue testified that defendant then began to choke her, that he removed the gun she kept in the glove compartment, and that he threatened her with it. Defendant bound and gagged Sue and locked her in the trunk of her car overnight. The next day, before releasing her, he forced her to engage in various sexual acts. She was later treated for numerous bruises and lacerations and a bladder infection. From his convictions and sentences, defendant appeals.

1. SEVERANCE

Defendant contends that the trial court erred in failing to grant his motion to sever the counts involving Jeanie B. from the counts involving Sue H. We do not agree.

Our rules provide in pertinent part:

Joinder

a. Offenses. Provided that each is stated in a separate count, 2 or more offenses may be joined in an indictment, information, or complaint, if they:

(1) Are of the same or similar character; or

(2) Are based on the same conduct or are otherwise connected together in their commission; or

(3) Are alleged to have been a part of a common scheme or plan.

* * *

* * *

Rule 13.3, Ariz.R.Crim.P., 17 A.R.S.

We believe that the evidence in this case satisfied each of the tests for joinder in Rule 13.3. The crimes are of the same or similar nature, and connected together in time and location. In addition, they appear to be part of a common scheme or plan. In each episode, defendant befriended a woman in a bar-type establishment and persuaded her to leave with him. Each time they stopped at a convenience store to purchase beer. Furthermore, in both instances, defendant used a weapon to coerce his victim to perform fellatio upon him in an automobile. The second incident followed immediately after the first and both occurred within a period of approximately twenty-four hours. The conduct described was so connected that at the trial of one victim's counts, the evidence of the other victim's counts would be admissible. Rule 404(b), Ariz.R.Evid., 17A A.R.S.; State v. Cruz, 137 Ariz. 541, 672 P.2d 470 (1983). We believe joinder was proper.

As to defendant's request for severance, our rules provide that counts that have been properly joined may still be severed.

Severance

a. In General. Whenever 2 or more offenses * * * have been joined for trial, and severance of any or all offenses * * * is necessary to promote a fair determination of the guilt or innocence of any defendant of any offense, the court may on its own initiative, and shall on motion of a party, order such severance.

* * *

* * *

Rule 13.4, Ariz.R.Crim.P., 17 A.R.S.

The decision whether to grant a motion for severance is within the sound discretion of the trial court which we will not reverse absent clear abuse. State v. Gretzler, 126 Ariz. 60, 73, 612 P.2d 1023, 1036 (1980), cert. denied, 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). The test is whether the defendant has, at the time of his motion, shown that he would be prejudiced by the trial court's failure to sever. State v. Via, 146 Ariz. 108, 115, 704 P.2d 238, 245 (1985). A relevant consideration is that of judicial economy. Id.

We do not believe that the trial court abused its discretion under the facts of the instant case. In State v. Newman, 122 Ariz. 433, 435-36, 595 P.2d 665, 667-68 (1979), we considered the question of whether rape and burglary counts relating to one victim should have been severed from an attempted burglary count related to another victim. In holding that severance was not mandated, we emphasized such common factors as the clothes worn by the defendant, the weapon used, the time of day, and the location of the incidents. See also State v. Dale, 113 Ariz. 212, 550 P.2d 83 (1976) (no abuse of discretion where defendant offered a ride to each victim and beat each before raping her); State v. Williams, 108 Ariz. 382, 499 P.2d 97 (1972) (factors to consider in determining whether severance is appropriate include closeness in time of the incidents, locations, and the criminal's behavior); State v. Frederick, 129 Ariz. 269, 630 P.2d 565 (App.1981) (common factors included the locations where the victims were picked up, the time of day, defendant's discussion of marijuana, threats of death, and forced fellatio). The crimes, in the instant case, bore several similarities in areas where one would expect to find differences. That they differed in some small respects is not determinative. "In order for two crimes to be classified as a common plan or scheme it is not necessary for the crimes to have been perpetrated in an absolutely identical manner, * * *, so long as the court perceives a visual connection between the two crimes." State v. Tipton, 119 Ariz. 386, 388, 581 P.2d 231, 233 (1978) (citations omitted). Severance was not mandated in the instant case.

2. DIRECTED VERDICT

At the close of the state's evidence, defendant moved for a directed verdict of acquittal on all charges and, alternatively, on all allegations of dangerousness pursuant to Rule 20, Arizona Rules of Criminal Procedure, 17 A.R.S. The trial court denied this request and defendant now argues that this denial was in error. We do not agree.

a. Allegations of Dangerousness

In order for defendant to receive an enhanced sentence pursuant to A.R.S. § 13-604.01, the jury must find that the offense committed involved "the use or exhibition of a deadly weapon or dangerous instrument or * * * the intentional or knowing infliction of serious physical injury * * *."

In the instant case, evidence was sufficient to find that defendant used or exhibited a dangerous instrument as part of his sexual assaults. Jeanie testified...