State v. Miller

• Decision Date: 09 February 1977
• Docket Number: No. 2,CA-CR,2
• Citation: 115 Ariz. 279,564 P.2d 1246
• Parties: The STATE of Arizona, Appellee, v. Rick MILLER, Appellant. 880.
• Court: Arizona Court of Appeals

Page 1246

564 P.2d 1246

115 Ariz. 279

The STATE of Arizona, Appellee, v. Rick MILLER, Appellant.

No. 2 CA-CR 880.

Court of Appeals of Arizona, Division 2.

Feb. 9, 1977.

Rehearing Denied April 6, 1977.

Review Denied May 10, 1977.

Bruce E. Babbitt, Atty. Gen. by William J. Schafer III, Thomas G. Baker and Shirley H. Frondorf, Asst. Attys. Gen., Phoenix, for appellee

John M. Neis, Pima County Public Defender by Charles L. Weninger, Asst. Public Defender, Tucson, for appellant.

HOWARD, Chief Judge.

Appellant was found guilty of a jury of first degree burglary and child molestation. He was sentenced to concurrent terms in the Arizona State Prison for not less than four nor more than five years on the burglary conviction and not less than twenty years nor more than life on the conviction of child molestation. He contends the trial court erred by (1) admitting testimony of prior bad conduct, (2) denying his motion to suppress, (3) allowing the same jury that determined quilt to determine the truth of the allegation of a prior offense, (4) refusing his instruction on expert testimony and (5) proceeding with his trial in the face of a stay order issued by this court. He also claims that the prosecutor violated his constitutional rights by commenting on his failure to testify. The facts will be set forth as they apply to each issue.

ADMISSIBILITY OF PRIOR BAD ACTS

Appellant was indicted on a six-count indictment. In Count One it was charged Upon appellant's motion Counts One and Two were separated from Counts Three and Four and tried separately. Counts Five and Six were also separated, each to be tried in a separate trial. Counts One and Two came on for trial first. The court allowed testimony as to Counts Three and Four to be admitted into evidence at the trial of Counts One and Two. Appellant claims the introduction of the testimony as to Counts Three and Four was prejudicially erroneous since 'Mary Roe' was unable to positively identify the appellant as her assailant.

that he committed burglary in the first degree on August 31, 1975 and in connection with that charge in Count Two, he was charged with the molestation of a child (for the sake of anonymity we will refer to her as 'Jane Doe'). In Count Three he was charged with first degree burglary committed on August 17, 1975, and in connection with that charge, in Count Four, he was charged with molestation of a child (we shall refer to this child as 'Mary Roe'). In Count Five he was charged with first degree burglary and in Count Six he was charged with obstructing justice.

The general rule is that in the prosecution of a particular offense, evidence of another crime entirely distinct and independent of that for which the defendant is being tried is neither relevant nor admissible. State v. Hughes, 102 Ariz. 118, 426 P.2d 386 (1967). An exception to this rule is recognized where the offense charged involves an element of abnormal sex acts such as child molestation. State v. McFarlin, 110 Ariz. 225, 228, 517 P.2d 87 (1973). In such instances it is admissible to show the accused's propensity to commit such perverted acts.

'Jane Doe', age 11, testified that in the early morning hours of August 31, 1975, she awoke and found a strange man in her bedroom. She described the act of molestation which occurred and described the man as 'pot bellied' and over fifty. She could not identify him because she could not see his face. Appellant's fingerprints were found inside the yard gate and on the window and window screen through which he gained entry.

The state then presented the testimony of 'Mary Roe' concerning an incident in the same neighborhood which occurred on August 17, 1975. She had been shown ten photographs by a police detective in a photo lineup and eliminated all except that of appellant. She identified the photograph as resembling appellant. At trial, she testified:

'Q. Okay, did a man come to your house with some photographs for you to look at?

A. Yes.

Q. Did he ask you to look at those photographs?

A. Yes.

Q. Did you go through them all?

A. Yes.

Q. Did you see one that you recognized or you thought you recognized?

A. Yes, I saw one.

Q. You saw one person you thought you recognized?

A. Yes.

Q. Did you recognize him as being the person that had come into your house, into your bedroom, that evening?

A. Yes.

Q. Did you tell the officer that you recognized him?

A. Yes.

Q. (MARY), I'm going to ask you to take a look around the courtroom, and I would ask you if you see anyone in the courtroom that ressembles (sic) the man who reached into your room in the early morning hours of August 17th?

A. Yes.

Q. Where is that man seated?

A. Sitting next to the defender.'

Although 'Mary Roe' identified appellant as resembling the man who molested After appellant's conviction on Counts One and Two, Counts Three and Four were tried before a jury. Evidence as to the incidents in Counts One and Two were not introduced in the trial of Counts Three and Four. Appellant was found not guilty of Counts Three and Four. He now claims that the not guilty verdicts should void the guilty verdicts in the instant case.

her, she could not testify for certain that appellant was that man.

He also claims that the state failed to lay a sufficient foundation for the admission of testimony relating to Counts Three and Four into evidence. Before evidence of other bad acts may be used against a defendant under any exception, the state must prove by substantial evidence, sufficient to take the case to the jury, that the defendant committed the acts. 'Mary Roe' described her molestor as 58 years of age, medium complexion, tattooed and balding. Appellant is 50 years of age, of fair complexion and has tattoos on his right and left forearms. She lived in the same neighborhood as 'Jane Doe' and the same modus operandi was used as was used in the 'Jane Doe' case. We believe that the state made a proper foundation which merited the introduction of the testimony.

Analogizing to the case of State v. Kiser, 111 Ariz. 316, 529 P.2d 215 (1974) appellant claims that his conviction on Counts One and Two should be reversed since he was subsequently found not guilty on Counts Three and Four. We do not agree. State v. Kiser, supra, did not concern itself with the admissibility of prior bad acts but rather the use of a prior felony conviction to impeach. The rule in Kiser is that while a prosecutor may use a prior felony conviction which is on appeal to impeach a defendant who takes the witness stand he does so at his own risk since if the prior felony conviction should be reversed on appeal and no new trial held, then the trial court has no other alternative but to grant a new trial. A more apt analogy would be the case of State v. Little, 87 Ariz. 295, 370 P.2d 756 (1960) where the state sought to introduce substantively a prior criminal act of which the defendant had been found not guilty. Contrary to the rule which is generally prevalent in the United States, our Supreme Court held in Little that the state cannot introduce into evidence prior bad acts of which the defendant had been acquitted for the purpose of showing motive, intent, scheme, identity, modus operandi, etc. The primary rationale for the rule in State v. Little, supra, is that to the extent that evidence of the prior offense tends to prove the instant offense, the defendant is required, in order to avoid conviction and punishment for the instant offense, to refute for the second time his commission of the prior offense. A verdict of acquittal should relieve the defendant from having to answer again, at the price of conviction for that crime or another, evidence which amounts to a charge of a crime of which he has been acquitted.

The same considerations do not apply when the defendant has not yet been acquitted of the prior bad acts but is subsequently acquitted. The subsequent acquittal on Counts Three and Four does not mean that there was not sufficient evidence to take the case to the jury. It simply means that the particular jury did not find that the state proved the guilt of appellant on Counts Three and Four beyond a reasonable doubt. One can only speculate as to the reasons the jury found appellant not guilty of those counts. The record does show, however, that testimony concerning the crimes covered by Counts One and Two was not offered in the trial on Counts Three and Four. We therefore conclude that this case need not be reversed because of appellant's subsequent acquittal on Counts Three and Four.

ILLEGAL SEARCH AND SEIZURE

Prior to being charged with the instant offenses, appellant was arrested by Tucson Police officers for loitering around a school in violation of Tucson Code § 11--33 which provides:

'A person is guilty of loitering when he:

(4) Loiters or remains in or about a school, not having any reason or relationship involving custody of or responsibility for a pupil or student, or any other specific, legitimate reason for being there, and not having written permission from anyone authorized to grant the same.'

The state had made a comparison of appellant's fingerprints secured as a result of the above arrest with fingerprints found at the scene of the crime. Appellant moved to suppress this fingerprint evidence on the ground that the City of Tucson Ordinance was unconstitutional. This motion to suppress was denied. Citing the case of Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), it is appellant's contention that since the ordinance is unconstitutional the evidence obtained as a result of the arrest must be suppressed.

Appellant has set forth a lengthy argument concerning the constitutionality of the ordinance. Appellee contends that we need not decide whether the ordinance is constitutional because the exclusionary rule is not applicable since its purpose is to deter unlawful police conduct and not...