State v. Orantez

Decision Date26 September 1995
Docket NumberNo. CR-95-0060-PR,CR-95-0060-PR
Citation902 P.2d 824,183 Ariz. 218
PartiesThe STATE of Arizona, Appellee, v. Gerardo Brito ORANTEZ, Appellant.
CourtArizona Supreme Court
OPINION

MOELLER, Vice Chief Justice.

Gerardo Orantez was convicted of kidnapping and sexual assault, and sentenced to nine years in prison. The court of appeals affirmed. We granted review and now reverse because the trial court should have ordered a new trial based on newly discovered evidence. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 13-4031 (1989) and 13-4033 (Supp.1994), and Arizona Constitution article VI, 5(3). 1

FACTS

The victim, Monica, and her friend, Rachel, met at Sunny's Bar in Tucson on the evening of April 8, 1992. According to Rachel, a man, later identified by both women as the defendant, approached them and introduced himself as "Danny Orantez." Monica identified her assailant as a bouncer at Sunny's whose last name was Orantez. According to the bartender, however, defendant was never a bouncer at Sunny's.

Rachel testified that defendant was wearing gray pants and a white shirt. Defendant invited the two over to his place for a lasagna dinner and wrote an address and directions on a napkin. The bartender confirmed that defendant spoke with Monica at Sunny's on the night of the alleged crime.

Rachel left Sunny's at about 11:00 p.m. Monica stayed until after midnight. Shortly after 1:00 a.m., Monica was heard shouting in a Tucson neighborhood that she needed help because she was being raped. Area residents found her on the ground near her car, and she pointed in the direction of the desert. Two residents briefly followed a man in blue jeans and a gray T-shirt, but failed to apprehend him. Monica had some abrasions, but no lacerations or other serious injuries.

A police officer arrived and found Monica hysterical. The two residents described the suspect as a "skinny" Hispanic male, about five foot five. Monica also identified her assailant as slender and five foot four or five foot five in height. Defendant is five foot nine and, defense counsel argued at trial, not "skinny." She told the officer that a girlfriend had taken her home from Sunny's, her doorbell rang, and she answered the door, expecting her boyfriend. Instead, the man she had met at Sunny's was at her door with a knife. Two months later, in June, Monica gave another statement to a different police officer in which she reiterated that she had been abducted at her home.

At trial, Monica changed her story substantially. Instead of being abducted at her home, she now testified that defendant approached her car in the parking lot at Sunny's and asked her for a ride home. When she refused, he pulled a knife on her and forced her to drive to the desert where he sexually assaulted her. She claimed her original statement to the police officer and her later statement to the detective, to the effect that she had been abducted at home, were lies that she had concocted because she was concerned she would get in trouble for driving with expired tags on her car. Regardless of the place of abduction, Monica testified that she was forced into the car through the passenger door, sliding across the front seat to the driver's side of her car. However, an undamaged yellow rose was found tucked neatly in the front seat across which she said she slid. She stated that during the assault she bit the assailant's penis and then ran away.

Police did not find a knife, but they did find a screwdriver near Monica's car at the scene in the desert. Police also found eight latent prints on the hood of Monica's car that matched defendant.

She was taken to a hospital where her blood alcohol content measured .08 percent about three hours after the incident. Rachel testified that she received a call the next morning from Monica; Monica told her that the man they had met at the bar the previous evening had assaulted her.

At 7:10 the next morning, Monica called the detective and informed him that she had a napkin with an address the suspect had given her. Monica did not, however, give the napkin to the police for nearly two months, despite three or four efforts by the police to obtain it. At one point she said that she had given the napkin to Rachel. At trial, a handwriting expert could neither identify nor eliminate defendant as the author of the note on the napkin.

On April 29, about three weeks after the assault, Rachel and Monica were at the Sagebrush Cantina, where they were regulars who visited at least once a week. The bouncer at the Sagebrush testified that he knew defendant from the bar and that defendant was a regular there, particularly just before he was detained. However, no evidence showed that defendant, Rachel, or Monica knew each other from frequenting the Sagebrush. On the night of April 29, Rachel spotted defendant at the bar and informed the bouncer. A Tucson police officer was called, arrived, informed defendant of the allegations, and asked defendant if he would come to the station to give a statement. Defendant agreed. Defendant denied any involvement and also denied having been in Sunny's Bar in the previous year and a half. An officer examined defendant's penis and observed no remaining cuts, scars, or marks.

At the station, Rachel picked defendant out of a photo lineup as the man they had met at Sunny's. Monica also identified defendant out of a photo lineup as the assailant.

Defendant's theory at trial was that he was not present at the crime scene with Monica and that she had wrongfully accused him because she had a jealous boyfriend waiting for her at home. According to defendant, Monica simply made up the accusation of sexual assault to cover up a consensual sexual act with someone else.

Not until the second day of trial did the prosecutor learn and disclose that Monica was enrolled in a methadone treatment program due to a ten-year heroin addiction. The state contended that evidence of the methadone program was irrelevant because Monica was a stabilized addict. With the jury absent, Monica testified that she did not remember if she was taking methadone in March or April, but that she had gone off it sometime during the prior six months (the trial was in September). She denied using heroin in March and April prior to the incident. She also testified that she did not use cocaine or any other drug on April 8 or 9. Based on her testimony, the trial judge precluded defendant from asking Monica about drug use during cross-examination and from mentioning drug use during closing argument.

Monica also did not reveal, prior to trial, that she has a foster brother named Danny Orantez, the name she had originally attributed to her attacker. Danny Orantez was in jail at the time of the incident and had been since the preceding November.

The jury convicted defendant of kidnapping and sexual assault, both found to be nondangerous offenses, and acquitted him of aggravated assault. In his motion for new trial, defendant argued, among other things, that because Monica was a heroin addict, because she may not have been taking her methadone, and because she had been drinking on the day of the crimes, her ability to perceive, remember, and relate the incident was affected. Defendant requested Monica's methadone records. The trial court denied the motion for new trial, but ordered that the methadone treatment records be produced for defendant.

On January 24, 1993, defendant filed a motion to set aside the judgment, raising as newly discovered evidence Monica's history of lying to police and lawyers on other matters, her drug abuse and denial of drug abuse at trial, and evidence of prostitution to support defendant's alternate theory of consent. Defendant presented testimony that Monica had not visited the methadone clinic for her daily treatment on April 2 and 3. She came in on April 4 and received methadone for that day and the next. She did not receive doses for April 6, 7, or 8. On April 9 she came in for a dose. Monica's methadone program required a daily dose.

A dispensing nurse from the clinic testified that, although Monica told her she was not using heroin, she overheard Monica tell others in the clinic that she had been using heroin. The clinic administrator testified that because of the three-day absence from treatment (April 6-8), it was probable that Monica would have used heroin during that time.

Defendant also presented evidence that Monica gave a blood sample at approximately 4:00 a.m. on April 9, a few hours after the alleged assault. It was positive for cocaine, metabolites of cocaine, and morphine (morphine indicates use of heroin, codeine, or morphine, but not methadone). The test results meant that she used cocaine within six hours of the blood draw--sometime after 10:00 p.m. the night of the alleged assault.

Defendant also offered evidence that Monica told her methadone case administrator in March that she might have to engage in prostitution again to support her drug habit and, on April 20, 1992, less than two weeks after the alleged assault, she admitted to the administrator that she had been using heroin and was, in fact, practicing prostitution to support her habit.

In denying the motion to vacate the judgment, the trial judge concluded that the evidence of prostitution was inadmissible and that the evidence of drug use and lying about such use at trial would not have changed the verdict. The court of appeals affirmed.

ISSUE

Whether the trial court should have granted a new trial based on newly discovered evidence that the state's sole witness was using heroin and cocaine at the time of the alleged...

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