State v. Perry
| Decision Date | 13 January 1977 |
| Docket Number | No. 2,CA-CR,2 |
| Citation | 116 Ariz. 40,567 P.2d 786 |
| Parties | The STATE of Arizona, Appellee, v. Frank Anthony PERRY, Appellant. 872. |
| Court | Arizona Court of Appeals |
Appellant was convicted by a jury of the armed rape and armed kidnapping of a Miss F, and the kidnapping for rape and armed rape of a Mrs. N. He was sentenced to serve time in the Arizona State Prison.
The record shows that on September 23, 1975, at approximately 6:30 p. m. Miss F was hitchhiking on East Broadway in Tucson, Arizona. She had just been visiting at a friend's house and was headed home. She was picked up by appellant who was driving a Ford Galaxie sedan. As they started down Broadway towards the downtown area, appellant turned off to the right telling Miss F that he was going to his sister's house to pick up some silver but that he would take her all the way to her destination, East Speedway and North Euclid. They engaged in small talk and when it appeared to Miss F that they seemed to be driving away from the city, she asked appellant where his sister lived and he replied that she lived in the foothills. Miss F was getting frightened and asked appellant to let her out of the car so she could get a ride from someone else. He refused to do so and shortly thereafter stopped the car. He then reached under the seat, pulled out a revolver, stuck it into her side and told her that he was going to tape her hands. When she asked what he was going to do, he said he was going to rape her and pushed the revolver harder into her side as he taped her wrists together. Appellant then started his car and drove onto a gravel road. While he was driving, he grabbed her around the neck and ripped off her shirt. Miss F kept saying to appellant, "Don't kill me", and he kept answering "If you please me."
After appellant stopped the car at the top of a hill, he put a knife to her back and told her to undress. He also took the knife and cut the tape off her wrists and demanded that she undress him. She started to unbutton his shirt but he then commenced taking his clothes off himself. While he was taking off his clothes, she noticed that he had placed the revolver on the driver's side of the car floor board and she slid the revolver over to her side. Appellant then raped Miss F twice. After appellant raped Miss F the second time, he jumped up and asked her whether she could kill him. He told her he had nothing to live for and that he was going to shoot her and shoot himself. Then he said he wanted her to shoot him and he reached down, got the gun, opened his car door and fired a shot. He told Miss F that he could kill her, bury her out there in the desert and nobody would find her. By the time they did, they would not be able to identify her, he said, and if he got caught for murder he would only get seven years but if he got caught for rape he would get life.
Appellant then started talking about statistics and math and how many men got off for rape and how many got away with it. Miss F convinced him that he would get into more trouble if he killed her and told him that she wouldn't report him to the police if he would let her out. After further conversation appellant headed back to town. On the way he told her his name. Appellant left Miss F off at Euclid and Speedway and she ran to her apartment where she was living with her cousin. She told her cousin what had happened and her cousin called the police. The police took Miss F to the hospital where she was examined and then was driven to her aunt's house. A photograph taken of Miss F showed several bruises on her right side where she had been poked by the revolver.
The events leading up to the rape of Mrs. N commenced in the late evening hours of September 29, 1975. At the time Thomas Ausman and his wife, Lou, were sitting around the pool in an apartment complex located at 6901 East Broadway, Tucson, and were watching a TV movie. A person whom they later identified as the appellant came up to the pool area and began talking with Mr. Ausman. While they were conversing, Mr. Ausman saw Mrs. N leave her apartment with a basket full of laundry. She was headed to the laundry room on the north side of the apartment complex. As she walked past the pool area, Mr. Ausman noticed that appellant was watching her. During the conversation with Mr. Ausman, appellant stated that he had a job in computers. After a while he asked the Ausmans where the laundry room was and upon receiving directions he departed. The Ausmans, a short while later, left the pool area and went back to their apartment.
Mrs. N, after she passed the pool area, went to the laundry room and put some clothes in the dryer. She then went back up to her apartment. About thirty minutes later, she returned to the laundry room. When she got there she noted that the light switch had been torn out of the wall, which she thought was very strange. As she went to open the laundry room door so she could let a little light from the courtyard into the laundry room, she saw a man coming down the sidewalk. She started to leave but the man grabbed her and dragged her screaming into the laundry room. He had his hand over her mouth and a knife over her throat. After a further struggle in the laundry room he told her not to scream. The man smelled strongly of body odor, a fact which Mrs. Ausman had also noticed about appellant when he was talking to her and her husband.
While in the laundry room, appellant taped Mrs. N's hands behind her back. She asked him if he was going to rape her and he said that he was. Appellant stuck a knife in her ribs and took her out of the laundry room to a pickup truck. The parking lot was dimly lit and she thought that the color of the pickup was dark green. Appellant made her sit down on the passenger side of the pickup and they left the parking lot. He told her to keep her eyes closed and then made her sit close to him. He started kissing her and fondling her breast. When she begged him to take her back, he said, "If you don't please me, then I'm not bringing you back." They drove through a populated area and then headed out on a dirt road. As they were driving through the populated area, Mrs. N did not keep her eyes closed all the time and was able to get a clear side view of appellant. When they got out into the desert, he stopped the pickup and raped her twice. As with Miss F, appellant cut the tape off Mrs. N's hands so she could take her clothes off prior to the rape. After he raped her the first time, appellant told her that she was the fifth girl he had raped and that one had turned him in but he had gotten off. Mrs. N told him that she would not report him if he took her back. After the second rape, appellant was trying to decide whether to kill her out there in the desert or whether to bring her back. He told her that he wouldn't have to worry about her reporting him because he would probably get two years for manslaughter if he killed her whereas if she did report him, he could get twenty to thirty years for kidnap, assault and rape.
After Mrs. N convinced appellant that she was not going to report him, he took her back on the condition that she keep her eyes closed all the time and not look at his face. He left her off at a K-Mart near her apartment and gave her a $5 bill from which he had wiped his fingerprints, telling her it was for a "piece of ass." He then told her to go into the K-Mart grocery store, and buy something. He said he would be watching her all the way and she had better not do anything because he would kill her baby. At that time it was approximately twenty-five minutes after three on the morning of September 30, 1975. She went into K-Mart, did as he had instructed and went back to the apartment.
When Mrs. N got back to her apartment she woke her husband and told him what had happened. Her husband wanted to call the police right away but she told him not to call because appellant had said that he was going to be watching and that if she did anything he was going to kill her baby and shoot her husband's leg off. The police were called later that morning by Mr. N.
While out in the desert, Mrs. N noticed that the upholstery on the seat of the pickup was ripped, exposing part of the foam rubber.
On September 29, 1975, a police officer who lived in the same apartment complex as Mrs. N heard a blood-curdling scream. He ran out in time to see a pickup truck departing from the parking area behind the laundry room. The parking area was not well lighted. He too thought that the pickup was dark green in color. He particularly noted that the pickup had a very loud muffler as if something were defective with its exhaust system. Subsequent police investigation and photos which were admitted into evidence reveal that appellant had a light blue, pickup truck whose upholstery was ripped in the front, thus exposing the foam rubber. A steak knife was also found in the driving compartment. Photographs taken of the pickup's exhaust system revealed a defect which would cause a loud muffler. Appellant admitted that the pickup had a loud muffler.
Appellant took the witness stand and admitted that he had picked up Miss F who was hitchhiking. He stated that she told him that her car was broken down and she needed $60 to repair it. He took this as a proposition and drove her out to the desert where, according to appellant, they had consensual sexual intercourse. He testified that he had offered Miss F a job but that she became angry when he would not give $60 immediately so she could get her car repaired. He further testified that he fired the revolver and taped her hands in order to scare her because he was afraid she would try to blackmail him by reporting him for rape.
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