State v. Ramirez

• Decision Date: 27 June 1984
• Docket Number: CA-CR,No. 2,2
• Citation: State v. Ramirez, 688 P.2d 1063, 142 Ariz. 171 (Ariz. App. 1984)
• Parties: The STATE of Arizona, Appellee, v. Saul Castillo RAMIREZ, Appellant. 3336.
• Court: Arizona Court of Appeals

Page 1063

688 P.2d 1063

142 Ariz. 171

The STATE of Arizona, Appellee, v. Saul Castillo RAMIREZ, Appellant.

No. 2 CA-CR 3336.

Court of Appeals of Arizona Division 2.

June 27, 1984.

Review Denied Sept. 20, 1984.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III and Greg A. McCarthy, Asst. Attys. Gen., Phoenix, for appellee.

Robertson & Villarreal, Ltd. by Michael Villarreal, Florence, for appellant.

OPINION

HOWARD, Judge.

The defendant, convicted by a jury of second-degree murder and theft of property of a value of more than $1,000, was sentenced to concurrent prison terms of 21 years and 5 years, respectively.

On January 10, 1983, the victim, Fred Smith, was discovered missing from his home in Superior, Arizona. His automobile was gone, the telephone, which had been torn from the wall, had blood on it. There were bloody streaks on the refrigerator and a puddle of blood on the porch. On January 26, approximately 22 kilometers before Obregon, Mexico, Captain Nevarez of the Federal Police, stopped an automobile which had failed to dim its lights. The automobile was being driven by the appellant. He was not alone. There were some musicians in the car and a homosexual dressed like a woman. The appellant told the captain his name was Fred Smith and that he did not have any documents showing permission to have the car in Mexico, having lost them. The appellant then offered the officer $10,000 pesos if he would release him. This bribe was refused. Captain Nevarez looked in appellant's wallet and found some documents bearing Fred Smith's name. The wallet also contained a baptismal certificate in the name of Saul Castillo Ramirez, which appellant explained belonged to a friend of his to whom he was delivering it.

The appellant was arrested and an inquiry by Captain Nevarez of the Nogales office revealed that the car was stolen. Arizona authorities were informed of the arrest and on January 27 Sergeant Ramirez of the Superior Police Department, and three other officers, traveled to Obregon, Mexico. The car and appellant were brought back to Superior on January 29. During the trip back, after being advised of his Miranda rights, appellant told Sgt. Ramirez that Fred Smith's body could be found in a well near Eloy, Arizona.

On January 30 Rocky Jung, an identification technician with the Pinal County Sheriff's Department, located the well. It was approximately 20 inches in diameter. They found two gas tickets bearing Fred Smith's name at the well and some blood near the top of the well. A light and a hook were lowered down the well. A gold colored blanket which looked like it had blood on it was recovered near the 100-foot level. A green electric blanket was recovered at the 125- to 150-foot level. A shirt was also brought up. A video camera was lowered down the well and a video tape made. A jacket was recovered and then Fred Smith's body was found near the 300-foot level. The body was lifted up by means of a hook. It had been upside down in the well and the left wrist of the body was bound by a wire.

The appellant testified at trial. He said he was a Mexican citizen and a migrant agricultural worker with a wife living in Eloy. He knew the victim, having worked for him in the past. He admitted he was at the victim's house on the evening of Sunday, January 9, 1983. He stayed there overnight in a shed or a "guesthouse". He left about 8:30 or 9:00 o'clock on the morning of January 10, 1983. He saw the victim at that time, alive and well. He hitchhiked to Eloy, arriving on the same day. On the second or third day that he was in Eloy, he was standing in front of the El Charro Bar, which he said was open, when a man he knew slightly, called Jesus Ortiz, drove up and asked if he knew where he could hide something. The appellant knew that Ortiz was involved with marijuana and thought Ortiz wanted to hide some of it so he got in the car and directed him to a well located two miles outside of town. Ortiz got out of the car and opened the trunk. The appellant got out to help him and as they were lifting a bundle of rags out of the trunk, Ortiz told him that they were going to take a trip to Nogales. It was dark and appellant could not see exactly what the bundle was. When they picked it up, appellant realized that the bundle of rags was a human body. It was still damp with blood. The appellant stopped helping and Ortiz threw the body down the well. Ortiz told him that he had hit the victim over the head. They departed for Nogales. Appellant went along because he had been compromised. He did not recognize the car that Ortiz was driving until they got to Nogales, when he realized it was the victim's car. They went from Nogales, across the border, heading for Hermosillo, Sonora. They stopped at the small town of Altar for gas. (We note that Altar is approximately 40 miles west of the main highway from Nogales to Hermosillo.) Once in Hermosillo, Ortiz went into a house of prostitution, leaving appellant with the keys to the car. Appellant waited all evening but Ortiz never came out so he left in the victim's car to go find his parents. He was going to Obregon to see some friends of his parents when he was stopped by the police.

Certain evidence adduced by the state casts serious doubt upon appellant's testimony. An episcopal priest who lived across the street from the victim noticed that at approximately 8 a.m. on the morning of January 10 the gate was open and the victim's car was gone. According to the appellant, the victim was alive at this time. Also, the El Charro Bar was only open on weekends and could not have been open on the day appellant met Ortiz outside of the bar. Furthermore, although the appellant explained why he had the victim's car, he never gave an explanation as to why he had papers belonging to the victim in his wallet. But most striking is the incredulous coincidence that this Jesus Ortiz should happen to murder the man from whose home the appellant had departed two or three days previously. As for Ortiz, there was testimony that a Jesse Ortiz had lived in Eloy but he could not be found. Other facts shall be set forth as they pertain to the various issues under discussion.

Appellant contends that the trial court erred in (1) admitting hearsay statements of the victim under the residual hearsay exception to the hearsay rule; (2) admitting certain photographs and a video tape of the well where the victim's body was discovered; (3) in failing to direct a verdict; (4) in refusing to instruct the jury on lesser included offenses; (5) in instructing the jury regarding flight, and (6) in imposing an excessive sentence. We affirm.

THE PHOTOGRAPHS AND VIDEO TAPE

The trial court admitted into evidence, over objection, a video tape showing the side of the well, a photograph of the decedent's bound and badly decomposed body, and the actual top portion of the decedent's skull. Appellant contends that these items lacked relevancy and unnecessarily inflamed the passion of the jurors. Photographs relevant to an issue in the case may be admitted into evidence to identify the deceased, to show the location of the mortal wounds, to show how the crime was committed and to aid the jury in understanding the testimony of the witnesses. State v. Mohr, 106 Ariz. 402, 476 P.2d 857 (1970). If the photographs have any bearing on any issue in the case they may be received although they may also have a tendency to prejudice the jury against the person who committed the offense. The discretion of the trial court will not be disturbed on appeal unless it has been clearly abused. State v. Mohr, supra. The video tape showed the well casing and the debris that was in the well. It shed light on how the body was disposed of and where the body was found. The video tape was used by a pathologist, Dr. Froede, in explaining the cause of death. He believed that death was caused by six blunt-forced blows to the head. Dr. Froede viewed the video tape, and concluded that the interior wall of the well casing did not contain any protrusions that could have caused these blows.

The calverium of the skull, which is its top part from above the eyes, was used here by Dr. Froede in his testimony. Dr. Froede testified that the calverium of the victim showed how the trauma might have been inflicted on the skull. He testified that the skull itself would be a greater aid to him in explaining than the color photographs that had been taken and explained to the court why this was so.

The photographs of the victim's body, as removed from the well, shows that his wrist was bound with a wire. Also, Dr. Froede identified the body reflected in the photograph as the body that he performed the autopsy on and Officer Jung identified the body as the body that he and his assistants removed from the well. Since the state had to prove under A.R.S. § 13-1104(A)(1) that the appellant intentionally caused the death of another person, the fact that one hand was bound with a wire bears on the issue of intent. Furthermore, the testimony identifies the body found in the well as the body upon which Dr. Froede performed the autopsy. In State v. Chapple, 135 Ariz. 281, 660 P.2d 1208 (1983) the court stated that the language in State v. Mohr, supra, should not be interpreted to mean that any photograph which is relevant may be admitted despite its tendency to prejudice the jury. When an offered exhibit is of a nature to incite passion or inflame the jury, which apparently would be any photograph of the deceased, the court must go beyond the question of relevancy and consider whether the probative value of the exhibit outweighs the danger of prejudice created by admission of the exhibit. It is only if the photographs or exhibits have no tendency to prove or disprove any question which is actually contested that inflammatory exhibits should not be admitted. Here, the video tape of the inside of the well is not inflammatory in any sense. The other two exhibits helped to...