State v. Rodriguez

• Decision Date: 14 July 1998
• Docket Number: No. CR-97-0120-AP,CR-97-0120-AP
• Citation: 961 P.2d 1006,192 Ariz. 58
• Parties: , 273 Ariz. Adv. Rep. 28 STATE of Arizona, Appellee. v. Toribio Rodriguez RODRIGUEZ, Appellant.
• Court: Arizona Supreme Court

Page 1006

961 P.2d 1006

192 Ariz. 58, 273 Ariz. Adv. Rep. 28

STATE of Arizona, Appellee. v. Toribio Rodriguez RODRIGUEZ, Appellant.

No. CR-97-0120-AP.

Supreme Court of Arizona,

En Banc.

July 14, 1998.

Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel Criminal Appeals Section and Linda L. Knowles, Phoenix, Assistant Attorney General, for Appellee.

David Alan Darby, Tucson, for Appellant.

OPINION

McGREGOR, Justice.

¶1 Defendant Toribio Rodriguez appeals his conviction and death sentence for first-degree murder, and his convictions and sentences for two counts of sexual assault and one count of first-degree burglary. ¹ We review this case on direct, automatic appeal pursuant to Arizona Revised Statutes (A.R.S.) section 13-4031. For the following reasons, we reverse on all counts and remand for retrial.

I.

¶2 Dawn Dearing (the victim) lived alone in an apartment complex in Tucson. She spent the evening of August 24, 1988, at her apartment with a co-worker. The victim became intoxicated ² before the co-worker left. The next afternoon, a friend knocked on her door but heard no answer. The friend returned several times that day and left notes for the victim.

¶3 On August 26, the friend returned to the apartment and found the door unlocked. Opening the door, she discovered that the apartment had been ransacked. A maintenance man entered the apartment, found the victim's body, and then remained outside the apartment door until police arrived.

¶4 The police found the victim on the bathroom floor in a pool of blood. She was clad only in a nightgown, which had been pulled up over her chest. She had been severely beaten and repeatedly slashed and stabbed. Two objects, a curling iron and a knife handle (with no blade), had been inserted into the victim's vagina. The curling iron was left switched on.

¶5 The police found several pieces of broken knives on the floor beside the body, including a knife blade bearing a palm print. James Wallace, a fingerprint examiner for the Tucson Police Department, examined the blade. According to Wallace's trial testimony, the print on the blade matched defendant's palm. Further, in response to a question asked by the jury during deliberations, Wallace testified that the print was impressed in "body fluid." The palm print provided the only physical evidence linking defendant to the crime.

¶6 At trial, defendant denied that the palm print was his. He testified that if it was his print, he did not know how it came to be on the knife blade. Defendant further testified that he did not know the victim. He denied having ever been in her apartment, although he lived in the adjacent apartment complex at the time of the killing.

¶7 Following two days of testimony, the jury convicted defendant on December 12, 1996. The court sentenced defendant to death after holding a hearing on aggravation and mitigation.

¶8 Defendant raises multiple issues on appeal. Because we reverse defendant's convictions, we need not address the arguments related to sentencing.

II.

¶9 Defendant first argues that he is entitled to a judgment of acquittal because the evidence presented was insufficient to support his convictions. We disagree. ³

¶10 Judgment of acquittal is required when no substantial evidence supports a conviction. State v. Hughes, 189 Ariz. 62, 73, 938 P.2d 457, 468 (1997). Substantial evidence is that which reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt. Id. "If reasonable [persons] may fairly differ as to whether certain evidence establishes a fact in issue, then such evidence must be considered as substantial." Rodriguez, 186 Ariz. at 245, 921 P.2d at 648.

¶11 Defendant's argument centers on the lack of any physical evidence other than his palm print linking him to the crime. We have held, however, that fingerprints ⁴ alone may support a conviction when "not found in a place and under circumstances where they could have been reasonably made at a time other than the time of the commission of the offense." State v. Carter, 118 Ariz. 562, 563, 578 P.2d 991, 992 (1978) (quoting State v. Brady, 2 Ariz.App. 210, 213, 407 P.2d 399, 402 (1965)). In Carter, a jury convicted defendant Carter of breaking into a house. Only a fingerprint on the inside of a window at the point of entry linked Carter to the break-in. At trial, Carter denied having ever been in the house. This court sustained the conviction, reasoning that fingerprint evidence is sufficient if the location of the fingerprints does not reasonably support the inference that the impression occurred other than during commission of the crime. Id.

¶12 Other Arizona cases have sustained convictions resting on fingerprint evidence if the jury could reasonably infer that the prints could only have been impressed when the crime was committed. See State v. Burton, 144 Ariz. 248, 252, 697 P.2d 331, 335 (1985) (defendant's fingerprints on pack of gum left by robber on store counter); State v. Spain, 27 Ariz.App. 752, 754, 558 P.2d 947, 949 (1976) (defendant's prints on bedroom window); Brady, 2 Ariz.App. at 212-13, 407 P.2d at 401-02 (defendant's fingerprints on filing cabinet that had been moved and rifled by thief; homeowner never allowed defendant inside house; homeowner bought the cabinet new and had recently cleaned it). Courts of other jurisdictions have likewise sustained convictions under similar circumstances. See Taylor v. Stainer, 31 F.3d 907, 909 (9th Cir.1994); State v. Foster, 282 N.C. 189, 192 S.E.2d 320, 326 (1972); State v. Miller, 49 Ohio St.2d 198, 3 O.O.3d 321, 361 N.E.2d 419, 422-23 (1977), judgment vacated on other grounds, 438 U.S. 911, 98 S.Ct. 3136, 57 L.Ed.2d 1156 (1978); State v. Lucca, 56 Wash.App. 597, 784 P.2d 572, 573 (1990); see also M.C. Dransfield, Annotation, Fingerprints, Palm Prints, or Bare Footprints as Evidence, 28 A.L.R.2d 1115, 1122, 1150 (1953).

¶13 In this case, the palm print evidence provides a sufficient link between defendant and the killing because the circumstances do not reasonably support the inference that the impression occurred other than during commission of the crime. The position of the print was inconsistent with regular use of a knife but was consistent with someone grasping the blade to slash a victim after the handle had broken off. C.f. Taylor, 31 F.3d at 909 (fingerprint position on sill consistent with someone crawling through window). At trial, defendant denied having ever been in the victim's apartment and offered no explanation for his print on the knife. See State v. Bland, 757 S.W.2d 242, 245 (Mo.App.1988) (fingerprint sufficient where defendant denied having ever been in house where his fingerprints were found following sexual assault); State v. Miller, 289 N.C. 1, 220 S.E.2d 572, 574 (1975) (thumbprint on lock at point of entry was sufficient; defendant denied having been on premises). Finally, the state's fingerprint expert testified that the print was on top of "body fluid," suggesting that the knife was already bloody when the impression occurred. See State v. Phillips, 15 N.C.App. 74, 189 S.E.2d 602, 605 (1972) (fingerprint left in blood sufficient). These circumstances reasonably exclude the inference that defendant's palm print came to be on the knife as a result of innocent activity. See Taylor, 31 F.3d at 909-10 (noting that fingerprint will support conviction where conceivable explanations consistent with innocence are "far-fetched, unsupported speculation"). Accordingly, sufficient evidence links defendant to the crime.

III.

¶14 Defendant also argues that he is entitled to a new trial because the trial court refused to instruct the jury with respect to his alibi theory. We agree.

¶15 At trial, defendant relied on the defense of "alibi." He attempted to show he was at work, away from the victim's apartment, at the time of the killing. The trial judge, however, concluded that the jury should not hear defendant's proffered alibi instruction.

A.

¶16 A party is entitled to an instruction on any theory reasonably supported by the evidence. State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995); State v. Shumway, 137 Ariz. 585, 588, 672 P.2d 929, 932 (1983). Nevertheless, a trial court generally is not required to give a proposed instruction when its substance is adequately covered by other instructions. State v. Mott, 187 Ariz. 536, 546, 931 P.2d 1046, 1056, cert. denied, --- U.S. ----, 117 S.Ct. 1832, 137 L.Ed.2d 1038 (1997). Nor must the trial court give every specific instruction requested by the defense. Instead, the test is whether the instructions adequately set forth the law applicable to the case. State v. Axley, 132 Ariz. 383, 392, 646 P.2d 268, 277 (1982). We view jury instructions in their entirety when determining whether they adequately reflect the law. State v. Gallegos, 178 Ariz. 1, 10, 870 P.2d 1097, 1106 (1994).

¶17 In deciding whether defendant was entitled to an alibi instruction, we first consider the sufficiency of the evidence to support an alibi defense. Evidence tending to show that the defendant had no opportunity to commit the crime because he was at another place when the crime occurred raises the alibi defense. State v. Berry, 101 Ariz. 310, 313, 419 P.2d 337, 340 (1966); Azbill v. State, 19 Ariz. 499, 501, 172 P. 658, 659 (1918). To decide whether the record reasonably supports an alibi defense, we consider evidence tending to establish when the crime occurred and evidence showing defendant's whereabouts during that time.

¶18 With respect to the time of the killing, the state established the time of death within a several-day range. Other evidence, if believed, tended to narrow the time to within a few hours. The state's forensic pathologist testified that the killing probably occurred sometime early in the period between 6 p.m. on Tuesday, August 23 and 6 p.m. on Thursday, August 25. A friend testified that he saw the victim alive late in the evening of ...