State v. Rodriguez
| Decision Date | 02 July 1996 |
| Docket Number | No. CR-94-0029-AP,CR-94-0029-AP |
| Citation | 921 P.2d 643,186 Ariz. 240 |
| Parties | STATE of Arizona, Appellee, v. Toribio RODRIGUEZ, Appellant. |
| Court | Arizona Supreme Court |
Defendant Toribio Rodriguez was charged with and convicted of first degree murder, two counts of sexual assault, and burglary. He was sentenced to death on the murder count, 21 years each on the sexual assaults, and 10.5 years on the burglary. The case is before this court on direct, automatic appeal. See Ariz. R.Crim. P. 31.2(b); Ariz.Rev.Stat. Ann. (A.R.S.) §§ 13-4031, 13-4035 (1989).
Dawn Dearing, the victim, lived alone in an apartment complex in Tucson. On August 24, 1988, Dearing and a co-worker shared drinks at Dearing's apartment. By the time the co-worker left, Dearing was severely intoxicated or "passed out." 1 The next afternoon, a friend of Dearing's knocked on her door but heard no answer. The friend returned several more times that night and left notes for Dearing.
On August 26, Dearing's friend returned to the apartment, discovered the door unlocked, and opened it. She saw that the apartment had been ransacked. A maintenance man entered the apartment and discovered Dawn Dearing's body. Another employee called 911 while the maintenance man stayed by the apartment door until police arrived.
Police officers found Dearing's body on her bathroom floor. She had been severely beaten and repeatedly stabbed. Two objects, a curling iron (turned-on) and a knife handle, had been forced into her vagina. The handle fit a butcher knife blade found next to the body. The blade was consistent with some of the victim's wounds.
The murder remained unsolved for five years. Defendant became a suspect in 1993 when Tucson police received notice from 88-CRIME of an anonymous call. 2 Based on that call, Detective Salgado of the Tucson Police Department submitted a Petition to Obtain Evidence of Physical Characteristics to the court. Salgado stated in the petition that 88-CRIME had informed police of a call indicating defendant was the killer and that defendant "had returned home [the night of the murder] with blood on his clothing and personal objects belonging to Dawn Dearing." 3 The caller also told 88-CRIME that defendant had been "involved in the death of a prostitute where he reported his vehicle as being stolen." The petition stated that defendant had been arrested for indecent exposure near the scene of the crime about one week before the murder and that fingerprints of defendant on file could neither confirm nor eliminate him as a suspect.
The court issued an order pursuant to A.R.S. § 13-3905 for the temporary detention of the defendant for the purpose of obtaining blood and hair samples, photographs, and fingerprints. The order required that it "be executed as soon as possible" and that defendant could not be detained for more than three hours. Police served defendant with the order the following day at 6:30 a.m. at his parent's home, where he lived. Police told defendant of the contents of the order, had him read it, and told defendant "he had until 9:30," at which time they would give him a ride home.
Police took defendant to the police station, where he was fingerprinted, and took him to Kino Hospital for a blood sample. They then returned to the police station. However, instead of proceeding to obtain hair samples, the one remaining item authorized in the detention order, the detectives placed defendant in a bugged interview room and began a vigorous and lengthy interrogation unaccompanied by a Miranda warning.
Among other things, police asked defendant whether, at the time of the murder, he had lived in the same apartment complex where he had been arrested for exposing himself (the apartments bordering Dearing's apartment complex). Defendant answered "probably." Police learned, through this interview, where defendant worked at the time of the murder, his work schedule, and that he had been drinking a lot and using cocaine at the time. In answer to the suggestion that defendant used to go next door to the victim's apartment complex, he answered that he "didn't go over there."
At one point, defendant asked, "Do I need a lawyer or something?" Police told him he was not charged with anything and had not been arrested. Later in the interview, police asked defendant if his prints were in Dearing's apartment. He answered, "I certainly hope not." Detective Salgado asked, Defendant answered, "I couldn't."
During the interrogation, the detectives learned that the Department of Public Safety had established a match on a palm print. Detective Wright told defendant his prints had been conclusively matched to the print found on the knife used to stab Dearing. She asked defendant once more if he knew how his prints got there. He answered that he did not. Only then was defendant placed under arrest and informed of his Miranda rights. Defendant immediately invoked his right to counsel.
Only after defendant's arrest and invocation of his right to counsel did the detectives, for the first time, turn to the matter of hair samples. The State argued on appeal that the police questioned defendant in the bugged interview room only because they were waiting for a qualified individual to arrive to collect the hair samples. However, the transcript of the conversation immediately following the arrest proves that the police were following no such procedure:
[Detective KW]: We're going to need samples of head hair--and we'll let you pull your head hair.... And we're gonna need a bunch. Unfortunately, they don't want two or three. Why don't you just yank it out ... We need some from the front too ...
[Detective ES]: And from the other side.... Quite a few more....
[Detective KW]: We need about fifty or sixty, unfortunately for you ... I'm going to step out and Ed's going to have you do the same thing but it's going to be pubic hair....
[Detective ES]: And we want about thirty-seven or thirty-eight of these?
[Detective KW]: About thirty to forty, yeah.
[Detective ES]: Okay ... Just reach down there and start pulling some pubic hairs.... A couple more clumps should do it.
Defendant filed a pretrial motion to suppress in which he argued that his statements made prior to his arrest were taken in violation of his Miranda rights and should therefore be excluded at trial. The trial court denied the motion.
On the morning of the final day of deliberations, the jurors submitted a note to the trial judge which posed the following question: The judge conferred telephonically with the lawyers off the record and outside the defendant's presence. The minutes show that "counsel agree[d] that the Court refer the jury to the jury instructions, specifically number 25." Less than an hour and a half after the communication, the jurors returned with a verdict, finding defendant guilty on all counts. Defendant's later motion for new trial, based on the trial court's allegedly erroneous response to the jury's question, was denied. Because we must order a new trial, we do not decide whether the manner of responding to the jury question was erroneous. This problem is unlikely to recur at retrial. We recite the facts of the jury inquiry because it will be used in our harmless error analysis. See infra, section 3, 186 Ariz. at 246, 921 P.2d 649.
Defendant raised a plethora of issues on appeal. Because we must vacate the convictions and remand for a new trial, we do not discuss any sentencing issues that were raised, and we discuss only those trial issues likely to arise at retrial.
1. Whether defendant's right to a speedy trial was violated.
2. Whether there was sufficient evidence to submit the murder, sexual assault, and burglary charges to the jury.
3. Whether the trial court erred in denying defendant's motion to suppress his statements to the police.
4. Whether the trial court erred in failing to suppress the palm print.
5. Whether the trial court erred in failing to instruct the jury, sua sponte, on second degree murder.
6. Whether the trial court erred in refusing to appoint second counsel for defendant.
7. Whether the trial court erred in allowing testimony at trial regarding jewelry found at defendant's parents' house.
8. Whether the trial court erred in excluding evidence that another suspect failed a polygraph test.
9. Whether the trial court erred in excluding evidence of police suspicions of other individuals.
10. Whether the trial court erred in excluding evidence of the victim's prior sexual history.
We deal first with two of defendant's arguments which, if successful, would be case-dispositive.
1. Was defendant's right to a speedy trial violated?
Defendant contends the trial court should have dismissed the case for alleged speedy trial violations. Essentially, defendant argues that his attorney lacked authority to request a trial setting beyond that otherwise permitted by Rule 8. Defendant contends that it was incumbent on the trial court to conduct its own investigation and ascertain whether defendant agreed with his attorney's requested trial date. The trial court has no such obligation, because "the delays sought by [defendant's] attorney are binding on him and have the effect of waiving his right to a speedy trial even though done without his consent." State v. Zuck, 134 Ariz. 509, 515, 658 P.2d 162, 168 (1982).
The defendant also argues that "the time had already run in [his] case prior to his attorney asking that the time limits be waived." Defendant was arraigned on May 20, 1993. Because he...
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