State v. Roscoe, No. 5831.

• Court: Supreme Court of Arizona
• Writing for the Court: FELDMAN, Justice
• Citation: 1 P.3d 119,145 Ariz. 212
• Decision Date: 28 December 1984
• Docket Number: No. 5831.
• Parties: STATE of Arizona, Appellee, v. Kevin Scott ROSCOE, Appellant.

145 Ariz. 212
1 P.3d 119

STATE of Arizona, Appellee,
v.
Kevin Scott ROSCOE, Appellant

No. 5831.

Supreme Court of Arizona, En Banc.

December 28, 1984.

Reconsideration Denied February 26, 1985.

145 Ariz. 215

Robert K. Corbin, Atty. Gen. by William J. Schafer III, Diane M. Ramsey, Asst. Attys. Gen., Phoenix, for appellee

H. Allen Gerhardt, Jr., Mesa, for appellant.

FELDMAN, Justice

Kevin Scott Roscoe (defendant) was convicted of first degree murder, kidnapping, and two counts of child molesting. A.R.S. §§ 13-1105, 13-1304, and 13-1410. The trial court found the killing to have been committed in an especially cruel, heinous or depraved manner and, finding no mitigating circumstances, sentenced defendant to death for the murder. The court also imposed aggravated, consecutive sentences of twenty-one years in prison for the kidnapping and fourteen years for each count of child molesting. This court has jurisdiction pursuant to A.R.S. § 13-4031.

FACTS

The victim, Laura Dunn, left her home in the early evening of May 13, 1982 to look for a missing cat. When she failed to return, her family commenced a search and her mother found her bicycle along the edge of the road. The following day Laura's nude body was found face down in a remote desert area some twelve miles from her home. She had been sexually molested and then strangled.

Defendant, on probation for an offense committed in California, became a suspect. Under questioning, he told the police that he was familiar with the area, had been in the area on the evening that Laura disappeared, but had been visiting a friend, had then gone to a party, and had no knowledge of the killing. In fact, a sheriff's deputy searching for Laura had come upon defendant and his friends at a party at a nearby lake on the night of the crime. However, defendant's statement with respect to the time of his arrival at the party was not corroborated by his friends, who placed his arrival considerably later than the time he claimed in his statement.

A witness identified defendant's car as similar to one he had seen driving away at

145 Ariz. 216

a high speed from the general area of the crime at about 7:30 p.m. on the night Laura was killed. He stated that the driver was a young white male with long brown hair not unlike the defendant's. In defendant's car police found some household carpeting which was similar in fiber structure to carpet pile found near Laura's body. Also found in defendant's car were hairs from a human head that proved to be similar to those of the victim. The car seat had traces of human blood on it. Scientific analysis of enzymes revealed that semen found in the victim's mouth was consistent with the hypothesis that defendant was the attacker. Pubic hairs found on the front of Laura's blouse were of a type consistent with defendant's pubic hair

In addition to these circumstances linking defendant to the crime, the state adduced evidence of a prior bad act committed by defendant as well as evidence of defendant's identification through use of a trained dog. After forty minutes of deliberation, the jury found defendant guilty as charged.

On appeal, we must decide the following questions:

1. Did the trial judge err in admitting evidence of a prior bad act?

2. Should evidence of dog scenting have been admitted at trial?

3. Were defendant's statements of June 18, 1982 properly admitted at trial?

4. Did reversible error occur in the admission of autopsy photographs?

5. Should a new trial be ordered because the state implied that appellant was responsible for another murder?

6. Should the photographic identification of defendant's car have been suppressed?

7. Was defendant denied effective assistance of counsel at sentencing?

8. Was there sufficient evidence to support two counts of child molesting?

9. Is Arizona's death penalty constitutional?

10. Was the death penalty properly imposed in this case?

Admissibility of Prior Bad Act

Defendant claims that the trial court erred in admitting evidence of a crime he committed in California on March 21, 1981. Defendant had entered a plea of guilty to a charge of assault with a deadly weapon and been sentenced to prison in California. He was released after serving six months and had moved to the Phoenix area shortly before the events which formed the basis for the present case. The state called Cheryl Clark, the victim of the California crime, as a witness in the case at bench. She testified that defendant had sexually attacked her, choked her, and abandoned her in a remote location.

Defendant admitted from the stand that he had committed the crime, but claims that the trial court erred in admitting the evidence over objection. The general rule, of course, is that evidence of prior bad acts is inadmissible to prove the bad character of the perpetrator. State v. Moore, 108 Ariz. 215, 495 P.2d 445 (1972); Rule 404(b), Ariz.R.Evid., 17A A.R.S. The rule provides for certain exceptions:

[such evidence may] be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Id. (Emphasis added.)

To the enumerated exceptions contained in Rule 404(b), Arizona courts have added a further exception that such evidence is admissible to show emotional propensity for sexual aberration. State ex rel. LaSota v. Corcoran, 119 Ariz. 573, 583 P.2d 229 (1978); State v. McFarlin, 110 Ariz. 225, 517 P.2d 87 (1973). In the case at bench the prosecution offered the evidence both to prove emotional propensity and to prove identity by showing modus operandi. However, the trial court admitted the evidence

145 Ariz. 217

only for the latter reason.¹ We review its admission only in that context

The modus operandi exception was discussed by this court in State v. Jackson, 124 Ariz. 202, 603 P.2d 94 (1979). We held there that evidence of a prior bad act is admissible to identify the defendant as the person who committed the crime for which he is being tried. Id. at 204, 603 P.2d at 96; State v. Moore, supra. When the evidence is used for such a purpose, the state must establish first that the defendant actually was the person who committed the prior act. That part of the problem does not confront us in this case because defendant admitted the prior act.

The second requirement of the modus operandi exception is that the prior acts must be "so unusual and distinctive as to be like a signature." McCormick on Evidence § 190, at 560 (3d ed. 1984). While identity in every particular is not required, there must be similarities between the offenses in those important aspects "when normally there could be expected to be found differences." Jackson, 124 Ariz. at 204, 604 P.2d at 96. The similarity requirement is usually more stringent where evidence of a prior bad act is used to prove identity than where such evidence is offered to prove emotional propensity or state of mind. United States v. Myers, 550 F.2d 1036, 1045 (5th Cir.1977).

Thus, the modus operandi exception is applied to sex offenses where an adequate foundation is made showing that the prior offense was not too remote in time, was similar to the offense charged and was committed with a person similar to the prosecuting witness in the case being tried. People v. Goodson, 80 Cal. App.3d 290, 292, 145 Cal. Rptr. 489, 491 (1978); People v. Kelly, 66 Cal.2d 232, 57 Cal. Rptr. 363, 371, 424 P.2d 947, 956 (1967). In the case at bench, the two offenses were not remote; the offense charged was committed within six months after defendant's release from prison for the prior offense. Being cognizant of the extreme danger of prejudice from the admission of this type of testimony, we have carefully reviewed the similarity of the offenses and concluded that there are many significant areas of similarity. Both victims had their clothes removed. The blouses of both were torn open in front. The clothes of both were found near their bodies, the shoes of both standing side-by-side. Both victims were left in remote areas. There was evidence that both victims were gagged, a sock being used on each occasion. Both had their hands tied behind their backs, one with socks and the other with her shoelaces. The knots used were similar. Both victims were choked, one with shoelaces and one with elastic hairbands. There was evidence that both oral and vaginal sex were forced on both. A vehicle was involved in both crimes.

We do not believe that these are similarities which are common to all child molestations. Cf. People v. Cook, 11 Ill. Dec. 792, 53 Ill. App.3d 997, 369 N.E.2d 246 (1977). We think, instead, that there are so

145 Ariz. 218

many similarities between the two offenses that it could fairly be inferred that the known perpetrator of the first offense was probably the same person who committed the second. We believe that the reasonableness of that inference is the true test for admissibility under the modus operandi exception. See United States v. Cavallino, 498 F.2d 1200, 1207 (5th Cir.1974); Bradley v. United States, 433 F.2d 1113, 1120-21 (D.C. Cir.1969).

We acknowledge that there is one marked dissimilarity between the two offenses. Laura Dunn was not quite eight years old at the time she was killed while Cheryl Clark was seventeen at the time of the crime perpetrated upon her. We do not find this dissimilarity to be so significant as to preclude admission, especially in view of evidence that Cheryl Clark appeared thirteen rather than seventeen at the time she was attacked, and that the two girls were similar in hair color and complexion. Absolute identity in every detail cannot be expected. Where an overwhelming number of significant similarities exist, the evidence of the prior act may be admitted; the major dissimilarity, and others here present, go to the weight of the evidence. We hold that the trial court did not err.

The Dog Scent Evidence

Following a pretrial evidentiary hearing to determine...