State v. Rose

Decision Date22 December 1978
Docket NumberNo. 4393,4393
Citation121 Ariz. 131,589 P.2d 5
PartiesSTATE of Arizona, Appellee, v. Thomas Laverne ROSE, a/k/a Thomas Lawrence Rose, Appellant.
CourtArizona Supreme Court

John A. LaSota, Jr., Atty. Gen., William J. Schafer, III, Chief Counsel, Criminal Division, Diane M. Ramsey, Asst. Attys. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender, Edward C. Voss, Deputy Public Defender, Phoenix, for appellant.

Thomas L. Rose, in pro per.

GORDON, Justice:

Appellant Thomas Laverne Rose, hereinafter referred to as defendant, appeals his conviction for kidnapping and burglary in violation of A.R.S. §§ 13-491 D, 13-301 and 13-302. Taking jurisdiction pursuant to 17A A.R.S., Supreme Court Rules, rule 47(e)5, we affirm the kidnapping conviction and reverse the burglary conviction, remanding for a new trial.

In the early morning hours of December 31, 1976 the home of John and Donna Cullin was entered illegally. The Cullins, their two children and Donna Cullin's sister, Dawn Zimmerman were asleep in the house. Donna Cullin awoke to see a man standing in her bedroom, and watched him remove her husband's shotgun from its rack. John Cullin was also awakened, but knowing the gun to be loaded, lay back down and pretended to be asleep. The intruder then went into the living room where he awakened Dawn Zimmerman and at gun point forced her to accompany him out of the house. Shortly thereafter, John Cullin ran out of the house after the assailant. The suspect pushed Dawn away and fled.

Officer Peterson, who was on duty eight blocks from the Cullin home, received the call that a kidnapping was in progress. While proceeding to the site, he stopped a speeding car driven by the defendant. The officer observed a shotgun lying on the floorboard of the vehicle together with other items of personal property ultimately identified as belonging to the Cullins. The defendant was brought to the Cullin's apartment and identified by Dawn Zimmerman and Donna Cullin as the intruder.

The following issues are raised by this appeal:

1. Whether it was error to admit evidence that the defendant gave false identification to a police officer.

2. Whether the defendant's rights to a speedy trial and to a timely initial appearance and preliminary hearing were violated.

3. Whether the trial court erred in limiting the defendant's right to cross-examine one of the victims regarding certain alleged transactions between the defendant and the victim.

4. Whether the trial court abused its discretion by refusing to strike seven jurors for cause and by failing to declare a mistrial after a prospective juror cited the details of a kidnapping in which he was the victim.

5. Whether the jury's verdict can now be challenged.

6. Whether the defendant was prejudiced by not being given additional medical testing.

7. Whether photographs of the stolen property were properly admitted into evidence.

8. Whether the in-court identifications of the defendant should have been suppressed.

9. Whether the defendant was prejudiced by the unavailability of a defense witness at trial.

EVIDENCE OF OTHER BAD ACTS

Evidence that the defendant had committed certain bad acts, other than those for which he is now on trial, is usually inadmissible. State v. Mitchell, 112 Ariz. 592, 545 P.2d 49 (1976); State v. Tostodo, 111 Ariz. 98, 523 P.2d 795 (1974); State v. Jaramillo, 111 Ariz. 2, 522 P.2d 1079 (1974). It is not proper to base a presumption of guilt on the grounds that having committed one crime, it is likely the defendant would commit another. Dorsey v. State, 25 Ariz. 139, 213 P. 1011 (1923). The relevance of the prior bad act, however, may outweigh any potential prejudice if the illegal conduct does more than discredit the character of the defendant. See State v. Ballesteros, 100 Ariz. 262, 413 P.2d 739 (1966). Other crimes or wrongful acts of the defendant are, therefore, admissible to show the defendant's motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. 17A A.R.S., Rules of Evidence, rule 404(b). In all these situations the bad acts shed some light on the crime charged and not merely on the defendant's criminal propensity.

In the instant case, approximately an hour prior to the arrest of the defendant on the kidnap-burglary charges, and at a location not far from the site of the crimes charged, the defendant was involved in a minor traffic accident. At the accident scene, he identified himself with a Colorado driver's license issued to Andrew James Mathis, Jr. The officer noted nothing unusual about the rear license plate of the car. The same officer subsequently arrested the defendant on the kidnap-burglary charges. At that time, the rear license plate had been masked and the front license plate was in the trunk of the car. Defendant's showing of false identification earlier in the evening was admitted into evidence as a prior bad act. Defendant asserts this was inadmissible. This Court does not agree.

The giving of phony identification coupled with the later hiding of the license plates suggest a purposeful concealment of identity. The defendant was charged with burglary, which requires proof of entry with intent to commit a theft or other felony. A.R.S. § 13-302. The trial court admitted the giving of false identification to an officer because of its bearing on the issue of intent.

Intent is frequently proved by evidence of other criminal acts of the same character, because the reoccurrence of an act controverts a claim that it was done by accident or mistake. See State v. Tisnado, 105 Ariz. 23, 458 P.2d 957 (1969); State v. Boozer, 80 Ariz. 8, 291 P.2d 786 (1955); Hightower v. State, 62 Ariz. 351, 158 P.2d 156 (1945). Intent, however, is simply the state of mind that coexists with the doing of an act, and can also be proved by whatever evidence would otherwise be receivable to show design, knowledge or emotion. See 2 J. Wigmore, Evidence § 242 at 38 (3d ed. 1940).

The evidence in the instant case is not of a prior similar burglary or kidnapping but nonetheless is admissible to show the defendant's intent. Evidence of preparation, 1 or circumstances that complete the story of the crime 2 are recognized as exceptions to the general prohibition of admitting evidence of other bad acts. The evidence in this case could be characterized and properly admitted under either of these exceptions. Moreover, evidence of preparation necessarily discredits a claim that the act was done by accident or mistake and sheds light on the defendant's intent. The evidence was, therefore, also properly admitted under the intent exception of 17A A.R.S., Rules of Evidence, rule 404(b).

To be admissible into evidence, other bad acts must also not be too misleading or prejudicial. United States v. Barrett, 539 F.2d 244 (1st Cir. 1976). These questions are properly left to the trial judge who has wide discretion as to the admissibility of prior acts. State v. Fierro, 107 Ariz. 479, 489 P.2d 713 (1971); United States v. Cochran, 499 F.2d 380 (5th Cir. 1974). We find no abuse of discretion here. The prior illegal act occurred shortly before the crimes charged and was not of such a violent or depraved nature as to outweigh its relevance with prejudice. The defendant's concealment of his identity was pertinent to his preparation and plan of the burglary for which he is charged. As such it reflects his intent to commit

the illegal act and was properly admitted into evidence. RIGHTS TO A SPEEDY TRIAL AND TO A TIMELY INITIAL APPEARANCE AND PRELIMINARY HEARING

This Court finds that the defendant's rights to a speedy trial and to a timely initial appearance and preliminary hearing were not violated.

A defendant's right to a speedy trial is provided for in 17 A.R.S, Rules of Criminal Procedure, rule 8.2. The defendant must be tried within 150 days of his arrest or service of summons and also within 120 days of his initial appearance or within 90 days of his arraignment. A trial within the shorter of the two latter dates is mandated when the defendant is in custody. Meeting the requirement of the longer of the two is sufficient when the defendant is not in custody.

The defendant was arrested on December 31, 1976. He was arraigned on January 1, and released on bail. The charges against him were dismissed without prejudice and later refiled. He was served with a summons on the refiled charges on February 4 and given an initial appearance on February 8. Sixteen days later, on February 24, a preliminary hearing was held, followed by the filing of an information on March 2 and an arraignment on March 4. Defendant was brought to trial on September 7.

When a case is dismissed without prejudice, the speedy trial time limits begin anew, absent a showing of bad faith on the part of the prosecution or prejudice to the accused. See State v. McDonald, 117 Ariz. 180, 571 P.2d 677 (1977); State v. Pogue, 113 Ariz. 478, 557 P.2d 163 (1976); State v. Johnson, 113 Ariz. 506, 557 P.2d 1063 (1976); State ex rel. Berger v. Superior Court, 111 Ariz. 524, 534 P.2d 266 (1975). A dismissal without prejudice to refile the charges would have little meaning if it were not implied that the time limits of Rule 8 would begin anew upon refiling. To hold otherwise would mean that, in some cases, it would be pointless to refile because the time limits would already be close to expiration. State v. Avriett, 25 Ariz.App. 63, 540 P.2d 1282 (1975). The record reveals no bad faith on the part of the prosecution or prejudice to the defendant that would mandate measuring speedy trial from his initial arrest. It is the defendant, not the prosecution, who extended the trial time by an additional 100 days, as will be discussed below. The defendant was in jail during most of this time. His jail time, however, was not related to the charges involved in this case and was, therefore, not a prejudice that resulted from the instant case. The...

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