State v. Smith

• Decision Date: 16 September 1977
• Docket Number: 2962 and 3691,Nos. 2961,s. 2961
• Citation: 569 P.2d 817,116 Ariz. 387
• Parties: STATE of Arizona, Appellee, v. Joseph Clarence SMITH, Jr., Appellant.
• Court: Arizona Supreme Court

Page 817

569 P.2d 817

116 Ariz. 387

STATE of Arizona, Appellee, v. Joseph Clarence SMITH, Jr., Appellant.

Nos. 2961, 2962 and 3691.

Supreme Court of Arizona, In Banc.

Sept. 16, 1977.

Bruce E. Babbitt, Atty. Gen. by William J. Schafer III, and Gregory A. McCarthy, Asst. Attys. Gen., Phoenix, for appellee.

Stephen A. Gerst, Phoenix, for appellant.

HAYS, Justice.

The appellant, Joseph Clarence Smith, Jr., was tried and convicted by a jury on August 9, 1976, of the crime of rape, first degree.

Appellant had previously been convicted on two separate counts of rape, first degree, on December 4, 1973. For the two prior rape convictions, appellant was given five years probation; a condition of the probation was that the appellant serve one year in the Maricopa County Jail. This condition was subsequently modified, and appellant was released from the Maricopa County Jail after serving only six months. After the conviction on the most recent rape charge, the court, on September 7, 1976, entered its order finding that the appellant violated the terms of his probation in the first two rape convictions and revoked the probation under both prior convictions. The court then sentenced appellant to the Arizona State Prison for a period of five years to life for one of the previous rape convictions, ten years to life on the other previous rape conviction, and seventy-five years to life on the most recent rape conviction; all sentences to run consecutively.

Timely notices of appeal from the probation revocation and from the most recent rape conviction were filed, and the two appeals have been consolidated. This is an appeal directly to the Arizona Supreme Court pursuant to A.R.S. § 13-1711.

At the most recent rape trial the victim testified that on February 13, 1975, she was walking in Phoenix toward her home from a friend's home when she was offered a ride. Instead of taking her home, the male driver drove her to the approximate vicinity of 51st Avenue and Pinnacle Peak Road, a rather untraveled and isolated area.

The victim further testified that she did not attempt to jump out of the car because she was about four months pregnant at the time. Upon arriving at this remote area, the victim testified that the driver stopped the car, fondled her breasts, obtained a knife from somewhere near the driver's seat, prodded her ribs and stomach with the knife and told her that he would kill her if she did not shut up and cooperate.

The driver then took off the victim's clothes, tied her hands behind her back, and had sexual intercourse with her in the front seat of the car. The victim also testified that the driver obtained a Pepsi bottle from somewhere within the car, placed it in her vagina, forced her to commit an act of fellatio, and also committed sodomy upon her.

Within hours of the rape, the victim described the vehicle in which she was raped to investigating officers. Unique details of the victim's description of the vehicle were a white stripe on the exterior, fake fur on some parts of the interior, and books and papers in the back seat. Several months later, the victim identified appellant's car as the car in which she had been raped. Other witnesses also identified this same car as the appellant's car.

In a police lineup, the victim identified the appellant as the rapist and she also identified him in court.

Another witness testified that appellant was a student who habitually kept his school books and papers in the back seat of his car, that appellant often carried Pepsi bottles in the back seat of his car, and that, under the driver's seat, he frequently kept a knife similar to the knife with which the victim said she was threatened.

Appellant's counsel filed an "Anders brief," raising as a possible issue the trial court's denial of a motion for change of venue. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we have reviewed the entire record, and we find no error justifying reversal of either the latest conviction or the probation revocations.

With specific reference to the denial of the motion for change of venue, we conclude that the trial court did not err in refusing to allow change of venue for the following reasons:

Defendant subpoenaed officials of various news media to the hearing on the motion for change of venue. The testimony of these witnesses and the documents which they were ordered to bring with them did indicate that appellant had been the subject of several news stories in the few weeks before the hearing and that some of these stories had mentioned that appellant was a suspect in the "desert slayings," which slayings were of considerable concern to the people of Phoenix. However, the appellant failed to show at the change of venue hearing or at the trial itself that these news stories had made it probable that he could not get a fair trial in Phoenix. A defendant seeking a change of venue based on pretrial publicity bears the burden of proof, and he must show that the publicity has been so extensive and so prejudicial as to create the probability that he will be denied a fair trial. State v. McGee, 91 Ariz. 101, 370 P.2d 261, cert. denied, 371 U.S. 844, 9 L.Ed.2d 79, 83 S.Ct. 75 (1962); 17 A.R.S. Rules of Criminal Procedure, rule 10.3(b).

Furthermore, a change of venue is not required unless the defendant can demonstrate that the publicity has reached the jury panel and that jurors both have formed and are unable to lay aside preconceived notions regarding the defendant's guilt. State v. Endreson, 109 Ariz. 117, 506 P.2d 248 (1973).

In the instant case it appears that the news coverage had little effect on the jury panel. Twenty-six persons...