State v. Smith
| Decision Date | 26 July 1979 |
| Docket Number | No. 3988,3988 |
| Citation | 599 P.2d 199,123 Ariz. 243 |
| Parties | STATE of Arizona, Appellee, v. Joseph Clarence SMITH, Jr., Appellant. |
| Court | Arizona Supreme Court |
Robert K. Corbin, Atty. Gen., John A. LaSota, Jr., Former Atty. Gen., William J. Schafer, III, Chief Counsel, Crim. Div., Lynn Hamilton, Asst. Attys. Gen., Phoenix, for appellee.
Schmal & Wollschlager, P. A. by Kenneth J. Murray, Phoenix, for appellant.
Appellant Joseph Clarence Smith, hereinafter referred to as the defendant, appeals his conviction for first degree rape, kidnap and assault with intent to commit murder. Taking jurisdiction pursuant to A.R.S. § 13-4031, we reverse the judgment of the trial court.
In July of 1975, the victim in this case, a fifteen year old girl named Denise, was hitchhiking in the north Phoenix area at about 8 p. m. She was picked up by two men and taken against her will into the desert, where she was undressed, bound, placed upon an abandoned mattress, and raped by both men. The driver of the car then stuffed her blouse into her mouth and held her head while the passenger stabbed her twice in the back and once in the stomach. The ropes were cut from her hands, and the man who had been the passenger in the car flung her into a nearby ditch. After the men drove away, she managed to scream and walk a short distance. She was discovered by some ranch hands, who worked at a nearby stable, and was taken to a hospital, where she remained for two weeks.
Initially, the police investigation in this matter focused upon the passenger in the vehicle, because Denise felt that she could better describe him. In February of 1976, Denise saw a full face photograph of the defendant in the newspaper in connection with several rape-homicides that had occurred in the desert near Phoenix. Although she thought the defendant might have been the driver of the car that had picked her up, she was not positive.
In September of 1976, Denise was shown a photographic lineup that included a profile shot of the defendant. She identified his picture as being the driver of the car. Several days later the defendant was interviewed by the police. He indicated that he had, in fact, been the driver of the car that picked up Denise. He stated, however, that Denise had voluntarily had intercourse with him, and that it was the passenger in the car who had for some reason stabbed her.
The defendant was indicted by a grand jury for the charges that comprise this case. A Dessureault hearing was held at which time the court found that the pretrial identification of the defendant was not unduly suggestive and would not taint a proposed in-court identification. Similarly, at a pretrial hearing, the defendant's statements were found to be voluntary.
At trial defendant's theory of the case was that the victim had identified the wrong man and that the Sheriff's office and the Maricopa County Attorney's office had conspired to frame him. The defendant was convicted by a jury on all three counts.
The following issues are raised by this appeal:
1. Whether the court erred in ruling defendant's statements voluntary and admissible.
2. Whether the court erred in denying defendant's motion to dismiss the indictment and/or remand for redetermination of probable cause.
3. Whether the court erred in limiting the introduction of evidence at the Dessureault hearing.
4. Whether the court erred in excluding all spectators except the press during the victim's testimony in the state's case-in-chief.
5. Whether the court erred in not granting a mistrial when a witness for the state mentioned that the defendant's car was in the police impound lot in relation to another offense.
6. Whether it was error to admit into evidence a photograph of a mattress with blood on it.
7. Whether the court's preclusion of certain undisclosed defense witnesses was in violation of the 6th Amendment to the United States Constitution.
8. Whether the court erred by sentencing the defendant in the absence of one of his two attorneys.
9. Whether the court erred by not continuing the time set for a presentencing hearing.
Defendant contends that his confession was involuntary, having been made in response to certain implied promises by the police. Confessions are prima facie involuntary, and the burden is on the state to prove that the defendant's statements were freely and voluntarily made. State v. Knapp, 114 Ariz. 531, 562 P.2d 704 (1977); Cert. denied, 435 U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 500 (1978); State v. Edwards, 111 Ariz. 357, 529 P.2d 1174 (1974). Moreover, for a confession to be deemed voluntary, it must not be obtained by a direct or an implied promise, however slight. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Although Brady, supra, explicitly states that an implied promise will render a confession involuntary, we simply do not find that any implied promises were made.
While in prison for another offense, the defendant told the news media, his family, and his friends that he wished to talk to the police in reference to the desert-rape-homicides that had occurred in the Phoenix area. The defendant was transported from the Arizona State Prison to the Maricopa County Jail for an initial appearance on the charges that stemmed from the Denise incident. On September 25, 1976, while he was in Phoenix, he was interviewed by four police officers concerning the rape of Denise and the murders of Neva Lee and Sandy Spencer.
At the voluntariness hearing, three of the investigating officers testified that the defendant waived his Miranda rights and that as a prelude to talking with them, demanded several stipulations. Their testimony revealed that the defendant told the officers that in return for his information, he wanted police protection for his parents, his girl friend and her son; a reversal of the seventy-five year sentence that he was serving on a prior conviction; a transfer to a prison outside Arizona; and immunity from prosecution in the murders of Neva Lee and Sandy Spencer.
The officers testified that they told the defendant that it was impossible for them to make any sort of a deal on the murder cases and that the reversal of his rape conviction was out of their hands. He was also told that his family would be given police protection if they needed it and that his girl friend was already out of the state. Last of all, the police told the defendant that an interstate pact with another jail was a feasible idea; but that they could not guarantee any action in this regard.
On appeal, the defendant does not dispute the veracity of the officers' testimony but merely asserts that he was left with implied assurances of protection for his family and the possibility of his transfer to another state to serve his time. We disagree.
The trial court's findings of fact on the voluntary nature of a confession will be upheld by this Court if supported by adequate evidence in the record. State v. Jerousek, 121 Ariz. 420, 590 P.2d 1366 (1979). Finding that the record supports the trial court's ruling on voluntariness, we affirm.
Defendant contends that the trial court erred in denying his motion to dismiss the indictment and/or remand for a redetermination of probable cause. The basis of his argument is that although the grand jury transcript reflects that the applicable statutes were read to the jury, the actual reading of those statutes is not recorded.
The trial court denied defendant's motion as untimely filed and also on the merits. We do not reach the merits of this issue, as we agree with the trial court that the defendant's motion was untimely. Pursuant to 17 A.R.S., Rules of Criminal Procedure, rule 12.9.a, a grand jury proceeding may be challenged only by a motion for a new finding of probable cause. Subsection b. of the same rule states that such a motion may be filed no later than twenty-five days after The grand jury minutes, in this case, were filed on September 28, 1976, and the transcript was filed on October 18, 1976. Because the defendant did not move for a redetermination of probable cause until April 11, 1977, his motion must be denied as untimely.
the transcript and minutes of the grand jury proceeding have been filed. A defendant waives his objections to the grand jury proceeding by failing to comply with the timeliness requirement. See State v. Lopez, 27 Ariz.App. 408, 555 P.2d 667 (1976).
The defendant contends that the trial court erred in limiting the introduction of evidence at the Dessureault hearing. The purpose of a Dessureault hearing is to determine if the circumstances surrounding a pretrial identification of the defendant were unduly suggestive so as to give rise to a very substantial likelihood of irreparable misidentification. See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969), Cert. denied, 397 U.S. 965, 90 S.Ct. 1000, 25 L.Ed.2d 257 (1970).
The defendant's argument at the Dessureault hearing was that the victim identified him, in a photo line-up, because she had previously seen his picture in the newspaper in connection with the investigation of several rape-homicides. The victim testified at the Dessureault hearing that she had shown a newspaper photo of the defendant to her family, because she felt he might be the driver of the car that had picked her up. She stated, however, that the police were not informed of this, because she was not positive that this was the same man.
The evidence that the defendant unsuccessfully sought to admit was the testimony of a newspaper cartoonist and a police detective who, with the aid of the victim, had created likenesses of the Passenger suspect. The defendant also sought to introduce the fact that Denise had made a mistake...
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