State v. Thomas, 5228
Citation | 636 P.2d 1214,130 Ariz. 432 |
Decision Date | 06 November 1981 |
Docket Number | No. 5228,5228 |
Parties | , 27 A.L.R.4th 1158 STATE of Arizona, Appellee, v. James Henry THOMAS, Appellant. |
Court | Supreme Court of Arizona |
Robert K. Corbin, Atty. Gen. by William J. Schafer, III, and Robert S. Golden, Asst. Attys. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender by James L. Edgar, Deputy Public Defender, Phoenix, for appellant.
Appellant James Henry Thomas was convicted of sexual abuse and sexual conduct with a minor following a trial by jury. We have jurisdiction of his appeal pursuant to 17A A.R.S. Rules of Supreme Court, rule 47(e)(5).
The pertinent facts are as follows. The victim, a 14-year-old female, related at trial that appellant touched and rubbed her breasts and genital areas while she was at appellant's apartment. For several hours prior to the incident, the victim had been at appellant's apartment performing housecleaning chores for her cousin, appellant's girlfriend and cohabitant. During the commission of the offenses, appellant unzipped his pants but the victim could not recall what occurred next. At trial, the victim described this as a "mental blockage." The only recollection the victim had was when she regained consciousness and observed appellant zipping up his pants. At that time, the victim felt a wet substance on her legs which she believed was semen. Several days later, the incident was reported to police.
Appellant testified and denied any wrongdoing. He expressed the belief that the victim's grandmother concocted the accusations for the purpose of interfering with his relationship with the victim's cousin.
Six arguments are raised on appeal. Because we reverse appellant's conviction and remand for a new trial, we will address only those issues which may arise on retrial. Appellant contends that the trial court committed reversible error by failing to grant appellant's motion for a mistrial. During the opening statement to the jury, the prosecutor, in referring to the memory lapse suffered by the victim, stated:
(Emphasis added).
Appellant maintains the "mental block" comment was improper in that it brought to the jury's attention facts which were never established during the trial. No psychiatric, medical or other expert testimony was introduced to substantiate this statement which implied there had been an expert "determination" that a "mental block" existed. The only evidence presented was the victim's own testimony in which she described her memory loss as a "mental blockage."
"The opening statement should not contain any facts which the prosecutor cannot prove at trial." State v. Bowie, 119 Ariz. 336, 339, 580 P.2d 1190, 1193 (1978). Although we agree with appellant that the prosecutor's comments overstated the actual proof available, the comments did not constitute reversible error. The prosecutor reminded the jury that the opening statement was not evidence. Also, what transpired during the "mental blockage" was not crucial in establishing appellant's guilt. The victim was able to testify that appellant touched her breasts and inserted his finger into her vagina. This testimony was sufficient to establish the elements of the charged offenses. We cannot say that under these circumstances the verdict might have been different had the prosecutor not made the "mental block" remarks.
Appellant also challenges the admissibility of testimony concerning the victim. Over defense counsel's objections, several witnesses acquainted with the victim were allowed to testify that the victim experienced marked personality changes after the incident. They were permitted to express the opinion that "something pretty serious" happened to the victim on the date of the offenses. Appellant maintains the testimony was irrelevant and was an improper attempt to bolster the victim's credibility as a witness.
Initially, we observe that any evidence which substantiates the credibility of a prosecuting witness on the question of guilt is relevant and material. State v. Mosley, 119 Ariz. 393, 401, 581 P.2d 238, 246 (1978). Whether this type of evidence is admissible depends on whether it may come in under a particular rule of evidence. A similar issue was addressed by the Court of Appeals in State v. Peeler, 126 Ariz. 254, 614 P.2d 335 (App.1980). In Peeler, the court held that the trial court did not err when it admitted the opinion of a police officer concerning a sexual assault victim's mental condition, responsiveness and competence after the assault. Such testimony was found admissible under 17A A.R.S. Rules of Evidence, rule 701. The Court of Appeals viewed the officer's testimony as proper since it was rationally based on the officer's perception of the victim's conduct. Id. at 257, 614 P.2d at 338. Although Peeler differs factually from the instant case, we believe it supports the position that such evidence is admissible, and we so hold.
As a separate argument, appellant claims the trial court committed reversible error when it denied appellant's motion for mistrial based upon a portion of the prosecutor's opening statement which referred to the victim as a unique and special child who was very religious and dressed differently than other children her age. Appellant objects to the religious reference and the relevancy of the uniqueness comments. Although we find nothing particularly prejudicial about the uniqueness references, the religious references must undergo closer scrutiny.
Appellant maintains that fundamental error occurred when the trial court permitted various references to the effect that the victim and her grandmother were religious people. The religious references were made during the prosecutor's opening statement, during the direct examination of the victim and during the prosecutor's closing statement.
In his opening statement, the prosecutor made the following comments:
(Emphasis added).
On direct examination, the prosecutor elicited the following testimony:
In his closing argument, the prosecutor stated:
The sole objection made by defense counsel occurred during the direct examination of the victim at which time counsel objected to the materiality of any testimony concerning the victim's grandmother. This objection was overruled.
It is well established that failure to object to evidence, testimony or arguments waives these matters on appeal. See, e.g., State v. Wilson, 113 Ariz. 308, 533 P.2d 235 (1976). Additionally, a party must state distinctly the matter to which he objects and the grounds of his objections. State v. Baca, 102 Ariz. 83, 425 P.2d 108 (1967); 17A A.R.S. Rules of Evidence, rule 103(a)(1). By failing to make a timely, specific objection to the prosecutor's remarks or the victim's testimony, appellant has waived these issues on appeal absent a finding of fundamental error.
Fundamental error has been variously defined by this court as "such error as goes to the foundation of the case or takes from the defendant a right essential to his defense," State v. Gamble, 111 Ariz. 25, 26, 523 P.2d 53, 54 (1974) and as "error of such dimensions that it cannot be said it is possible for a defendant to have had a fair trial." State v. Smith, 114 Ariz. 415, 420, 561 P.2d 739, 744 (1977). Before a finding of fundamental error can be made, it must be apparent that error was committed by the trial court in some aspect of the proceedings. If it is determined that error occurred, the prejudicial nature of the unobjected-to error must be evaluated in light of the entire record. State v. Pulliam, 87 Ariz. 216, 349 P.2d 781 (1966),...
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...P.2d 1992 (1982). Court decided to admit evidence of rape trauma syndrome based on seven social science studies . State v. Thomas , 130 Ariz. 432, 636 P.2d 1214 (1981). In a rape prosecution, the trial judge properly admitted testimony of witnesses acquainted with the victim that the victim......
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...P.2d 1992 (1982). Court decided to admit evidence of rape trauma syndrome based on seven social science studies . State v. Thomas , 130 Ariz. 432, 636 P.2d 1214 (1981). In a rape prosecution, the trial judge properly admitted testimony of witnesses acquainted with the victim that the victim......
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...P.2d 1992 (1982). Court decided to admit evidence of rape trauma syndrome based on seven social science studies . State v. Thomas , 130 Ariz. 432, 636 P.2d 1214 (1981). In a rape prosecution, the trial judge properly admitted testimony of witnesses acquainted with the victim that the victim......