State v. Thomas
| Decision Date | 15 November 1973 |
| Docket Number | No. 2434,2434 |
| Citation | 110 Ariz. 106,515 P.2d 851 |
| Parties | STATE of Arizona, Appellee, v. Carl Anthony THOMAS, Appellant. |
| Court | Arizona Supreme Court |
Ross P. Lee, Maricopa County Public Defender, Roger H. Lichty, Deputy Public Defender, Murray Miller, Philip M. Haggerty, Phoenix, for appellant.
The defendant in this case, Carl Anthony Thomas, appeals from a judgment entered on the trial court's verdict finding him guilty of first degree rape and assault with a deadly weapon and from a sentence of ninety to ninety-nine years for the crime of rape and a concurrent sentence of from five to ten years for the crime of assault.
On February 10, 1971 an information was filed in Maricopa County Superior Court charging the defendant with first degree rape in violation of A.R.S. § 13--611 and assault with a deadly weapon in violation of A.R.S. § 13--249. Defendant pleaded not guilty and waived his right to a trial by jury.
The state's case consisted of the testimony of more than ten witnesses. The first witness for the state was the alleged victim who testified concerning the details of the attack and positively identified the defendant as the attacker. Next the state called as witnesses three other alleged victims of assaults by the defendant. Before each witness testified, defense counsel moved to suppress the testimony on the grounds that the proposed testimony was not related to the allegations contained in the information. The testimony of all the alleged victims was admitted over the defendant's objections. Each of the alleged victims testified as to the details of the assaults and positively identified the defendant as the assailant.
Officer Jeanette Reed also testified on behalf of the state. She testified that the modus operandi revealed in the police reports associated with the defendant's file which had not been admitted into evidence revealed several points of similarity. These points of similarity were the method of entering the house, things that occurred while the assailant was in the house, the act of rape itself, and whether or not there was any tangible physical evidence of the The defendant's case consisted of alibi witnesses for the date on which one of the rapes occurred. Other witnesses testified as to the defendant's habit of being picked up for work about the time the alleged victim named in the information was attacked. The defendant also took the stand in his own behalf and denied raping anyone.
man having been there. On a motion by the defense copies of the reports were given to the defendant. The defendant attempted to cross-examine the witness concerning the reports but the prosecution objected to that line of questioning as being immaterial. The court upheld the objection. The court ruled that the defense could make an offer of proof but that it would not be admitted into evidence.
On rebuttal the state called the defendant's wife who testified against the defendant. The court then found the defendant guilty as charged.
Defendant argues various instances in which he was allegedly denied the right to a fair and impartial trial.
First it is asserted that it was error for the trial court to have admitted the testimony of the three witnesses who were allegedly raped by the defendant.
It is well established that the prosecution in criminal cases may not offer evidence of other unrelated criminal acts of the accused. State v. Hughes, 102 Ariz. 118, 426 P.2d 386 (1967); State v. Little, 87 Ariz. 295, 350 P.2d 756 (1960); State v. Byrd, 62 Ariz. 24, 152 P.2d 669 (1944). However, there are a number of exceptions to this general rule. One exception is that past criminal acts may be admissible to show a distinctive plan or scheme. State v. Finley, 85 Ariz. 327, 338 P.2d 790 (1959). Such evidence is also admissible in order to prove the identity of the assailant. State v. Fierro, 107 Ariz. 479, 489 P.2d 713 (1971).
An examination of the record reveals that the testimony of the witnesses established that a similar modus operandi was used in each assault. The facts indicate that the assailant must have conducted extensive surveillance of his victims before he attacked them. The crimes all took place in the homes of the victims. The geographical location of the crimes was either in the defendant's neighborhood or in areas where he previously resided. The record also shows that the assailant either attempted to or actually succeeded in covering the faces of his victims. In three of the four rapes the assailant concealed his own face. In those cases where the victims had infant children present in the home, the assailant threatened to harm the children unless the mother cooperated. In cases where there were no children present the assailant threatened the victim with a knife. In all the attacks the assailant experienced a pronounced personality change after the rape was committed and expressed concern over the victim's comfort and enjoyment. Finally in every case the witnesses positively identified the defendant as their attacker. Thus the testimony of the three witnesses was clearly admissible in order to establish both a common modus operandi and the identity of the assailant.
Next the defendant contends certain testimony by Officer Reed should not have been admitted.
It is well settled that a defendant may not permit evidence to be introduced without objection and later make its admission grounds for a mistrial. State v. Williams, 107 Ariz. 262, 485 P.2d 832 (1971); State v. Totress, 107 Ariz. 18, 480 P.2d 668 (1971). Here there were timely objections, and the state failed to go forward with the testimony. In this setting we can find no reversible error.
Defendant's next designation of error is that the refusal of the trial court to admit his offer of proof concerning the police reports associated with the defendant into We have previously held that the constitutional right to cross-examine witnesses does not give the defendant a license to ask questions concerning completely irrelevant matters. State v. Shaw, 93 Ariz. 40, 378 P.2d 487 (1963). Our examination of the record indicates that the prosecution offered Officer Reed's opinion for the express purpose of avoiding an examination of all the police reports involving the defendant. In addition the trial judge had previously sustained objections by the defense counsel to the admittance of testimony concerning the reports. Thus while there is broad leeway in cross-examination, the control of cross-examination is left to the sound discretion of the trial judge and will not be disturbed on appeal in the absence of a showing from the record of an abuse of discretion. State v. Altman, 107 Ariz. 93, 482 P.2d 460 (1971). Thus we find no abuse by the court in refusing to allow the defense to confront a witness concerning the police reports.
evidence denied him his constitutional right to confront the witness.
Defendant argues that the exhibits admitted into evidence were based upon hearsay and that he could not cross-examine the persons who made the original statements upon which the exhibits were based. This he contends deprived him of his right to confrontation which amounted to a denial of a fair and impartial presentencing hearing. Two of the exhibits in question were prepared by Officer Reed. One was a graph showing the absence of cat type rapes while defendant was out of the state and the almost total disappearance of such rapes after the defendant's arrest. The other exhibit showed locations where the defendant had resided and their relationship to the cat type rapes and burglaries which had occurred. Defendant also objects to the admission of a police investigation report concerning the rape and mutilation of an elderly woman where the defendant was positively identified as the assailant. In addition the police arrest report detailing the arrest of the defendant for vagrancy and two 'field interrogation cards' are now objected to.
The rules governing the admissibility of evidence at trial including the right to confrontation and hearsay, do not apply at a hearing in aggravation. In the leading case in this area the United States Supreme Court held that the dur process clause of the 14th Amendment does not require that a person who has been convicted after a fair trial be confronted with and permitted to cross-examine witnesses at a hearing in aggravation. Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). In a more recent decision, the United States Supreme Court in Williams v. Okl., 358 U.S. 576, 79 S.Ct. 421, 3...
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