State v. Treadaway

• Decision Date: 11 July 1977
• Docket Number: No. 3116,3116
• Citation: State v. Treadaway, 116 Ariz. 163, 568 P.2d 1061 (Ariz. 1977)
• Parties: STATE of Arizona, Appellee, v. Jonathan Charles TREADAWAY, Jr., Appellant.
• Court: Arizona Supreme Court

Page 1061

568 P.2d 1061

116 Ariz. 163

STATE of Arizona, Appellee, v.Jonathan Charles TREADAWAY, Jr., Appellant.

No. 3116.

Supreme Court of Arizona, In Banc.

July 11, 1977.

Bruce E. Babbitt, Atty. Gen., William J. Schafer, III, Chief Counsel, Crim. Div., Stanley L. Patchell, John Pressley Todd, Asst. Attys.Gen., Grove M. Callison, former Asst. Atty. Gen., Phoenix, for appellee.

Lewis & Roca by John P. Frank, Mary M. Schroeder, Flynn, Kimerer, Thinnes, Derrick & Lindholm by John J. Flynn, Clark L. Derrick, Phoenix, for appellant.

GORDON, Justice:

Appellant, Jonathan Charles Treadaway, Jr., was convicted of sodomy in violation of A.R.S. § 13-651 and of first degree murder in violation of A.R.S. §§ 13-451,13-452, and13-453.After a sentencing hearing pursuant to A.R.S. § 13-454, appellant was sentenced to death and this appeal followed.We have jurisdiction under A.R.S. § 13-1711.The judgment of the trial court is reversed.

The facts necessary for this review are as follows: On the morning of August 30, 1974 the victim, a six-year-old boy, was found dead in his waterbed by his mother in the early morning hours.Sometime during the previous night entry had been made through the living room window but nothing had been taken from the house.An autopsy disclosed the cause of death was asphyxia.The autopsy also revealed evidence indicating the victim had been sodomized.

The State's case consisted of circumstantial evidence.The only usable prints lifted at the scene, two palm prints taken from the outside of the dead boy's locked bedroom window, were established as those of appellant.Pubic hairs found in the pubic and anal area of the victim's body were compared with samples of pubic hair obtained from appellant.The samples taken from appellant were similar to those recovered from the body of the victim in that both shared the same unusual textural features.(A more sophisticated test, neutron activation analysis, could not be done, apparently because of problems with sample size.)The State also offered, for the purpose of showing emotional propensity, evidence that three years previously appellant had taken a 13 year-old-boy by the arm, undressed him and committed fellatio and anilingus upon him.

Appellant denied the charges against him.He admitted that he had looked into the windows of houses in the general neighborhood but said that he didn't remember the victim's house.He said he had not been at the victim's house on the night in question or anytime shortly before.This was controverted by testimony of the victim's mother that she had washed the front windows of the house the day before the murder, raising the inference that the palm prints found on the morning after the murder were fresh.

After the jury returned a verdict of guilty, the court held a sentencing hearing pursuant to A.R.S. § 13-454.The court found the existence of one of the statutorily prescribed aggravating circumstances the "defendant did commit the offense in an especially heinous, cruel, or depraved manner," and the absence of any of the statutorily prescribed mitigating circumstances.Based on these findings the court sentenced appellant to death.The Court also sentenced appellant to a term of not less than twenty nor more than life imprisonment for the sodomy conviction.Notice of appeal was filed.

Thereafter, appellant's family retained a different attorney who made a motion to vacate judgment challenging the competence of the former counsel and his right to waive certain of his client's constitutional rights.The motion was denied; a notice of appeal was filed and consolidated with the appeal from judgment and sentence.

The following issues were raised by appellant:

I.Did the trial court err by admitting evidence of appellant's prior bad acts?

II.Did the trial court err by refusing to allow the defense psychiatrist to testify about certain of appellant's character traits?

III.Did the trial court err in its treatment of the polygraph evidence?

IV.Was there sufficient evidence to support the verdict?

V.Was the death sentence improperly imposed?

VI.Was appellant's post-trial motion regarding competence of counsel erroneously denied?

I

Appellant argues that evidence of the acts which he committed on a 13-year-old boy three years before the crime charged does not fall within the emotional propensity exception to the exclusionary rule that evidence of other crimes is not admissible, and he argues admission of this evidence constitutes reversible error.¹We agree that its admission here requires reversal.

In dealing with this issue we have said:

"The rationale in the exclusionary rule concerning evidence of other bad acts or crimes is the prejudice to the accused and the questionable relevancy of such evidence to the offense charged.The exceptions to the exclusionary rule are generally based on the strong relevancy of the evidence offered even though prejudicial to the defendant.II Wigmore on Evidence, 3rd Ed. § 216."State v. McFarlin, 110 Ariz. 225, 228, 517 P.2d 87, 90(1973).

We adopted the emotional propensity exception stating:

"In those instances in which the offense charged involves the element of abnormal sex acts such as sodomy, child molesting, lewd and lascivious, etc., there is sufficient basis to accept proof of similar acts near in time to the offense charged as evidence of the accused's propensity to commit such perverted acts."Id.

We found the evidence of other acts in McFarlin admissible because they met the requirements of sexual aberration, similarity and nearness in time.

Appellant argues the previous incident was neither similar nor near in time and the great weight of case law supports his view.²The State, of course, argues the opposite and cites only one case actually on point for each.Gilman v. State, 258 Ind. 556, 282 N.E.2d 816(1972)(similar);Kerlin v. State, 255 Ind. 420, 265 N.E.2d 22(1970)(near in time).Both sides attempt to bolster their arguments with citations to opinions which often involve different exceptions (usually the common scheme, plan or design exception) or lack reasoned analysis (e. g., the State's two citations for similarity and nearness in time are both from the same court and the summary and cursory conclusions arrived at therein are unpersuasive).As we cautioned in McFarlin, the emotional propensity exception has been extended to questionable lengths and its application to all sex crimes has been sharply criticized.

The facts in this case are much more difficult than those in McFarlin.Remoteness in time is clearly a problem because a three year time lapse may leave the prior incident without predictive value.Similarity is also a problem because the acts themselves are different and may well involve different psychological and emotional dispositions.These factors are significant, particularly in light of the weight of case law, supra, and the lack of expert testimony relating to its relevancy, infra.

The admissibility of the prior act depends initially upon its relevancy, which involves complicated questions of sexual deviancy in a sophisticated area of medical and scientific knowledge.This Court is not prepared to resolve such questions in the absence of such expert knowledge.Cf.Alires v. Southern Pacific Co., 93 Ariz. 97, 378 P.2d 913(1963);Carrizoza v. Zahn, 21 Ariz.App. 94, 515 P.2d 1192(1973).We are particularly reluctant when the evidence is of such a highly prejudicial nature that some jurists and commentators regard it as nearly dispositive, making the guilty verdict almost a formality.E. g., Gilman v. State, 258 Ind. 556, 282 N.E.2d 816(1972)(dissenting opinion);Gregg, Other Acts of Sexual Misbehavior and Perversion as Evidence in Prosecutions for Sexual Offenses, 6 Ariz.L.Rev. 212(1965).

In addition, statistical evidence generally indicates that, in relation to other classes of criminal offenses, sexual offenses as a group have a low rate of recidivism although a few sex offenses have a somewhat higher rate of recidivism than that of sex offenses in general.Gregg, supra, citing Best, Crime and the Criminal Law in the United States (1930); Report of Mayor's Special Committee for the Study of Sex Offenses(New York City1941); State Department of Mental Hygiene, Report of Study of 102 Sex Offenders at Sing Sing Prison (New York State1950); Ludwig, Control of the Sex Criminal, 25 St. John's L.Rev. (1951);Tappan, Some Myths About the Sex Offender, 19 Fed.Prob. 7(1955).This information would indicate that evidence of prior similar acts may be less probative for sex crimes than for other kinds of crimes, and it supports the criticism of this exception.

Another problem with the emotional propensity exception has been its inconsistent application in trials involving sex offenses in Arizona.See, e. g., the discussion in State v. McFarlin, supra, of previous decisions; and see those earlier decisions.

Although we are reluctant to overturn the trial court, in light of the foregoing discussion we must hold the admission of this prior bad act in a trial involving this crime constitutes reversible error unless and until there is reliable expert medical testimony that such a prior act three years earlier tends to show a continuing emotional propensity to commit the act charged.Because there was no such expert testimony here, reversal is required.

Appellant argues further that the trial court erred in permitting the State to cross-examine him about the circumstances surrounding two burglaries.Because of the way in which this issue arose, we believe the question is unlikely to recur on retrial and we need not reach this issue.

II

The defendant next contends that it was error for the trial court to sustain the state's objections to portions of the defense psychiatrist's testimony.The defense called Maier Tuchler, M.D., a local psychiatrist who had examined appellant.Dr. Tuchler chronicled his professional...