State v. White, CR-86-0389-AP

Decision Date09 February 1989
Docket NumberNo. CR-86-0389-AP,CR-86-0389-AP
Citation770 P.2d 328,160 Ariz. 24
PartiesSTATE of Arizona, Appellee, v. Robert Earl WHITE, Appellant.
CourtArizona Supreme Court

Robert K. Corbin, Atty. Gen. by William J. Schafer III, Joseph T. Maziarz, Asst. Attys. Gen., Phoenix, for appellee.

Patterson & Seplow by Philip A. Seplow, Phoenix, for appellant.

WILLIAM A. HOLOHAN, Justice (Retired).

The defendant, Robert Earl White, was tried and convicted of second degree burglary and sexual assault. He was sentenced to an aggravated term of 20 years' imprisonment on the burglary conviction to run consecutively to a mandatory life sentence on the sexual assault conviction. Thereafter, the defendant filed a timely notice of appeal from the judgments of conviction and the sentences imposed by the trial court. This court has jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13-4031, -4033.

Defendant raises the following issues for consideration:

1. Was there sufficient evidence submitted to the jury to support its finding that the defendant had prior convictions?

2. Did the trial court commit fundamental error by refusing the defendant's request for a live lineup just prior to trial?

3. Did the trial court err in ruling that the probative value of defendant's convictions outweighed their prejudicial effect?

4. Was the jury properly instructed on the burden of proof and was it fundamental error for the court not to instruct, sua sponte, the jury on the presumption of innocence?

5. Was it error for the defendant to be tried by a judge pro tempore?

6. Should the defendant's clothing have been excluded from evidence as fruit of an illegal seizure?

7. Did the trial court abuse its discretion in failing to grant a mistrial based upon alleged prosecutorial misconduct in closing argument?

8. Did the trial court violate A.R.S. § 13-116, prohibiting double punishment, by sentencing the defendant to consecutive sentences for the burglary conviction and the sexual assault conviction?

9. Was the defendant denied equal protection of the law because of his probationary status?

In addition, we review the record for fundamental error.

On March 1, 1986, the victim returned from work at approximately 6:00 p.m. and went to the apartment of her neighbors, Juan and Melody Trujillo, who were taking care of her two-year-old son, Travis. The defendant, an acquaintance and co-worker of Juan Trujillo, was at the Trujillo apartment at the time, drinking beer and watching television.

The Trujillos offered the victim a beer and introduced her to the defendant. During her visit the defendant asked the victim numerous questions about her personal life and whether she would like to "party" with him. She declined his offer. Before she left to go clean-up, the victim also turned down the defendant's offer to "help" her take a shower. Leaving the Trujillo's apartment with her son, the victim went to visit another neighbor. On her way back to her own apartment, however, the victim encountered the defendant and Juan outside the apartments. She spoke with them briefly before entering her own apartment to take a shower. As she was adjusting the shower temperature, she heard a knock at the front door. She turned the water When the defendant completed his assault on the victim, he got dressed, told the victim it was her fault because she had invited him in, and returned to the Trujillos' apartment, adjusting his clothes as he went. He then asked Juan to drive him home. Juan refused and told him the police were on the way. The defendant left the apartment building on foot.

[160 Ariz. 27] off and went to the door. Without opening the door, she asked who was there and the defendant identified himself by name. She told him to go away and that she was in the shower. As she resumed her shower, the defendant appeared in her bathroom, undressed. She grabbed a towel, attempted to cover herself, and ordered him out of the bathroom. Instead, the defendant grabbed her, pulled her from the shower, and began hitting her. The defendant forced the victim to the bathroom floor, repeatedly punched her in the face causing her head to hit the bathtub, and then sexually assaulted her. Hearing the victim's screams, the Trujillos entered her apartment and Juan attempted to open the bathroom door. The door would not open more than six inches but it was enough for Juan to see the defendant punching the victim while holding her head by her hair. He told his wife that the defendant was raping the victim and directed her to call the police. Both Trujillos returned to their apartment and called the police.

When the police arrived both the victim and the Trujillos identified and described the defendant as the assailant. The Trujillos gave the police directions to the defendant's residence. When the police arrived at the defendant's house, an officer knocked on the front door and asked to speak with the defendant whom they could see from the front door. When the defendant saw the officer at his front door, he attempted to flee, but the officers apprehended him in a nearby parking lot. The police seized the defendant's clothing at the police station and analysis of his pants revealed the presence of semen. The police also recovered semen from the victim. 1

Later that evening, the police conducted a photo lineup. The victim identified two of the six photographs, including the defendant's, as possibly being the attacker. At a subsequent Dessureault hearing, 2 the trial judge found the lineup was not unduly suggestive, noted that the two photographs were so similar he could not tell them apart, and refused to require a physical lineup. By the time of the hearing the defendant had altered his appearance by shaving off his mustache and cutting his hair shorter. Juan Trujillo, who had worked with the defendant some 6 to 7 months, testified at the trial and positively identified the defendant as the attacker.

A grand jury indicted the defendant on one count of burglary in the second degree, a class 3 felony, and one count of sexual assault, a class 2 felony. The state later alleged two prior felony convictions, and amended that allegation to include a more recent felony conviction. The state also invoked the provisions of A.R.S. § 13-604.02(B) by alleging that the defendant committed the alleged offenses while he was on probation. 3 After a hearing on the admissibility of defendant's prior convictions for impeachment, the trial judge ruled that the state could impeach the defendant with two of his priors, but he prevented the prosecutor from mentioning that these felony convictions also involved rape or other sexual misconduct. The jury After the trial court conducted an aggravation/mitigation hearing, the court sentenced the defendant to an aggravated term of 20 years for the burglary conviction, and to a consecutive life sentence on the sexual assault charge. The court found that the defendant's prior criminal record for similar offenses and his continuing course of conduct posing a clear danger to society, supported, if not required, the severe sentence in this case. This appeal followed.

                [160 Ariz. 28] convicted the defendant on both counts. 4  After returning a verdict, the jury tried the allegations of prior convictions and found them to be true
                
DEFENDANT'S PRIOR CONVICTIONS

After finding the defendant guilty, the issue of the defendant's prior convictions was submitted to the jury. The state alleged that the defendant had two prior felony convictions, one in Missouri and one in Arizona.

The defendant contends that the trial judge erred in admitting this evidence. He first argues that his prior Missouri conviction should not have been submitted to the jury because the state did not present an actual certified copy of a judgment of conviction. He also argues that the state failed to show that this alleged prior conviction for sexual abuse in the first degree would have been a felony in Arizona. Finally, defendant asserts that neither his Missouri conviction nor his Arizona conviction can be used to enhance his sentence because the state failed to present a factual basis for this prior.

In support of the Missouri allegation, the state presented certified copies of an information charging the defendant with sexual assault in the first degree, the defendant's picture and name card, a plea agreement signed by the defendant, his counsel, and the Missouri prosecutor, docket sheets indicating the agreement was filed in court, and the Missouri court's probation order. The state also included the defendant's fingerprints.

In State v. Nash, 143 Ariz. 392, 694 P.2d 222 (1985), cert. denied, 471 U.S. 1143, 105 S.Ct. 2689, 86 L.Ed.2d 706 (1985), this court held that the state may prove prior convictions by evidence other than a certified judgment of conviction. There we found the state had sufficiently proved the defendant's prior conviction based on out-of-state records containing certified copies of the defendant's photographs and a commitment record stating the defendant's crime and his sentence. Id. at 403, 694 P.2d at 233. Similarly here, the certified copy of the Missouri court's probation order coupled with the other documents, provides sufficient evidence that the defendant has a prior conviction in Missouri. Although the better practice would be that the state provide a certified copy of the judgment of conviction, we will not disturb a trial court's ruling admitting evidence of a defendant's prior convictions absent an abuse of discretion. State v. Hooper, 145 Ariz. 538, 549, 703 P.2d 482, 493 (1985), cert. denied, 474 U.S. 1073, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986).

The defendant next asserts that submitting his Missouri conviction to the jury was error because the state failed to show that this conviction would have been a felony in Arizona. The defendant's trial counsel argued that it was necessary for the state to prove and the trial court to...

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