State v. Williams
| Decision Date | 10 April 1975 |
| Docket Number | No. 2984,2984 |
| Citation | 533 P.2d 1146,111 Ariz. 511 |
| Parties | STATE of Arizona, Appellee, v. James Robert WILLIAMS, Appellant. |
| Court | Arizona Supreme Court |
N. Warner Lee, Atty. Gen., by Thomas A. Jacobs, Asst. Atty. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender, by John Foreman, Deputy Public Defender, Phoenix, for appellant.
James Robert Williams appeals from his conviction and sentence for committing lewd and lascivious acts in violation of A.R.S. § 13--652. He was sentenced to the Arizona State Prison for a term of one to one and a half years.
The defendant and the complaining witness, a young Phoenix woman, had gone to a late-night party. Afterwards, according to the complaining witness, the defendant took her to a north Phoenix location, raped her and made her engage in an act of fellatio. The defendant took the witness stand and claimed that the woman consented to these sexual activities.
The jury acquitted Williams of the rape allegation, but found him guilty of the lewd and lascivious acts charge.
While a number of issues were raised by appellant, we believe that one issue is dispositive of this case: whether attack on the testimony of a defense witness was either proper impeachment by prior inconsistent statements or proper rebuttal of character evidence.
The defendant's mother, Kathryn Williams, testified during direct examination that she had previously seen the complaining witness and the defendant sleeping together. She also described the circumstances of her son's arrest the morning after the incident in question. Among closing inquiry by defense counsel, the following transpired:
'Q Do you consider him (the defendant) to be a normal male, as far as sexual activities go?
'A I would say so.
'Q Do you think that your son ever was or could be a rapist?
The prosecutor claimed that the defense had thus 'opened the door' 1) to evidence that the witness had previously made statements inconsistent with that position or 2) to an inquiry into the defendant's character. Over strenuous objections of defense counsel, the State was permitted to show that Mrs. Williams had allegedly made contrary indications to police as to the sexual activities of her son. The subject matter of the admitted evidence dealt with an alleged rape of the witness' daughter by her son, the defendant, six years previous to the current charge.
On cross-examination of Mrs. Williams, the prosecutor laid the foundation for his attack. To his questioning, she denied telling her son in 1968 to move out of their home or telling a particular police officer three months before trial in January, 1974, that she had heard that her daughter Patricia had been 'involved in some sort of activity' with her son, the defendant. She also denied telling the officer that she once sent Patricia out of state because she 'thought it was the best thing to do.'
The officer took the witness stand to contradict Mrs. Williams' denials:
'A Yes, she did.
* * *
* * *
(emphasis added)
In surrebuttal, the defense attorney put the daughter, Patricia Williams, on the witness stand. She denied having been sent away by her mother. She then answered negatively to defense counsel's questions as to whether she had ever been raped or had sexual intercourse with her brother, the defendant. She also stated that she had no knowledge of her brother as being a rapist.
A former policewoman, Judith Sherman, was then brought in by the prosecution to testify that Patricia Williams had told her that the defendant had raped her in 1968 and that the mother made the defendant move out of the house. In connection with a subsequent criminal proceeding presumably connected with the alleged incident, Mrs. Sherman stated that the Williams women failed to appear and that the mother informed her that Patricia had been sent out of state and she had no intention of coming to court.
Timely objections were made by defense counsel to the testimony of the policeman and Mrs. Sherman. The trial judge gave the following cautionary instruction to the jury:
'The testimony of Mrs. Sherman was admitted solely for the purpose of attempting to discredit the credibility of Mrs. Williams and Patricia Williams and not for the purpose of proving the truth of the matter stated.'
No such limiting instruction was given as to the police officer's testimony.
The State maintains that the challenged evidence, by way of testimony of the policeman and Judith Sherman is admissible on any of several theories. It is claimed that the testimony was proper as either 1) impeaching Mrs. Williams' credibility by showing prior statements inconsistent with her claim that she considered her son was normal sexually and incapable of being a rapist or 2) rebuttal of Mrs. Williams' claim of her son's good character.
As to the State's first theory, impeachment by contradiction upon irrelevant, collateral matter is not permissible. State v. Little, 87 Ariz. 295, 350 P.2d 756 (1960). It is well settled that where a witness denies the making of a prior inconsistent statement and the statement relates to a matter collateral to the issues being tried, the impeaching party is bound by the witness' answer and can't produce extrinsic evidence to contradict the witness. State v. Mangrum, 98 Ariz. 279, 403 P.2d 925 (1965); Crowell v. State, 15 Ariz. 66, 136 Pac. 279 (1913); Udall, Arizona Law of Evidence, § 63.
The matter sought to be impeached concerned an alleged sexual attack on the sister by the defendant six years earlier. The test as to whether testimony offered in contradiction is admissible, and not collateral, is:
'. . . would it be admissible for some purpose other than the mere contradiction, or would the evidence of the fact stated in prior inconsistent statements be admissible.' State v. Mangrum, Supra, 98 Ariz. at 286.
Should evidence of Williams' sexual misconduct in 1968 be admissible on some other grounds than for the contradiction of Mrs. Williams, then the matter would not be collateral and could be used to impeach Mrs. Williams.
We have recently sought to eliminate the confusion that existed as to the issue of whether acts of sexual misconduct should be admitted in evidence in the prosecution of a defendant for a sex offense. State v. McFarlin, 110 Ariz. 225, 517 P.2d 87 (1973). Evidence of prior bad acts is generally inadmissible except where such acts show a plan, scheme or device. State v. McFarlin, Supra; State v. Kelly, 111 Ariz. 181, 526 P.2d 720 (1974). Also,
'(i)n 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.' State v. McFarlin, Supra, 110 Ariz. at 228.
The subject matter of the impeachment in issue concerned an alleged rape in 1968. Its circumstances do not suggest a plan, scheme or device that would be relevant to the rape for which Williams was being tried. Nor is the evidence admissible as showing 'emotional propensity' to commit such acts under State v. McFarlin, Supra, since the 1968 act to which reference was made focused on rape and did not involve sodomy, child molesting, or lewd and...
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