[85 Ariz. 329] Martin S. Rogers, Tucson, for appellant.
Robert Morrison, Atty. Gen., and James H. Green, Jr., Asst. Atty. Gen.; Raul H. Castro, County Atty., Pima County and Marvin S. Cohen, Deputy County Atty., Tucson, for appellee.
The defendant-appellant, Claude Richard Finley, age 21 years, was convicted by a jury, composed of ten men and two women, of forcibly raping a 44-year-old widow, the mother of two grown children. We shall herein refer to Mrs. K_____ as the prosecutrix or victim. The court sentenced defendant to serve not less than eight nor more than 16 years in the penitentiary. He appeals from the judgment of conviction and the order denying his motion for a new trial.
While there is some sharp conflict in the evidence, the material testimony--stated in a light most favorable to sustaining the judgment--is in substance this: The prosecutrix, at about 10:30 p. m. on November 1, 1957, was driving west on Speedway in Tucson when, at an intersection stop, the defendant and his friend 'Jim' Thomas (both of whom were perfect strangers to her) pulled up even with her car and asked if she would go for a drink. As she kept on driving they would see-saw in and catch up with her, during which time further exchanges occurred. By hindsight these incidents were probably subject to misinterpretation by these 'prowling' young men. In any event they followed her when she turned into the alleyway back of her home and there again asked her to go out with them for a drink, which she flatly refused to do. After talking to them for a few minutes she got out of her car and started into her home when they took hold of her arms and pulled her into their car. While she resisted their forcing her into the car, she made no outcry and apparently at that time was not aware of her peril for she considered 'they were young guys just clowning around.' Defendant drove off with her in the front seat between them. Their first stop was at the Buckaroo tavern on the Benson highway where 'Jim', at a wink of the eye from defendant, left the car ostensibly to buy a bottle of liquor and that was the last seen of him that night. The defendant immediately drove off with the prosecutrix down a side road some distance and stopped. He then bluntly stated that he was going to have intercourse with her whether or not. She refused to assent to such an act.
The prosecutrix' version is that she was required to disrobe and submit to his advances by brute force and that she resisted at all times to the utmost of her ability. [85 Ariz. 330] We shall not recite all the lurid details, but suffice it to say that according to her testimony he forced her into the back seat of the car where he accomplished three separate acts of sexual intercourse; and during and course of these outrages he also performed unnatural sex acts involving what amounts to sodomy and fallatio as well as trying to force his fist into her vagina. It was further shown that he slapped her repeatedly and pulled her hair. She managed to scratch his face, leaving imprints that are clearly visible from photographs in evidence. The defendant took the witness stand and admitted having twice had sexual intercourse with prosecutrix, at this time and place, but asserted ti was accomplished with her full acquiescence and consent. He told two different stories relative to what caused the scratches on his face.
In taking the prosecutrix home the defendant stopped at an all night service station to get water for a leaky radiator. Being fearful of her life she was unable to devise a safe means of alerting the attendant as to her plight and have him call the police. Upon arriving back at the place in the alley where he had picked her up, she was let out of the car.
Another car was parked just ahead of them and in it were four young people--the neighbor Drake sisters and their male escorts--the prosecutrix had a slight acquaintance with one of the girls. The following questions and answers give the sequence of what occurred:
'Q. And what happened then? A. I knocked on the window and by that time I was just sort of letting down and I was just shaking all over. I asked them if they would help me. I was hoping that they would realize that I needed help, that I wasn't trying to run them off or something, because I guess I kind of surprised them just coming up in the dark like that, and knocking on their window and in trying to get their attention.
By that time I was so rattled that I forgot the number that I was trying to memorize and so I asked them if they would help me. First I asked them to follow that car, and, of course, they didn't know why or anything. Then I told them, 'Well, he had taken me out in the desert and I wanted to call the police.' So they came out of the car then and took me in their house and one of them called the police number and then I talked to the police.'
In a matter of a very few minutes, at about 2:30 or 2:45 a. m., a city patrolman by the name of George W. Martin met the prosecutrix, as per appointment, at the corner of Hawthorne and Campbell; she had been accompanied to this corner by Robert Megaw, one of the escorts of the Drake sisters. The officer testified:
[85 Ariz. 331] 'Q. What was the condition of these people that you could see? A. Well, the lady was crying very heavily and I guess the boy was more or less trying to hold her up or something.
'Q. What happened then? A. Well, I asked her what her trouble was and she started telling me, so since it was kind of cold out I told her to get in the back seat of the car so we could talk better and so I told the other fellow to wait outside. Then she proceeded telling me what happened.'
Through good detective work the police later that day found defendant's car and this gave them a lead by which they apprehended defendant that evening as he came from work. At a lineup held at the police station shortly thereafter the prosecutrix without hesitation pointed out defendant as the man who had raped her.
In rape cases it has long been recognized by the courts that the victim will usually, at the first opportunity, report the incident. In the early case of Trimble v. Territory, 8 Ariz. 273, 71 P. 932, this court stated:
'* * *. The natural instinct of a female thus outraged and injured prompts her to disclose the occurrence at the earliest opportunity to some relative or friend who has interest in her welfare; and the absence of such a disclosure tends to discredit her as a witness, and may raise an inference against the truth of the charge. To avoid such discredit and inference, it is always competent for the prosecution to show, as a part of its case, that complaint was made recently after the commission of the outrage, and this fact is treated as a circumstance corroborative of the complaint's testimony. * * *'
However, whether the details of the victim's story may be testified to by the party to whom it was told depends upon whether it can properly be considered as a part of what is commonly referred to as the res gestae. Keefe v. State, 50 Ariz. 293, 297, 72 P.2d 425; Wigmore on Evidence, 3rd Ed., sec. 1767; McCormick on Evidence, Topic 5, sec. 274.
At the trial the court--on the theory that it was a part of the res gestae--permitted officer Martin to testify in detail as to what the victim told him when he first met her at the corner of Hawthorne and Campbell. The defendant strenuously objected, contending that this testimony was hearsay hence wholly inadmissible. This adverse ruling is the basis for one of the assignments of error. The facts have already been stated. Was prosecutrix' statement to the officer a 'spontaneous utterance'? If it was, the trial court's ruling was correct, otherwise not.
The res gestae rule, its origin, purpose and operation, has been sufficiently expounded[85 Ariz. 332] by this court in at least four well-reasoned decisions, viz.: Trimble v. Territory, supra; Soto v. Teritory, 12 Ariz. 36, 94 P. 1104; Keefe v. State, supra, and State v. McLain, 74 Ariz. 132, 245 P.2d 278.
We quote an excerpt from an Annotation on Sex Crimes--Res Gestae--Time Element, that succinctly summarizes the rule:
'Res gestae may broadly be defined as matter incidental to the main fact and explanatory thereof and may include acts and words which are so closely connected therewith as to constitute a part of the transaction; and such acts and words must be spontaneous and so related to the occurrence in question as reasonably to appear to be evoked and prompted thereby. Stated differently, the term 'res gestae' comprehends a situation which presents a startling or unusual occurrence sufficient to produce a spontaneous and instinctive reaction, during which interval certain statements are made under such circumstances as to show lack of forethought or deliberate design in the formulation of content. Statements which conform to these requirements and which in some way elucidate, qualify, or characterize the act in question are admissible in evidence as a distinct and separate exception to the hearsay rule. * * *' 19 A.L.R. 2d page 582.
It is clear from our previous pronouncements that: (1) it is impossible to formulate a definition of res gestae which will serve for all cases; (2) no rule may be formulated as to the limit of time within which the exciting cause should be held to have been dissipated so as to render such statement inadmissible; (3) a want of suitable opportunity, or fear, may sometimes excuse or justify a delay in making the disclosure; and (4), each case must depend upon its own facts and much must be left to the sound discretion of the trial court.
When we apply the well-established legal principles to the case at bar, it appears that the victim's primary concern both at the service station and with the young couples in the parked car near her home was to have them get in touch with the police as quickly as possible. It was upon the officers of the law that she relied and, just as soon as the policeman came on the scene, then, for the first time, she told her story. While the time is not fixed too definitely it would appear that not more than thirty minutes elapsed between the time she got out of defendant's car and the arrival of officer Martin. The condition of the victim at the time of the particular utterance is a very important factor. Here the evidence shows that when the officer arrived the prosecutrix was excited, disheveled, and crying heavily, and her physical condition was such that the escort, Bob [85 Ariz. 333] Megaw, was partially holding her up. We believe these facts bring her statement within the realm of a 'spontaneous utterance', hence we cannot say that the learned trial court abused its discretion, or erred, in permitting the officer to relate to the jury the victim's statements.
The most serious question raised on this appeal is whether the trial court committed reversible error in admitting the testimony of Miss W_____, a seventeen-year-old girl who, over vigorous objection of defense counsel, was permitted to testify that defendant--just five days prior to his alleged rape of the prosecutrix in the instant case--forcibly raped her in a parked automobile on a lot at the rear of her parents' home in California after luring her there on a pretext of showing her his 'new car'.
The general rule is that proof of the commission of another crime cannot ordinarily be put in evidence as proof of the commission of the crime charged, Vigil v. State, 33 Ariz. 51, 262 P. 14; 22 C.J.S. Criminal Law § 688; but one of the well-recognized exceptions to this general rule is where the evidence of the commission of a similar offense tends to show a system, plan or scheme embracing two or more
crimes so related to each other that the proof of one tends to establish the other, then such evidence becomes relevant and admissible.
There can be no dispute as to the general rule and its exceptions--the real difficulty comes in applying them to the facts of a particular case. In the reported decisions it must be conceded there is a conflict as to just what facts come within the realm of constituting a scheme, plan or design. The Supreme Court of Minnesota, in the case of State v. De Pauw, 246 Minn. 91, 74 N.W.2d 297, 300, has wisely stated:
'The separate and distinct acts to be admissible must have a reasonably close relation in scheme and pattern and in time to the act charged in order to be admissible under the common plan or scheme exception. The determination, however, of whether independent criminal acts are so closely connected with the crime charged as to be admissible is in the first instance a matter resting largely within the discretion of the trial court, and this court will not reverse unless there is a clear abuse of discretion. * * *' (Emphasis supplied.)
By analogy this court recognized the same principle when in the homicide case of State v. Wallace, 83 Ariz. 220, 319 P.2d 529, 531, we said:
'It is also generally recognized that no hard and fast rule of exclusion of evidence may be laid down. A reasonable discretion should be allowed the trial court in determining the relevancy and admissibility of evidence. * * *'
[85 Ariz. 334] In several cases involving various types of sex crimes we have sustained the admission of evidence of other offenses as coming within this exception. See Taylor v. State, 55 Ariz. 13, 97 P.2d 543; State v. Martinez, 67 Ariz. 389, 198 P.2d 115; State v. McDaniel, 80 Ariz. 381, 298 P.2d 798.
Do the facts in the instant case, i. e., the prior rape of another female, bring into play the exception to the rule? For the reasons herein stated we believe that it does. Admittedly the precise problem here presented has not heretofore been passed upon by this court.
We believe the two occurrences were characterized by the manifestation of the same bent of mind and sinister design or practice on the part of the defendant. His design or course of conduct was remarkably similar. Both rapes were committed late at night in parked cars, the victims having either been lured or forced therein by defendant; in both instances the assailant bluntly announced his lustful intentions to have sexual relations with them regardless of their wishes or resistance; this was immediately followed by ripping off their undergarments and proceeding with brute force and violence such as slapping, twisting arms, etc., to accomplish his intentions. In addition to having been raped, both victims complained of severe beatings at the hands of defendant; each one compared his brutal actions with that of a 'madman'. Both of them testified that the defendant placed them in peril of their lives if they would not sumit to his carnal desires. Probably the most striking similarity in both incidents was the change in personality and facial expression when the victims resisted his advances. Both women testified as to this Dr. Jekyll-Mr. Hyde transformation. They described him as being normal in all outward appearances until they refused to submit--then suddenly his facial expression became frightening and he acted fiendishly or as a 'madman'.
The rationale underlying the admissibility of evidence of prior acts of rape is partially for the purpose of showing defendant's criminal desires and lustful propensity to commit such a crime. The courts appear to be more liberal in admitting, as proof of his guilt, evidence ...