*1
STATE JONES, Appellant.
Richard Lewis 93-0377,
Nos. 1 CA-CR CA-CR 93-0388. Arizona, Appeals
Court 1, Department A.
Division
Nov. 1996.
Petition for Review Denied and Cross
Petition for Review Granted
June 1997.
536 *3 AND PROCEDURAL
FACTUAL1
BACKGROUND A. No. CR 92-08919 Cause sexually abused his eldest Defendant CJ, a ten- times over daughter, at various year years when period. CJ was old her. On October defendant last assaulted after the last approximately two weeks RJ, CJ, assault, 13-year-old brother her reported the 11-year-old sister SJ abuse *4 police. local to defen- provided police with details of assaults, acts all of which included of
dant’s penile penetration as as of CJ’s oral sex well investigation vagina police anus. The and/or charging with to an defendant led indictment eight counts of sexual assault. 1993, shortly jury February after the CJ, process began, RJ and SJ told
selection allegations prosecutor that were They they punish had to false. said lied having an extra-marital defendant for had relationship, purpose getting for of and of him out the house. in ease to trial March 1993. proceeded CJ, RJ, appear and SJ to on the
When failed so, day despite subpoena of a to do first Woods, Attorney Grant General Paul J. pursuant to a civil they were arrested arrest McMurdie, Counsel, Appeals Chief Criminal They placed in the Mar- warrant. were then Ohanesian, Section and M. Assis- Consuelo juvenile icopa County detention center where General, Phoenix, Attorney Appellee. tant for week, they approximately remained for one testifying. until finished Freedman, Scottsdale, Burt for Sandra Appellant. original allegations CJ testified true, fact molest- defendant her, siblings had lied and that she and her ed
WEISBERG, Judge. February against testifying avoid defen- (“defendant”) appeals Richard Lewis Jones with RJ’s was consistent dant. (i) eight his convictions and sentences CJ’s, allega- original but SJ testified that the assault, felony a 2 and counts of sexual class February story were false and the tions (ii) children, dangerous against crime true. following a probation of his convic- revocation charges. on endangerment, a 6 A convicted defendant all tion on count of class one reasons, aggravat- felony. following we affirm The court sentenced defendant For convictions, ed, 25-year prison on all of of consecutive terms six defendant’s reverse two convictions, with eight Defendant was credited probation and affirm his rev- counts. days presentence incarceration. one modification. 223 ocation with Atwood, light a 1. The facts are viewed in most favorable denied, (1992), sustaining judgment U.S. 113 S.Ct. with all reasonable cert. (1993). against 122 L.Ed.2d inferences resolved the defendant. examining B. Cause No. CR 92-02303 physician CJ to her dur- ing the course of her treatment. 92-02303, In cause number CR F. court properly per- Whether trial charged attempted with flight from lawa police testify mitted a officer to as to enforcement vehicle in violation Ariz.Rev. the dates of the assaults based on (“A.R.S.”) 28-622.01, Ann. Stat. section des- provided by information CJ and re- ignated felony pursuant as class 6 to Ariz. police report; corded in a 13-1001(0(5). Rev.Stat. Ann. section Defen- mandatory G. Whether the conseсu- plea agreement dant entered on June sentencing tive provisions forth at set pled guilty felony in which he endan- A.R.S. sections 13-604 and 13-604.01 germent 13-1201, under A.R.S. section separation powers violate the doc- felony. class 6 proba- He received a term of trine embodied Article 3 of the Ari- Immediately sentencing tion. after in cause Constitution; 92-08919, zona number CR the court probation revoked his con- because those eight H. Whether defendant’s consecutive imposed 1.5-year victions. The court sen- 25-year offend the Arizona sentences endangerment tence on the charge to be prohibitions and federal constitutional consecutively served to the sentences im- punishment. cruel unusual posed CR-92-08919. Defendant was cred- during I. Whether the detention trial of *5 days presentenee ited with 365 of incarcera- J, J, C R and SJ denied a fair defendant tion. trial. timely Defendant filed a of appeal notice J. Whether the trial court in nam- erred both cases. This court consolidated defen- ing underlying revoking the offense in appeals by dant’s an order dated October probation defendant’s in cause no. CR jurisdiction adjudicate 1993. We have to the 92-02303. Const, 9; appeal. VI, § Ariz. art. A.R.S. 12-120.21(A)(1),13-4031,13^033(1). §§ DISCUSSION A. ISSUES PRESENTED begin We with an issue raised following We address the issues:2 by defendant. Our of record review the re A. Whether defendant’s convictions are that veals there was insufficient to evidence evidence; supported by substantial support eight two of defendant’s convictions. properly Insufficiency B. Whether the trial court ad- of the is fundamental evidence Jannamon, prior mitted evidence of defendant’s error. State v. acts; 439-0, (App.1991).
bad 819 P.2d 1025-26 C. properly Whether the trial court de- charged The indictment defendant with the
nied defendant’s motion for new trial following of against counts sexual assault CJ: on prosecutor’s unsupported based the I, contact; III, II, intercourse; oral oral statement, closing argument, that contact; IV, contact; V, contact; oral oral put defendant’s wife “wouldn’t it past contact; VI, VII, intercourse; VIII, oral things her husband to do those to intercourse; totalling oral five counts of con- daughter”; tact and three counts of intercourse. The count, guilty found of each D. properly per- Whether the trial court specifying the nature of the sexual assault on examining physician CJ’s mitted the verdict form. testify that told him defendant had her; sex with CJ, however, testified to seven as- properly E. Whether the trial court ad- saults: three acts of oral contact and four mitted the contents of a note written counts of There intercourse. was evi- through ap- B J. 2. Defendant raised issues H on A, peal. sponte We have considered sua I issues of probative that value the determined eighth from source. of an assault
dence outweighed prejudicial value. its evidence that of defen- conclude one We therefore must convictions for oral contact be dant’s argues acts prior that were Defendant for insufficient evidence. reversed solely propensity show his admitted charged; that such evi- commit the crimes Additionally, of con one defendant’s absence of inadmissible dence was by victions sexual assault oral contact testimony expert under foundational medical supported only evidence sexual inter 163, 568 Treadaway, 116 Ariz. course, than contact. We there rather oral (1977); impact of prejudicial of defendant’s fore conclude another value; outweighed probative its the evidence for oral contact must be reversed convictions of the evidence re- and that admission for insufficient evidence.3 versible error. not, however, reach the issue We need in the indictment The oral contact counts under prior acts were admissible whether in the follow- alleged to have occurred exceptions the enumerated set forth Rule I, ing periods: on or about Octo- time Count 404(b), rejeсt argu because we defendant’s IV, 1992; III March ber Counts between Garner, 116 ment on the basis of State v. 1992; VI, V on or and June and Counts (1977). 1341, 1345 Ariz. July supported by I is about 1992. Count Gamer, Supreme our Court held “[i]n testimony that an act fellatio oc- CJ’s involving committed case a sex offense September curred in or October 1992. child, similar against prior evidence supported by III is Count CJ’s same child sex offense committed that an act of fellatio occurred between lewd is admissible show defendant’s supported March and June 1992. Count V disposition toward the or unnatural attitude that a second act of fellatio added.) particular (Emphasis victim.” September occurred in or October 1992.4 *6 state, therefore, rely on an did not need to Thus, supported by the the counts not evi- 404(b) exception particular Rule to since this dence are Counts IV and VI. type pro admissible to show of evidence is Id.; Rojas, pensity. B. 1037, 1043(App.1993). P.2d 868 Although eight the sexual assaults Moreover, Treadaway is hearing charged in took place the indictment where, here, prior unnecessary as the bad to the state moved limine admit evidence nature involve the acts are similar in that defendant had committed sexual as testimony not “Expert same is need victim. against saults CJ from the she was five time ed, ... is not issue when and remoteness years grounded old. The state its motion in incessantly occur over a similar molestations 404(b) the Rule of Arizona Rules of Evidence period long against of time the same victim.” (the “Rules”), asserting that the evidence Rojas, Ariz. P.2d at 1043. at 868 plan, design, Here, showed a common scheme or the same defendant’s assaults followed opportunity, preparation, identity, corrobora pattern years, of over course several conduct, continuing or of or only tion course on which his victim. The case complete relies, necessary story. to the The trial Hopkins, Ariz. inapposite (App.1993), court ruled that the evidence was admissible 404(b) “complete story” the defendant’s under Rule to because it involved evidence of accident, family prior to or members show absence of mistake sexual molestation the Accordingly, the trial opportunity. The trial court also other than victim. motive or signed by 4. discussion of the failure of CJ's 3. The verdict submitted to and For a forms jury specified provided exactly whether the sexual assault was in the the to match dates indict- the by ment, oral contact or intercourse. On committed section F. see infra count, jury explicitly the found that defen- this by oral sexual dant had committed sexual assault support there was no evidence to contact and finding. such a by admitting pression by court did not err evidence of her opinion ChJ of as to defen- character, prior against defendant’s opin- sexual acts CJ. dant’s vague and somewhat imply ion at that. The comment not that did C. actually ChJ had com- observed defendant mitting untoward act with CJ. wife, ChJ, Defendant’s testified the state as a hostile prosecu witness. The Moreover, reject argument we defendant’s unsuccessfully attempted tor to have ChJ unfairly the comment bolstered CJ’s acknowledge statements had dur she made credibility. give observed CJ ex- ing an October with 1992 interview Detective provided great tensive deal trial, consistently Eric Stall. At ChJ re direct evidence defendant. It is sponded that she not making did remember jurors’ unlikely that assessment her by those statements attributed by truthfulness a triple-hearsay was affected prosecutor. of a reiteration comment ChJ that went testified, prose-
When indirectly credibility. Detective Stall to CJ’s him, you cutor “Did asked ask whether [ChJ] Furthermore, response to defendant’s thought or not she that her husband was objection, immediately the trial in- court this, capable doing meaning sexually as- jurors rely structed the on their own saulting responded, Stall [CJ]?” “Yes.” There recollection as to whether Detective Stall record, however, is no in the evidence as to during to him reiterаted ChJ’s statement response ques- ChJ’s actual to this interview addition, testimony. trial in- the court tion. jury, both structed before and after the Nonetheless, during closing argument the to “decide the facts from the evi- prosecutor following made the remarks: court,” produced dence and that state- Stall, says And even mom to Detective it is attorneys ments are not evidence. daughter’s not within her nature lie. circumstances, Under these we conclude that says And she something then also else. the trial court did abuse its discretion in put past She wouldn’t it her husband to do finding improper remark did not things daughter. those to her affect the verdict. objected, arguing Defendant that there was support
no evidence in
the record
D.
stated,
prosecutor’s statement. The court
*7
rely
jury
“We will
the
on their
let
own recol-
Hemmady
Dr. Parabodh
examined
lections of that.” The court denied defen-
reported
CJ two weeks after she
the incident
contemporaneous
dant’s
oral motion for a
police.
Hemmady
Dr.
testified as CJ’s
mistrial and subsequent written
for a
examination,
motion
statements to him
the
during
new trial.
argues
803(4)
Defendant
that the trial
pursuant
excep
to the Rule
hearsay
court abused its
in refusing
discretion
argues
tion. Defendant
that CJ’s statements
grant a
disagree.
mistrial or new trial. We
identifying
perpetrator
defendant as the
the sexual assaults were
under
inadmissible
clearly
The remark
improper
was
803(4)
necessary
Rule
not
because
were
because it was
on
that
not
based
facts
were
diagnosis
for CJ’s medical
or treatment.
requires
evidence. Such a remark
new
probable
if
trial
it was
that the remark af We
not address the merits of defen-
need
verdict,
denying
fected the
thus
the defen
argument,
dant’s
because admission
Hansen,
dant
fair trial.
v.
156 Ariz.
evidence,
improper,
palpa-
of the
if
even
was
291,
(1988).
751 P.2d
In re
bly
testimony
unequivo-
harmless. CJ’s
was
issue,
viewing a trial court’s decision on this
in identifying
perpetra-
cal
defendant as the
apply
we
abuse
discretion standard.
Thus,
alleged
tor of the
Dr.
sexual assaults.
Id. We
that
conclude
the trial court did not
Hemmady’s
merely cumula-
was
abuse its discretion.
fact,
tive.
In
the cumulative nature
this
damaging
The statement
not as
was
grounds
was
as
one
for defen-
suggests.
It
purported
objection:
was a
ex- dant’s
the motion on
denial of
ror to the court’s
sort of rule
to me there’s some
seems
[It]
argues that the information
mat-
and further
regarding cumulative
basis
about evidence
hearsay because
economy.
I
inadmissible
judicial
And
in the note was
and sort of
ters
to the medical examina-
going
pertinent
to—the
it
not
point we are
think at some
arguments.
disagree with both
hearing
and over
tion. We
jury just keeps
over
[CJ];
allegations made
again the same
803(4)
hearsay exception
provides
Rule
already
to under oath
testified
what she’s
of medi-
purposes
made
for “[statements
anyway.
describing
or treatment
diagnosis
cal
at
was not
identity
perpetrator
of the
symp-
present
history,
рast
or
or
medical
position that
Defendant took the
issue here.
sensations,
inception or
toms,
or the
pain, or
never occurred. He did
alleged
sex acts
cause or external
character of the
general
may
but
posit that the acts
have occurred
reasonably perti-
as
thereof insofar
source
If
person.
other
perpetrated
were
some
The note
diagnosis or treatment.”
nent to
sexually
that CJ was
as-
believed
information de-
physician with
provided CJ’s
saulted, they clearly would have concluded
general character
scribing
inception and
regard-
perpetrator,
that defendant was the
required medical
of the circumstances
testimony.
Hemmady’s
We
less of Dr.
Moreover,
Hemmady indicat-
Dr.
attention.
Dr.
that the admission of
therefore conclude
were rou-
questions asked of CJ
ed that the
identi-
Hemmady’s testimony regarding CJ’s
of the
cases. The contents
tine
sex abuse
impact
no
on the
fication оf defendant had
note, therefore,
reasonably pertinent
verdict.
and were admissible
diagnosis or treatment
803(4).
See United States
under Rule
on
defen-
also note that the case which
We
Cir.1985).
(8th
Renville,
779 F.2d
435-39
relies,
This statements mitted. introduction of CJ’s port the approximate concerning the Parkin Officer Defendant, however, argued not has statements of the assaults. CJ’s dаtes in the reversal should result why this error concerning was in the dates Officer Parkin apparently assumes He of his convictions. testimony regarding with her trial consistent frame results specific of a time that the lack acknowl prosecutor even
the dates. support the evidence to in insufficient argument for the introduc edged this in her disagree. indictment. We charges the we “[W]hat at trial: tion of these statements whether or looking ... is to know [for] are that the introduction of Offi- conclude We frames. remembers the time not the officer testimony regarding the dates cer Parkin’s recollection, [CJ], my did not to the best of of the harmless. The date the assaults was give time but she did give specific of sexual assault. offense is not element officers the times.” 13-1406(A). provid- § The dates See A.R.S. provided specific If dates CJ had therefore, Parkin, were not by ed Officer testimony then trial and the defense proof of the state’s ease. See material recently charged that she had fabricated 391, 392, P.2d Verdugo, 109 Ariz. State dates, state- those evidence CJ’s October (1973). Furthermore, it cannot be regarding the dates would have been ments testimony CJ’s argued that bolstered That, however, not the case admissible. simple that Officer credibility for the reason Thus, statements to Offi- here. because CJ’s was not testimony regarding dates Parkin’s as- concerning cer Parkin the dates of the CJ’s; precisely why this is consistent with trial not consistent with CJ’s saults were testimony inadmissible Officer Parkin’s testimony regard- testimony, Parkin’s Officer charge fabrica- defendant’s of recent rebut ing particular statements was not ad- these 801(d)(1)(B). therefore tion under Rule We 801(d)(1)(B). missible under Rule beyond a doubt that Of- conclude reasonable alternatively urges us to affirm testimony regarding The state Parkin’s the dates ficer ruling trial court’s for the reason that jury’s not affect the ver- of the offenses did inability of these CJ’s to remember the dates dict. makes her an “unavailable” witness
incidents further conclude CJ’s 804(a)(3). We But, if the Rule even de- under testimony regarding the dates of the assaults “unavailable,” testimony clarant is must support the convictions. As was sufficient to hearsay exceptions fall within one of the above, testimony generally estab 804(b). noted not listed in Rule The state has occurring assaults be lished seven sexual argued specific exception applies to which September or October tween late March testimony, Parkin’s and we conclude Officer alleged indictment two offenses 1992. The that none of them do. 1992;” October, two occurring “on or about 804(b)(5), “catch Nor does Rule March 27 occurring “on or between” offenses provision, apply because CJ’s statements all” 1992; occur and four offenses and June possess the “circum to Officer Parkin do not July, 1992.” We conclude ring “on or about re guarantees stantial of trustworthiness” the dates al the differences between by exception. v. Robin quired this Cf. general the more leged in the indictment and son, 191, 201-02, 811- require do not reversal provided dates (1987) supported by (hearsay statements convictions because defendant of defendant’s guarantees “equivalent circumstantial prejudice. has shown made when the statements trustworthiness” First, corresponding to though CJ’s dates five-year-old spontaneous, consis by a exactly do not tent, specific of the counts physical evi most and corroborated both indictment, both CJ’s Accordingly, match those of the changes). dence and behavorial 804(b)(l)(5) generally indictment es- and the that Rule does we conclude late occurring between tablish assaults Parkin’s apply and Officer 1992. of the al- March and October concerning approximate dates *10 544
A technical or formal defect in an
any
dice that could be asserted
an
time
may
by
indictment
be remedied
amendment.
alleged
offense was
to have occurred over
A defect is technical or
if
formal
it does not
period
of time.
change
charged
the nature of the offense
or
6,
Id. at 410 n.
State v.
135 Ariz.
661 P.2d
Defendant did not use an alibi defense at
(App.1983).
230
When the amendment re
argue
nor did he
that the crimes were
change
sults in no
underlying
offense
Rather,
person.
committed
another
defendant,
prejudice
or actual
to the
lying.
sole defense was that CJ was
As in
automatically
indictment is
deemed amended
Schroeder,
53,
47,
State v.
167 Ariz.
804 P.2d
to conform to the evidence adduced at trial.
776,
(App.1990),
782
Roscoe,
212, 225,
State v.
145 Ariz.
700 P.2d
1312,
(1984),
denied,
1094,
1325
cert.
471
only
U.S.
Defendant’s
defense was that the acts
2169,
(1985);
105
Thus,
S.Ct.
victim sometime between October 13-1406(B). § crime children. A.R.S. that, May 1987. This court held requires A.R.S. section 13-604.01 “flat time” “[although the allege indictment does time sentencing consecutive for such crimes. Sec periods alleged which the offenses were 13-604(L) provides tion that a trial court’s ranging up year, have occurred to one defen- impose failure to sentences accordance prejudice dant does not show actual with the mandates of Arizona Title therefrom.” Id. We reasoned that Code, Criminal amounts to malfeasance. De assertion that he was sentencing
[defendant's unable fendant contends that this scheme defense, Constitution, present an alibi because he offends Article 3 of the Arizona specific provides could not reconstruct his life for a which that “no one of such [branch theoretical, actual, year, preju- government] is a es of state shall exercise the
545 disproportionate belonging year prison grossly terms is power properly to either of the committed. conclude that argues that the malfea- to the crimes We others.” Defendant judiciary’s it is not. provision “infringes on the sance by requiring role the trial
constitutional
in
sentence,
requires
Bartlett II
a threshold
impose
court to
an excessive
based
quiry
comparison
whether a
of
to determine
prosecutor’s discretion of whether to
on the
in
supports
with the sentence
dangerous against chil-
the crime
charge a crime as
dren,
disproportionality. 171 Ariz.
judiciary’s
gross
ference of
infringes on the
com-
and
305,
conducting
In
this
at
I. procedural caused two of the three abuses noted, CJ, RJ, previously reject prior As when children to their recantations. Furthermore, appear day and SJ failed to on the first the effect on the children’s tes- so, they timony thoroughly explored in despite subpoena to do defense children, pursuant of the arrested civil arrest warrant. counsel’s cross-examination argu- They placed Maricopa argued closing and was to the were then FIDEL, ments. We therefore Presiding Judge, dissenting conclude that the viola- process rights part. tions of the children’s due did deprive defendant of a fair trial. I concur the reversal of conviction on Counts IV and VI. But I would reverse con-
J. trial, in my judg- viction on all counts. This ment, fatally undermined the unlaw- Defendant has not specif- raised issues inherently ful and coercive detention of the probation ic to the revocation in cause no. *13 against children who testified defendant. CR 92-02303. We therefore affirm the trial probation court’s revocation of and the sen- primary against The evidence defendant is imposed. tence CJ, 15-year-old defendant’s RJ, daughter, 13-year-old and son. defendant, in Notwithstanding, sentencing recanted, reinstated, These children then ac- mistakеnly the trial court treated the under- cusations that their father had molested CJ. lying attempted flight offense as unlawful charges Recanted and reinstated un- are not (the from a law enforcement vehicle offense cases, usual in child abuse and courts must with which defendant charged), rather they find the truth as best can. But this (the felony than endangerment offense to uniquely troubling. case is pled offenses, which guilty). he Both howev- er, subject are class 6 felonies to identical It is useful at the start to consider several Furthermore, sentencing ranges. features that make this at best a weak case presumptive prison received the term and against First, RJ, defendant: CJ and when appear there do not mitigating to be accusations, recanting they their initial said applicable factors charge to revocation of one reported police had their father be- but not the other. merely We therefore they angry cause brought that he had entry amend the Junе 1993 minute to woman into the for house extra-marital sexu- reflect defendant has adjudged been Second, SJ, al relations. 11-year-old sis- guilty endangerment, attempt- rather than joined ter who siblings her in both their flight. ed unlawful February October accusations and their re-
cantation, recantation, has stood testi- CONCLUSION fying that the accusations were a false con- punish coction to them get father and him out We have searched the record for funda- Third, of the house. there is no corroborat- error, pursuant mental to A.R.S. section 13- ing physical reported evidence. CJ that she 4035, and, above, aside from the errors noted repeatedly subjected vaginal been in- have found none. Accordingly, we affirm six period years tercourse over a of nine and to sentences, of defendant’s convictions and especially painful several episodes of anal reverse two of defendant’s convictions and intercourse, one of them six months before probation sentences. Defendant’s revocation trial and four weeks before a medical affirmed, and sentence in CR 92-02303 are Yet, upon examination for sexual abuse. ex- subject to the modification embodied in the amination, intact, hymen and she following order. signs scarring had no of anal or abrasion. ORDERED, tunc, IT pro IS nunc amend- points validity None of these rules out the ing entry the trial court’s minute order dated charges. highlight But how 92-02303, June CR as follows: closely depends the State’s case on the accu- three, read, Page paragraph 1. shall (For racy credibility of CJ and RJ. these “OFFENSE: Amended Count III: Endan- others, among reasons the court finds insuffi- germent,” and cient guarantees circumstantial of trustwor- five, read, Page paragraph 2. shall support application thiness of Rule 804(b)(5) “IN VIOLATION OF Evidence, A.R.S. SECTIONS: of the Arizona Rules of 13-1201, -701, -702, -801, -802, -812.” hearsay provision, “catch-all” to CJ’s Parkin.)
statements to Officer This is not GARBARINO, J., heavily concurs. weighs case which the evidence so 29th, night in sent for another he was substan- as to overwhelm
toward conviction brought back to court juvenile detention tial error. spent six following day. CJ and SJ on the backdrop, to the issue Against I come this they were juvenile detention before nights force that the State the unlawful coercive testify the 30th. SJ court to on brought to brought to bear to obtain and trial court day; testimony on that but completed her testimony of the children. RJ, on did not finish her like CJ meeting evening February at an juvenile day and was returned the first CJ, SJ, county attorney, office of the at the brought then night another detention for county informed the attor- and their mother following day. court the back to up made the accu- ney that the children had finding trial court made moth- While their sations defendant. placed to be detention children needed room, separate in a was interviewed er (their father awaited protection own their then- departed unannounced for and SJ court find the jail). did the trial trial in Nor Subsequently, on Feb- grandmother’s hоme. *14 civil or crimi- mother —in children —or their came to their ruary police officers Peoria hearing, the trial contempt. a nal Without school, school, removed from had CJ and SJ knowing whether the way court had police CJ brought them to the station. and had been knew their mother children even leaving the to call her mother before asked chil- or whether the subpoena, with a served request at the sta- repeated her school subpoena, they subject to a knew were requests. dren both tion. The officers denied chosen the children had much less whether knew were her mother asked whether defy order. that she did to the court being questioned and was told station, girls the were locked not. At the 64.1(b) of Civil the Arizona Rules Rule separately for recorded a room and taken issue a civil permits a court to Procedure' (The not show the record does interviews. matter” warrant “in a non-criminal arrest inter- which the State circumstances under in court in appear to person fails when RJ.) viewed Having subpoena. in a person as directed request, subpoe- county attorney’s At the in a matter warrants criminal issued bench CJ, RJ, mother, and SJ were nas for the for non-criminal a rule intended pursuant to mother, directing all four to upon the served matters, compounded its error trial court the a.m., Tuesday, March at 10:00 appear on requirements of protective by ignoring the did not day of trial. The witnesses the first 64.1(d) arrested requires the rule. Rule the 24, at the Wednesday, March appear. On immediately before brought “be person to is- county attorney’s request, the trial court reasonably possible” issuing judge if it is the for each of them. arrest warrants sued civil 24 hours of judge “within and before some afternoon, arrest- police officers That Peoria The children of the warrant.” the execution at then- three children ed the mother and judge at least brought for not before them, home, brought handcuffed each 64.1(e) requires the days. Rulе further five station, From the police to the station. them on the person the arrested judge to “release jail county transferred to the the mother was conditions which terms and least onerous juvenile detention.. and the children to No. required appear- guarantee the reasonably Thursday, March provided. On hearing was added.) sug- The record (Emphasis ance.” transportation signed the trial court available. options were gests that release order, three children be directing that (The grandmother dem- maternal children’s to juvenile detention center brought from the by coming to court reliability onstrated Monday, p.m. at 1:00 on trial court required day trial as of the on the first order, extended By the court March 29. of the chil- great-grandparents subpoena, the hearingless of the children confinement town, RJ, by the time of lived in dren through the weekend. great-grand- living with his had been weeks.) trial Yet the detention, at least two parents for juvenile RJ nights After five alterna- сourt, considering release without March 29. testify on brought to court most on- tives, to the subjected the children testimony on his RJ did not finish Because ac- conditions, countervailing pressure to as a leaving them detention terms and erous complete their cuse. await trial and confined to case, and, in CJ’s seven
testimony for six “[Tjhere weights and mea is no table of days. ascertaining what constitutes due sures Wilson, considered, Burns v. 346 U.S. process.” much less never The trial court (1953) 1045,1052, L.Ed. 1508 followed, statutory procedures for secur- 73 S.Ct. J.). Frankfurter, Here, (separate opinion of in a ing presence of a material witness vastly and trial court Ann. the State criminal case. See Ariz.Rev.Stat. (1989). bounds, (“A.R.S.”) acceptable and secured §§ to 13-4084 exceeded 13-4081 such attorney bring critical evidence county these stat- Nor did the improperly coercive means as reach Pursuant utes to the court’s attention. deprive defendant statutes, of the case and preliminary hearing, a fоundation these after a King, Ariz. trial. may required post of a fair See be material witness (1988). 419, 424, so, and, may 763 P.2d if unable to do appearance bond circum- be confined—under “extreme primarily on the confine- I have focused days. than three no more stances” —for children, points two further ment of the but Reid, 16, 25, First, my I cannot mini- weigh in dissent. (1976) (“Confinement witness, of a even does, mize, majority the State’s attri- as the crime, days, charged with a for a few opinion wife of the bution to defendant’s justified ... oppressive measure harsh molesting capable of defendant was circumstances.”). only in the most extreme of one’s own child is daughter. Molestation *15 Here, hearing, showing no of ex- with likely an act that a would so abhorrent justify any days of treme circumstances to hu- suppose beyond capacity of most it confinement, three-day much statu- less the jury, might beings. man Such a maximum, tory and no consideration of avail- persuaded such readily more be to attribute alternatives, the court confined able release if that his wife found person an act to a told nearly Statutory the children for a week. character. it consistent with his requirements, requirements of Rule like the does, Second, majority say, I as the cannot 64.1, wholly ignored. were unaffected that defendant’s convictions were unquestionably This chain of events denied hearsay from Officer Parkin. inadmissible (and to their process due to the children majority acknowledges that CJ’s testi- The mother, similarly neglect in who was confined majority acknowledges mony vague; the rule). ques- material of the statutes The Parkin lacked report that CJ’s to Officer are whether this chain of events also tions trustworthiness; guarantees of circumstantial defendant, and, so, if process denied due physical contains no evidence and the record whether it amounted to fundamental error. again accu- again, CJ’s on off corroborate testimony Through My questions yes. The sations. inadmissible answer to these Parkin, supplied they from the State dates last word from the children before Officer supply frames that it could not falsely accused and time detained was majority through the of CJ. The grossly impermissible But after their father. required was not intermina- reasons that the State detention that must have seemed majority child, dates and times. The supply asserted that these to a two of the three ble that, through ignores by doing so Officer true. original their accusations had been Parkin, or under- supplied a bolster hard to know. This the State the truth lies is Where may testimony that have girder for CJ’s easy problem an for the trial court was not jury’s to convict. To influenced the decision responsible or the State. State harmless, we must be inappro- say that error was child witnesses from protecting the recant, beyond a reasonable doubt and the “confident priate family pressure to jury’s on the had no influence undoubtedly suspected pressure such the error Bible, 549, 588, entitled, 175Ariz. judgment.” State v. But the State was not this case. (1993). say I away cannot position, sweep pursuit of its employ here. procedures rules and protective reasons, foregoing
For the I would reverse Further, entirety.
this conviction its I
would hold the children’s trial upon
statements detention inadmissible place
retrial and the burden on the State to any subsequent
show that statements sufficiently
children are attenuated from the upon
coercive confinement to be reliable re-
trial.
PIMALCO, INC., Corporation; an Arizona
Payless Inc., Cashways, Corpo an Iowa
ration; Community, Gila River Indian
Federally Recognized Tribe, Indian
Plaintiffs-Appellants, COUNTY, a
MARICOPA Subdivision of Arizona; Depart
the State of Arizona Revenue, Agency
ment of of the State Arizona; Corpstein, Maricopa Pete
County Assessor; Doug Todd, Mari
copa County Treasurer, Defendants-Ap
pellees.
1No. CA-TX 96-0002. Arizona, Appeals
Court of 1, Department
Division T.
Jan. 1997.