State v. Bogan

905 P.2d 515, 183 Ariz. 506
CourtCourt of Appeals of Arizona
DecidedNovember 21, 1995
Docket1 CA-CR 93-0453
StatusPublished
Cited by17 cases

This text of 905 P.2d 515 (State v. Bogan) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bogan, 905 P.2d 515, 183 Ariz. 506 (Ark. Ct. App. 1995).

Opinions

OPINION

McGREGOR, Judge.

Mark Alan Bogan (appellant) seeks to reverse his conviction and sentence for murder in the first degree under Arizona Revised Statutes Annotated (“A.R.S.”) section 13-1105.A.1. The primary issue on appeal is whether the trial judge erred in permitting expert testimony that deoxyribonucleic acid (DNA) test results indicated that two palo verde pods found in appellant’s truck “matched” a palo verde tree growing at the crime scene. For the reasons that follow, we affirm appellant’s conviction and sentence.

I.

On Sunday morning, May 3, 1992, Tim Faulkner was riding his dirt bike in a remote area of western Maricopa County known as the Caterpillar Proving Grounds. As he rode through a dry wash near the intersection of Jackrabbit Trail Drive and Indian School Road, he saw the nude body of a woman, lying face down in the brush near a cluster of palo verde trees. She appeared to be dead. Faulkner rode home and telephoned police.

Officers of the Maricopa County Sheriffs Office soon arrived at the site and began an investigation. Police identified the woman as Denise Johnson of Phoenix and determined she had been strangled to death. Johnson’s death appeared to be recent because blood found on her body was still wet. Her clothing was scattered around the immediate area, and the matted condition of the grass suggested that she had been dragged a short distance to the spot where she was found. A cloth was tied around her neck and left wrist, a shoelace was tied around her left ankle, and braided wire was tied around her right wrist and right ankle. A vinyl strap and another braided wire were lying across the victim’s neck but not connected to anything. The unconnected length of braided wire was attached to a metal ring.

As police probed the area looking for evidence, Chad Gilliam approached and told them that he wanted to make a statement. Gilliam stated, and later testified at trial, that he had been driving home from a party at approximately 1:30 that morning when he noticed a vehicle exiting the Caterpillar Proving Grounds. The vehicle drove out of the proving grounds, ran a stop sign, turned south on Jackrabbit Trail Drive1 and moved “pretty quick” toward Interstate 10. He paid particular attention to the vehicle because of the late hour. The vehicle was a white “dually”2 pickup truck with amber clearance lights on the top of the cab.

During their search of the area for evidence, the police found a pager a few feet from the body. Police ascertained that the pager was registered to Earl Bogan (appellant’s father) but used primarily by appellant.

Appellant drove a white dually pickup truck with amber clearance lights on the top of the cab. Police impounded and searched appellant’s truck pursuant to a warrant. In the bed of the truck, they found two seed pods from a palo verde tree and collected them as evidence.

Appellant lived in an apartment at Eighty-third Avenue and Indian School Road, an eighteen minute drive from the Caterpillar Proving Grounds. Rebecca Franklin, who lived with appellant at the time of the crime, testified that appellant had been drinking heavily during the evening of May 2, 1992, when she left the apartment at approximately 8:30. When she returned at 11:30 that night, he was gone. Appellant awakened her at 2:03 on the morning of May 3,1992. After Franklin noticed scratch marks on appellant’s face that had not been there earlier in the evening, he told her he had received the scratches in a fight at a bar.

Franklin testified at trial that she saw a length of braided wire with a metal ring [508]*508attached to it in appellant’s track sometime in late April or early May 1992. The police did not find the wire when they searched the track on May 5, 1992.

When the police investigation focused on appellant, his version of the facts changed. He admitted lying to Franklin about his activities on the night in question. He told police that he had picked up a female hitchhiker late in the evening on May 2, 1992. His description of the hitchhiker fit the appearance of Denise Johnson.

According to appellant, he and the hitchhiker had sexual intercourse in the cab of his track while parked behind a building somewhere along Thirty-fifth Avenue between Camelback Road and Interstate 10. Afterward, as they drove south on Thirty-fifth Avenue toward the interstate highway, they argued. Appellant stopped the track and told the hitchhiker to get out. She then “swiped” his wallet, pager, and other items from the dashboard of the track and ran away. He chased her down, and she scratched his face when he fought with her to recover his property. He thought that he had recovered all his belongings but noticed the next morning that his pager was missing. Although appellant was familiar with the Caterpillar Proving Grounds, he maintained that he had not been there in years. He steadfastly denied killing Johnson. Appellant repeated this latter version of the facts when he testified at trial.

Detective Charlie Norton worked on the Johnson homicide investigation. At the crime scene, Norton observed that one of the palo verde trees—a tree later designated as “PV-30”—had a fresh abrasion on one of its lower branches. Norton contacted Dr. Timothy Helentjaris, a professor of molecular genetics at the University of Arizona, hoping that Helentjaris could use his knowledge of DNA technology to determine whether the seed pods found in appellant’s track came from one of the palo verde trees at the crime scene.

Helentjaris employed randomly amplified polymorphic DNA (RAPD) procedures to compare the DNA of the seed pods found in the track with the DNA in seed pods from the palo verde trees at the crime scene. He also analyzed DNA from other palo verde seed pods collected at various sites around Maricopa County. He concluded on the basis of his experiments, and later testified at trial, that he was confident the seed pods found in the track originated from PV-30.

The jury convicted appellant of murder in the first degree. The trial court sentenced appellant to life imprisonment pursuant to A.R.S. section 13-703. Appellant filed a timely notice of appeal. This court has jurisdiction to adjudicate this appeal pursuant to Ariz. Const, art. VI, section 9 and A.R.S. sections 12-120.21.A.1,13-4031, and 13-4033.

II.

A.

The first issue appellant raises is whether the trial court erred in admitting Rebecca Franklin’s testimony over appellant’s objection. Appellant asserted that because he and Franklin were married on July 11, 1991, the court should preclude Franklin’s testimony on the basis of the anti-marital fact privilege. See A.R.S. § 13-4062.A.1.

To overcome appellant’s claim of privilege, the state had the burden to show that appellant’s marriage to Franklin was void. See Wilson v. Wilson, 1 Ariz.App. 77, 81, 399 P.2d 698, 702 (1965). At trial, Teresa Bogan testified that she and appellant had married in 1982 and were still married. Appellant did not controvert Teresa Bogan’s testimony, and Franklin testified for the state.

Teresa Bogan’s testimony was sufficient to establish the invalidity of appellant’s second marriage.3 Roy v. Industrial Comm’n, 97 Ariz.

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Bluebook (online)
905 P.2d 515, 183 Ariz. 506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bogan-arizctapp-1995.