State v. Hilliard

359 P.2d 66, 89 Ariz. 129, 1961 Ariz. LEXIS 188

• Court: Arizona Supreme Court
• Decided: February 2, 1961
• Docket: 1173
• Status: Published

Opinions

JENNINGS, Justice.

The defendant-appellant Felton M. Hilliard was convicted on two felony counts to wit: Rape, count one (1), and Burglary in the first degree, count two (2), and sentenced by the court to serve not less than thirty-five (35) years nor more than forty-five (45) years on count one (1), and not less than five (5) years nor more than seven (7) years on count two (2), the sentences to run concurrently. From the judgments of conviction and the orders of the court denying the motions for a new trial, and in arrest of judgment, this appeal was taken.

The facts briefly stated in the light most favorable to sustaining the convictions are that the prosecutrix was awakened about 2 a. m. in her small one-room cabin by defendant who choked, attacked, and threatened her and who later, after drinking some beer, fell asleep on her bed.

Defendant claimed the prosecutrix had approached him, a stranger out on the street, had invited him into her house, and that the intercourse was voluntary.

The defendant presents five assignments of error. The first assignment states that the trial court erred in refusing to grant the defendant a new trial on the ground that he was denied his right to a trial by an impartial jury as a result of the action of a member of the jury panel in publicly denouncing the defendant in the presence of her fellow jurors. This incident occurred, however, in front of an entirely different panel than that which returned the verdicts against the defendant.

The case came on for trial September 14, 1959. During the voir dire the prospective jurors were asked by the court whether any of them were acquainted with the defendant. One of them replied:

“Your Honor, I don’t know if I am acquainted with him or not, but he is the one that attacked my daughter several years ago, so * *

The court immediately granted a mistrial.

The following day, in order to insure an impartial trial, the court asked the new prospective jurors if they had been in the courthouse the day before. Some said yes. The court then asked if any had heard discussion of the case in any form. One woman so indicated. She was instructed to approach the bench. Out of the hearing of the other jurors she told what she had heard and was promptly excused. None of the other jurors had heard of the mistrial.

The defendant then made a motion to vacate the trial setting so that he might be tried by a later venire. The motion was denied. The defendant contends that he was thereby denied a fair and impartial trial as guaranteed by the Constitution of Arizona, Art. 2, § 24, A.R.S. There was no evidence that any of the panel which returned the verdict had ever heard of the mistrial. The jury was in fact an impartial one.

A defendant is not entitled to be tried by any particular jury but only by one which is fair and impartial. State v. Miller, 71 Ariz. 140, 224 P.2d 205; Conner v. State, 54 Ariz. 68, 92 P.2d 524; Kinsey v. State, 49 Ariz. 201, 65 P.2d 1141, 1142, 125 A.L.R. 3. However, the trial court has the right to use its discretion on a challenge for cause, and so long as there has been no abuse of that discretion it will not be disturbed on appeal. State v. Brady, 66 Ariz. 365, 189 P.2d 198; Riley v. State, 50 Ariz. 442, 73 P.2d 96.

Defendant next contends that the trial court erred in refusing to permit defendant to poll the jurors as to whether or not the jurors might have read newspaper articles concerning the trial. Defendant’s counsel advised the court that a local newspaper had published an account of the juror’s statement which prompted the mistrial. There was no evidence whatsoever that any juror had disobeyed the court’s admonition which, at the outset of the trial was as follows:

“During the recess and all future recesses, * * * It is quite important under the circumstances that you be alert and do not permit any communication to come to you. I don’t care if it is by some individual or through newspaper or radio or television. I don’t know, but just do not permit yourselves to be communicated with concerning any matter involving this case in any way, shape, or form.”

The admonition was again given at the next recess.

At the close of the day’s session and before the article in question was published, the court gave the following admonition:

“We will take the evening recess at the present time. We will stand in recess until 9:30 o’clock tomorrow morning. During this evening recess and all other future recesses, again I wish to admonish you as to the jury and the alternate juror that you are not to discuss the purported facts of this case among yourselves, nor with any other person. Now any other person does include your respective spouses. In other words, do not discuss the purported facts of the case with your husbands or wives or with any person at all. Do not permit anyone to endeavor to discuss any phase of this proceeding and do your best to remain out of the hearing of any radio announcement, if such there be, or television, or newspaper. In other words, do not permit yourselves to be communicated with in any way, shape, or form concerning the possible facts of this particular case.”

At each recess, during the trial, the court either gave these admonitions in full or referred to them in such a manner as to further emphasize the obligation of the jurors to heed the admonition.

At the outset of the trial during the voir dire examination of the jurors the following colloquy took place:

The Court: “May I interrupt and ask the whole panel a general question I think should be asked that I neglected to ask? Do any members of the panel feel that perhaps they know any of the purported facts of this case? Have any of you perhaps, if it was reported in the paper, read about it in the paper?

Mr. Fox: “I have read about it in the paper.

The Court: “Was that recently or some time ago?

Mr. Fox: “That was, I would say, sometime in June.

The Court: “And do you feel you recall any of the particular details related in the newspaper? Do you feel that you would be able to completely disregard anything you might have read in the newspaper, realizing that the newspaper stories are based upon, you might say, stories turned in by the reporters and often the reporters have deadlines and their source of information might not perhaps be accurate, and . therefore, that anything you might have read could be completely forgotten and any verdict based exclusively upon the evidence and the testimony presented here in court? Do you feel you could do that?” (Emphasis ours.)

Mr. Fox: “Yes” * * *

Thus, in this background, the court emphasized by his admonitions to the entire jury not to read any further newspaper accounts or to be influenced by them.

In People v. Phillips, 120 Cal.App. 644, 8 P.2d 228, the defendant filed an affidavit alleging that some of the jurors had become prejudiced by reading a newspaper headline. The court said :

“ * * * It perfectly appears from the entire affidavit that this is a conclusion on the part of the affiant, and that it amounts to no more than an assertion of his opinion and belief to that effect. This is not sufficient.”

In the instant case there is not one scintilla of evidence that any juror read the article in question. If a trial court is required to poll a jury on one aspect of its admonition at the whim of counsel with no proof of violation, then it must also poll a jury on each and every aspect of its admonition whenever counsel request it.

There is no presumption that jurors will betray their trust. Where a jury has been clearly admonished not to read newspaper accounts of the trial, the refusal of the trial judge under the circumstances of this case to permit counsel to interrogate them on the speculative possibility that one or all of them might have read newspaper accounts is not error. The granting of defendant’s request that jurors be interrogated during trial as to whether they have read newspaper accounts rests in the sound discretion of the trial court. State v. DeZelar, 230 Minn. 39, 41 N.W.2d 313, 15 A.L.R.2d 1137; Kitts v. State, 153 Neb. 784, 46 N.W.2d 158; People v. Phillips, supra. Under the circumstances of this case the trial court was fully within its discretion in refusing counsel’s request.

As his third assignment of error the defendant contends that the trial court erred in failing to grant a new trial on the ground that the defendant was prejudiced by the prosecutor’s failure to follow, in the presence of the jury, impeachment matter concerning an alleged former conviction of the defendant, which the defendant equivocally denied.

Though defendant contends that the prosecution prejudiced him by not introducing the exemplified copy of commitment in evidence and showing the jury that he was either mistaken or lying, this could have been done. The rule is stated in State v. Sorrell, 85 Ariz. 173, 333 P.2d 1081:

“The general rule is that the state may inquire of the defendant when he is a witness if he was previously convicted of a felony. If the answer is in the affirmative he may be asked the number of such convictions, the names and nature of the crimes, and the places where they were committed, State v. Polan, 78 Ariz. 253, 278 P.2d 432, and if the answers are correctly given the inquiry must end there. If any answer of the defendant in this regard is incorrect, or if he claims he does not remember, or if he denies such conviction or equivocates in his response to questions as to conviction of felonious crimes, the facts of his conviction or convictions may be shown by the record thereof.” (Emphasis ours.)

Error lies only where the State makes insinuations which it is not able and prepared to prove. State v. Stago, 82 Ariz. 285, 312 P.2d 160; State v. Singleton, 66 Ariz. 49, 182 P.2d 920. Thus in this situation where the State has first made an offer of proof of conviction, it may let the defendant’s equivocation pass. Under the circumstances of this case it might have been better if the court had, after the defendant’s equivocation, required the State to introduce the exemplified copy into evidence, since the prosecutor was willing and able to do so. However, under the interpretation, we consistently have given section 22, article 6 of the State Constitution, the mere fact of error does not raise a conclusive presumption of prejudice. State v. Singleton, supra.

In his fourth assignment of error defendant contends the prosecuting attorney in argument to the jury was guilty of misconduct prejudicial to the defendant's right to a fair and impartial trial. It is urged that the prosecutor “testified” in argument stating his personal beliefs concerning the reason why the police did not fingerprint the front door. As this Court previously stated in State v. Jordan, 80 Ariz. 193, 294 P.2d 677, 679, 680:

“ * * * It is elementary that arguments must be based on facts which the jury is entitled to find from the evidence and not on extraneous matters that were not or could not be received in evidence.”

This Court does not in the present case minimize the statement from State v. Jordan, supra. However, one officer Tease had previously testified that some surfaces, such as those which are rough, dusty, or greasy, will not retain fingerprints. This Court views the prosecutor’s argument merely as a discussion of the evidence.

We have held on various occasions that attorneys are given wide latitude in their arguments to the jury. State v. Thomas, 78 Ariz. 52, 275 P.2d 408; State v. McLain, 74 Ariz. 132, 245 P.2d 278; Sage v. State, 22 Ariz. 151, 195 P. 533. As was stated in State v. Jordan, supra:

“ * * * a prosecutor is allowed considerable latitude in a discussion of the evidence, the possible facts the jury may find and the reasonable inferences that may be drawn therefrom.”

We, therefore, see nothing prejudicial or improper in the prosecutor’s remarks.

The defendant’s fifth assignment of error is that the testimony of the prosecutrix is inherently improbable and that it is refuted by the testimony in the State’s case. We believe this assignment is without merit.

Appointed counsel, and we commend his diligence and sincerity, argues strenuously the difficulties of a Negro defendant getting a fair trial when involved with a white woman under these circumstances. There is nothing in the record which would lend credence to a belief that the verdicts were the result of any racial prejudice.

The story of the prosecutrix is not inherently improbable. There is evidence that a concupiscent man spied on her where the window shade would not completely close; crawled through the window after she was asleep and raped her. Her testimony is amply corroborated by other witnesses; physical evidence of severe bruises on her throat and breasts; arousing the landlord while she was shaking and hysterical; presence of sperm; and the cut window rope dropping the window down into the wall; and the torn window screen near the defendant’s clothes, which he said he had left in the garage, later testifying that he left them on a chair by the bed and being unable to account for their presence in the garage. A pair of scissors was found by the bed and a knife was found several days later stuck underneath the mattress at the side of the bed.

If the prosecutrix’ testimony is not physically impossible nor so incredible that no reasonable man would believe it, no corroboration is necessary and the conviction will be sustained. State v. Merryman, 79 Ariz. 73, 283 P.2d 239; State v. Laney, 78 Ariz. 19, 274 P.2d 838. Where the sufficiency of the evidence to support a conviction is in issue, the evidence must be considered in the strongest light in favor of the verdict and all reasonable inferences therefrom must be taken in the manner most unfavorable to the defendant. State v. Milton, 85 Ariz. 69, 331 P.2d 846.

The judgment is affirmed.

UDALL and LOCKWOOD, JJ., concur.