united states district court district of arizona · and linda l. knowles attorneys for appellee...

1 II TERRY GODDARD ATTORNEY GENERAL

2 (FIRM STATE BAR No. 14000)

3 AARON J. MOSKOWITZ ASSISTANT ATTORNEY GENERAL

4 II

CRIMINAL ApPEALS SECTION 1275 W. WASHINGTON PHOENIX, ARIZONA 85007-2997

5 II TELEPHONE: (602) 542-4686 (STATE BAR NUMBER 022246)

6 II ATTORNEYS FOR

RESPONDENTS

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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

WILLIAM FLOYD SMITH, CIV 04-573-PHX-FJM (MS) Petitioner,

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-vs

DORA B. SCHRIRO, et aI.,

Respondents.

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EXHIBITS A-D FOR ANSWER TO PETITION

FOR WRIT OF HABEAS CORPUS

EXHIBIT A

Judgment of Conviction Affirmed; Remanded for Resentencing;

Order and Mandate

EXHIBIT B

Indictment

EXHIBIT C

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28

State's Allegation of Historical Priors

Case 2:04-cv-00573-FJM Document 33-2 Filed 08/11/2005 of 24

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1 II TERRY GODDARD ATIORNEY GENERAL

2 II (FIRM STATE BARNo. 14000)

3 II AARON J. MOSKOWITZ ASSISTANT ATTORNEY GENERAL

4 II CRIMINAL ApPEALS SECTION 1275 W. WASHINGTON PHOENIX, ARIZONA 85007-2997

5 II TELEPHONE: (602) 542-4686 (STATE BAR NUMBER 022246)

6 II ATIORNEYS FOR

RESPONDENTS

7

8 UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

WILLIAM FLOYD SMITH, CIV 04-573-PHX-FJM (MS) Petitioner,

-VS

DORA B. SCHRIRO, et aI.,

Respondents.

EXHIBIT D

State's Notice of Intent to Use Defendant's Other Crimes, Wrongs or Acts

Pursuant to Rule 404(b), Arizona Rules of Evidence


EXHIBIT A


~ , ~~~Lf FILED

JUN 5 1997 °

B~~-~~~~!~

IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE

STATE OF ARIZONA, 1 CA-CR 96-0231

Appellee,

Appellant..

MEMORANDUM DECISION (Not for Publication Rule 111, Rules of

the Arizona Supreme Court) co -0 ::;;::

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DEPARTMENT D\..0 -.J c..... c:: r

WILLIAM FLOYD SMITH,

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.~>o Appeal

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from the Superior Court of Maricopa County

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Cause No. CR 94-92467

The Honorable Louis A. Araneta, Judge

JUDGMENT OF CONVICTION AFFIRMED; REMANDED FOR RESENTENCING

Grant Woods, The Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section and Linda L. Knowles Attorneys for Appellee Phoenix

Dean w. Trebesch, Maricopa County Public Defender by Carol A. Carrigan, Deputy Public Defender Attorneys for Appellant Phoenix

LAN K FOR D, Judge

William Floyd Smith (II defendant ") appeals his conviction and

sentence for administering a dangerous drug, a class 2 felony,

enhanced by one historical prior felony conviction. We affirm

defendant's conviction but remand for resentencing without

.enhancement.

FACTUAL AND PROCEDURAL BACKGROUND

We view the facts at trial in the light most favorable to

upholding the jury verdict. State v. Atwood, 171 Ariz. 576, 596,

832 P.2d 593, 613 (1992).

In May 1994, defendant hired R.T., 15, to work for him at his

office. Shortly thereafter, defendant offered R.T. a pay increase

~


to do housework at his home. However, R.T. testified that, while

she was at his horne, they would often just talk, or watch movies

together. Defendant also purchased more than $400 worth of

clothing for R.T. to wear at his office, even though she spent most

of her time at defendant's house.

On one occasion, defendant invited R.T. to sunbathe by the

pool at his house. When R.T. replied that she had no swimsuit,

defendant suggested that she wear her bra and underwear. Defendant

complimented her body and told her not to be modest because he

would not look at her. R.T. complied with defendant's suggestion.

Around noon on July 7, 1995, defendant picked up R.T. and

drove her to his house. Defendant offered her a drink of hot

chocolate, which R.T. declined. She asked instead for sparkling

apple cider. Defendant prepared the drink in his kitchen, outside

of R.T. 's sight, and brought it to her in a coffee cup. R.T. drank

the cider quickly, then consumed another cup which defendant

provided. When R.T. rose from her seat, she felt dizzy. She asked

defendant if the cider contained alcohol. Defendant replied that

it did not, and he showed her the cider bottle. R.T. complained

that she felt IIreally, really weirdll and defendant told her to lie

down. When R. T . sat up, because she wanted to watch a video,

defendant pushed her head down and told her to "stop fighting it."z-R ..> ,

She recalled nothing else that occurred until that night.

R.T. 's mother called defendant around 5:00 p.m. to determine

her daughter's whereabouts. After three or four minutes, he

brought R. T. to the phone. R.T. sounded IIspacyll and told her

mother she had been sleeping. R.T. 's mother said she would pick

her up but, before she could leave her house, defendant brought

2Case 2:04-cv-00573-FJM Document 33-2 Filed 08/11/2005 of 24

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R.T. home. R. T. was able to walk but was still, "spacy." Defendant

~laimed that R.T. had complained she was not feeling well, so he

had advised her to lie down and rest. He said that he had spent

the afternoon making telephone calls to clients.

Later, R.T. 's mother took her to the hospital. Subsequently,

a test of R. T. I S urine obtained there revealed the presence of

triazolam, the generic name for the drug Halcion, a dangerous drug

under Arizona Revised Annotated ("A.R.S.II) sectionStatutes

13-3401(6) (c) (lviii) (Supp. 1996). Halcion is a sedative with a

very strong hypnotic property which can cause dizziness and light

headedness and can induce sleep. When placed in cider, Halcion

fizzes briefly and then is nearly imperceptible. Police recovered

an empty Halcion prescription bottle from defendant I s kitchen..

When interviewed by police, defendant admitted that he had

poured cider for R.T., but claimed that he had done so within her

view. He told police that R.T. had said she was feeling drowsy and

that she had started to act IIgoofy.1I He had talked her into lying

down and had repeatedly asked her ~f she wanted to see a doctor.

Defendant denied giving R.T. Halcion. Although police did not ask,

defendant volunteered: "But I never touched her. And if she says

I did, she is lying like hell." When police told defendant that

R.T. had accusation, "Okay.made such defendant replied:no

Because if she did, she is lying."

The State also introduced evidence that defendant had written

letters to an acquaintance asking him to testify falsely in his

defense. Defendant had suggested that the acquaintance testify

that, when he visited defendant, R.T. approached him and asked if

he knew where she could get drugs.


The jury found defendant guilty. Although that jury was

discharged, the trial judge permitted the State to try the

allegation of historical prior conviction before a newly impaneled

jury, which found the allegation true. The judge sentenced

defendant to a presumptive term of 9.25 years imprisonment.

Defendant filed a timely notice of appeal. Defendant asserts that

the trial court erred:

1. in denying his motion for judgment of acquittal;

2. in denying his request for instructions on other offenses;

3. in admitting R.T.'s hospital records over his hearsay and confrontation objections;

4. in instructing the jury on reasonable doubt as defined in State v. Portillo, 182 Ariz. 592, 596, 898 P.2d 970, 974 (1995) ;

5. in permitting the allegation of historical prior conviction to be retried before a newly empaneled jury.

We rej ect the contention that defendant was entitled to a

judgment of acquittal. Defendant was indicted under A.R.S. section

13-3407 (A) (5) (1989), which provides that "[a] person shall not

knowingly. .. [a] dminister a dangerous drug to another person. " At

trial, he argued that the statute also required the State to prove

that, in administering the drug to R.T., he acted with the victim's

consent. The motion for judgment of acquittal was based on the

lack of evidence of consent. Because we conclude that consent is

not an element of the offense, we find no error in the trial

court's denial of the motion.

Defendant's principal argument for implying an element of

consent in section 13-3407(A) (5) is derived from his construction

of other subsections of that statute. For example, he notes that

the statute penalizes acts of "salell and IItransfer,1I which, like


"administering r" involve more t.han one person. See A.R.B. § 13

3407 (A) (7) . Defendant asserts that because a "sale" or a

"transferlt necessarily requires the consent of all parties to the

transaction, a consisten~ interpretation of the statute requires

that the act of Itadministering" a dangerous drug be consensual as

well.

Defendant's argument is based on an erroneous premise. Under.

none of the various provisions of section 13-3407(A) he invokes is

the consent or mental state of another party to the transaction an

element of the offense. The statutory definitions of "administer"

in section 13-3401 (1) , Ittransferlt in section 13 -3401 (29) r and

"deliverlt in section 13-3401(7), nei ther reference nor rest on

consent by the other party.l

Defendant also suggests that consent is revealed to be an

element of section 13-3407 (A) (5) when that statute is contrasted

with section 13-1205(A). The latter statute provides:

A person commits unlawfully administering intoxicating liquorsr a narcotic drug or dangerous drug ifr for a purpose other than lawful medical or therapeutic treatmentr such person knowingly introduces or causes to be introduced into the body of another personr wi thout such other person's consentr intoxicating liquors, a narcotic drug or dangerous drug.

Under A.R.B. section 13-3401:

1. "Administerlt means to applYr inject, or facilitate the inhalation or ingestion of a substance to the body of a person.

7 . "Deliver" means the actual , constructive r or attempted exchange from one person to another r whether or not there is an agency relationship.

29. "Transfer" means furnishr deliver or give away.


(Emphasis added) . Defendant asserts that the "two statutes must be

read in such a way as to give meaning to both of them." Because

section 13-1205(A) proscribes administering a dangerous drug

without another party's consent, he argues, section 13-3407(A) (5)

must be construed to require such consent.

We reject defendant's argument. In cases in which both a

general and a specific statute apparently apply, we have noted

" [i] t is generally accepted that where there is no conflict between

two statutesl a criminal offense may be prosecuted under either

statute where the facts are such that they fall within the

prohibitions of both." State v. Mussiahl 141 Ariz. 2121 214, 685

P.2d 1364, 1366 (App. 1984) (defendant properly charged with theft

of rental car despite statute dealing with failure to return rental

property) . See also State v. CuI veri 103 Ariz. 505, 507-081 446

P.2d 2341 236-37 (1968) (defendant properly charged with obtaining

money or property by bogus check despite statute proscribing

drawing a check on insufficient funds or no account); State v.

Ulmerl 21 Ariz. App. 378, 382-83, 519 P.2d 867, 871-72 (App. 1974)

(defendant properly charged with forgery despite statutes defining

credit card crimes). Defendant alleges no conflict between the

statutes and we find none. The existence of a lack of consent

element in section 13-1205(A) does not require us to imply a

consent element in section 13 - 34 07 (A) (7) . AccordinglYI we reject

the argument that denial of a judgment of acquitta~ was error.

Defendant also contends that the trial judge erred in denying

his request to instruct the jury on A.R.B. section 13-1205. The

judge properly denied the request. Because this offense contains

an element not present in A.R.B. section 13-3407(A) (5) 1 it was not


a lesser included offense. See State v. Celaya, 135 Ariz. 248,

251, 660 P.2d 849, 852 (1983). The trial court was not authorized'

to instruct the jury on a related offense which may have been

supported by evidence at trial. See State v. West, 176 Ariz. 432,

444, 862 P.2d 192, 204 (1993).

Defendant contends that the court erroneously admitted records

of R.T. 's"hospital visit. Defendant objected that the records were

hearsay and violated his right to confrontation because R. T. IS

treating physician was not available at trial.

We disagree. Defendant argues that hearsay statements

containing opinions of the treating physician were improperly

admi t ted under Arizona Rules of Evidence 803(4), the hearsay

exception governing statements for purpose of medical diagnosis or

treatment. This rule applies only to statements made by a patient

to a doctor, rather than to statements made by a doctor. Bulthuis

V. Rexall Corp., 789 F.2d 1315, 1316 (9th Cir. 1986). Rule 803(4)

supported only the admission of other statements in the medical

records, including those of R.T. and her mother relating to R.T. 's

condition. See United States v. Yazzie, 59 F.3d 807, 813 (9th Cir.

1995) (rule is not limited to declarations by patients) .

In admitting the hospital records, the court relied upon Rule

803(6), the business records exception to the hearsay rule. In

passing, defendant argues that this reliance was misplaced. He

cites State V." Hardy, 112 Ariz. 205, 207, 540 P. 2d 677, 679 (1975),

in which our supreme court found no error in admitting hospital

records under the business records exception, but noted that

II statements of hearsay and opinion" had been deleted. To the

extent that Hardy implied that opinions were inadmissible under the


business records exception, it is inconsistent with Rule 803(6)

itself, adopted after that case was decided, which applies to a

"record... of acts, events, conditions, opinions, or diagnoses"

(emphasis added) . See Morris K. Udall, et al., LAW OF EVIDENCE 284,

n. 12 (3d. ed. 1991) (suggesting that Hardy is "plainly overruled"

on this point by Rule 803(6) of the Arizona Rules of Evidence; see

also 4 Jack Weinstein and Margaret Berger, WEINSTEIN'S EVIDENCE, ~

803 (6) [06] at 803-222-223 (1988) (noting that medical opinions are

generally admissible under parallel federal rule) .

While Rule 803(6) overcomes the hearsay problem, it does not

provide that all opinions contained in the records are admissible

in the face of other evidentiary problems. Although defendant does

not focus his argument on this rule, he complains about the

following opinion attributed to the treating physician: liThe urine

drug screen . was positive for benzodiazepines, confirming

suspicion that she [R. T. ] had indeed been slipped some sort of drug

in the sparkling cider." (Emphasis added).

Whether the physician's opinion regarding the manner in which

R.T. ingested drugs is objectionable is problematic. That

statement may have been subject to exclusion under the provision of

Rule 803(6) stating that IIbusiness recordsll shall not be admissible

II to the extent that portions thereof lack an appropriate

foundation. II This objection was not presented to the trial court,

however, and was thus waived. We reject defendant's argument on

appeal that the opinion was inadmissible because it went to the

ultimate issue to be decided by the jury. See Rule 704, Ariz. R.

Evid.


We also find no violation of det:endant's right to

confrontation. Evidence does not violate the confrontation

guarantee of the state or federal constitutions if admitted under

a firmly rooted exception to the hearsay rule. State v. Hamilton,

177 Ariz. 403, 409, 868 P.2d 986, 992 (App. 1993). The exceptions

for business records and for statements made for medical diagnosis

or treatment are firmly rooted exceptions. White v. Illinois, 502

u.s. 346, 355-56 n.8 (1992) (statements for medical treatment);

State v. Petzoldt, 172 Ariz. 272, 276, 836 P.2d 982, 986 (App.

1991) (business records) .

Defendant also argues that the reasonable doubt instruction

was improper because it permitted the jury to render a guilty

verdict by applying a standard less rigorous than required by the

Due Process Clause of the federal and state constitutions. 'The

trial judge gave the Jury an instruction on reasonable doubt

derived from State v. Portillo, 182 Ariz. 592, 596, 898 P.2d 970,

974 (1995) . We rej ect defendant's argument because we have no

authority to disregard our supr~me court, which in Portillo

mandated the instruction. See City of Phoenix v. Leroy's Liquors,

Inc., 177 Ariz. 375, 378, 868 P.2d 958, 961 (App. 1993).

On appeal, defendant argues that the discharg~ of the original

jury, without objection from the State, precluded trial by a

different jury of the allegation of a prior conviction. We agree.

The trial judge discharged the jury promptly after receiving its

verdict and conducting a poll. The prosecutor did not object, even

though the State had filed an allegation of prior felony conviction

which, under the version of the enhancement statute then in effect,

was to be tried to the "trier of fact." See former A.R.S.


§ 13-604 (P) . Two days later, the State moved to have the

allegation of prior conviction tried by a newly empaneled jury

before sentencing. The court granted the motion. A different jury

later determined that defendant had been convicted of the prior

felony.

Our supreme court has stated:

A common element distinguishes those cases in which a second jury is allowed from those in which it is prohibited -- the State's responsibility for necessitating the second jury. If the State is not at fault in creating the need for the new jury, A.R.S. § 13604(K) and rule 19.1(b) (2) [Arizona Rules of Criminal Procedure] do not prohibit the use of a second jury to try the prior conviction allegation.2

State ex rel. Neely v. Sherrill (Segel son), 168 Ariz. 469, 472-73,

815 P.2d 396, 399-400 (1991). In State v. Johnson, 183 Ariz. 3581

360-611 903 p.2d 1116, 1118-19 (App. 1995), a case also governed by

former section 13-604(P) 1 we applied this analysis to a failure to

try to the jury a sentence enhancement allegation for crimes

committed while on pretrial release. We stated:

Our review of the record discloses that the state made no effort to prove defendant's release status and did not object when the trial jury was discharged. We do not believe that this is a case where the state is blameless. We therefore conclude that the state is precluded from another chance to prove Defendant's status.

Id. (emphasis added) .

Because the State failed" to object to the discharge of the

original jury in this case, it was error to try the allegation of

2 At the time Segel son was decidedl the requirement that the prior conviction be tried to the trier of fact was found in A.R.S. section 13-604(K).

Rule 19.1(b) (2), Arizona Rules of Criminal Procedure 1 states that "in all prosecutions in which a prior conviction is alleged

. . (2) [i] f the verdict is guilty 1 the issue of the prior conviction shall then be tried, unless the defendant has admitted the prior conviction."


prior conviction to a different jury. We recognize that, ln

granting the State's motion to empanel the second jury, the trial

judge stated: II II m not imposing blame on either side. II However, we

find no support in the record for the court's implicit conclusion

that the State was blameless. The deputy county attorney, who was

present when the jury returned its verdict, could easily have

objected to its discharge at that time. Moreover, as defendant's.

trial counsel pointed out, the prosecutor could have reminded the

court of the need to retain the jury even before the verdict was

returned in open court. The remedy for the trial court's error is

to remand the matter for resentencing without enhancement under

A.R.S. section 13-604(P). See State v. Crumley, 128 Ariz. 302,

306, .625 P.2d 891, 895 (1981).

CONCLUSION

We have not reviewed the entire record for fundamental error

because such review is no longer required. See State v. Smith, 184

Ariz. 456, 459, 910 P.2d 1, 4. (1996) . Defendant's conviction is

affirmed. We remand the matter for resentencing in accordance with

this decision.

CONCURRING:

~~ JON W. THOMPSON, Presiding Judge

'~7.~.


IN THEDIVISION 1 COURT OF APPEA1.S STATS

OF ARIZONA FILED JUL 1 6 1997

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(!Inurt nf ~pp£al$ STATE OF ARIZONA DIVISION ONE

Appellee,

)

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DEPARTMENT D

- STATE OF ARIZONA,

;\:\\.~~!. . 1 CA-CR 96-0231

? 't~\~. .' ''OV \:X'''''''' ~\ WILLIAM FLOYD SMITH,

Appellant.

MARICOPA County Superior Court No. CR 94-92467

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ORDER and MANDATEc..c:: rco

Grant Woods, The Attorney General ~By: Paul J. McMurdie, Chief Counsel, Criminal Appeals secti~

and Linda L. Knowles, Assistant Attorney General r0 Attorneys for Appellee Phoenix~

Dean W. Trebesch, Maricopa County Public Defender By: Carol A. Carrigan, Deputy Public Defender

Attorneys for Appellant

-c; ;::<;

Phoenix

The memorandum decision of this Court in the above matter was filed on June 5, 1997.

The time for the filing of a motion for reconsideration or petition for review has expired and no motion or petition was filed.

:IT :IS ORDERED in conformity with the memo~andum decision attached hereto.

:IT :IS FURTHER ORDERED that a certified copy of the foregoing ORDER and MANDATE and a copy of the memorandum decision of the Court were mailed to the Clerk of the Superior Court for MARICOPA County, Arizona, on July 16, 1997. A copy of the ORDER and MANDATE and a copy of the memorandum decision were mailed to the Honorable Louis A. Araneta, Judge, and a copy of the ORDER and MANDATE was mailed on said day to each party appearing or the attorneys of record; as well as the MARICOPA County Attorney.

(OVER)

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~. ~Case 2:04-cv-00573-FJM Document 33-2 Filed 08/11/2005 of 24

PHILIP E. TOCI CHIEF .,UDGE

GLEN D. CLARK CLERK OF THE COURT

(602) 542-4621

E. G. NOYES, JR. VICE CHIEF JUDGE

RUTH A. WILLINGHAM CHIEF DEPUTY

( i

SARAH D. GRANT THOMAS C. KLEINSCHMIDT NOEL FIDEL RUDOLPH J. GERBER EDWARD C. VOSS

""""" SUSAN A. EHRLICH ""'" RUTH V. MCGREGOR '\JEFFERSON L. LANKFORD tvlLLlAM F. GARBARINO

.'\ '\ j ;\!;HELDON H. WEISBERG

'\ ","JON W. THOMPSON --------- JAMES B. SULT

CECIL B. PATTERSON, JR. MICHAEL D. RYAN

JUDGES r'\ l~ ~

':;;:::::. I

QInurt of J\ppra:ls STATE OF ARIZONA

DIVISION ONE

STATE COURTS 6UILDING 1501 WEST

WASHINGTON STREET PHOENIX, ARIZONA 85007 '5

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July 16, 1997co -0 ::I%Ms. Judith Allen, Clerk Maricopa

County Superior Court 201 West Jefferson Street Phoenix, Arizona85003

t?

'" .r;:Dear Ms. Allen:

RE:

1 CA-CR 96-0231

STATE V. SMITHMARICOPA CR 94-92467

The following are enclosed in the above entitled and numbered cause:

x X X X X

Certified Copy of "ORDER" and "MANDATE" Copy of Memorandum Decision Instruments Minute Entries Reporter's Transcripts (12 vols., 11-22-94, 4-18-95, 9-25-95, 10-2-95, 10-3-95, 10-4-95, 10-5-95, 10-10-95, 10-12-95, 12-20-95, 12-21-95, 3-6-96) Exhibits (List # 1, 2, 3 in manila envelope, List # 6, 7, 8, 9, 11, 12, 13, 14, 25, 26, 27, 28A, 29, 33A, 34 in manila envelope) Confidential Criminal History (in manila envelope)

x

X

GLEN D. CLARK, CLERK

:JA~~,4 ~-,-o Enclosures (as noted) c: Ms. Linda L. Knowles

Ms. Carol A. Carrigan The Honorable Richard M. Romley, County Attorney The Honorable Louis A. Araneta, Judge Court Administrator's Office Ms. ~anice Draper, Department of Public Safety Department of Corrections, Offender Services

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EXHIBIT B


RICHARD M. ROMLEY MARICOPA COUNTY ATTORNEY ~'

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JJUDir~~lL6N; Clerk Ii

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By -= . . ,. ~"vLj \-/1- Y1.,"-.

Deputy

Brynner Brown BAR ID #: 014350 Deputy County Attorney Southeast Facility 222 East Javelina 2nd Floor Mesa, AZ 85210-6201 Telephone: 602 506-2640 Attorney for Plaintiff

QUADRANT C DR. 94-16125, MCSO

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

STATE OF ARIZONA, I"

NO. CR94 O,,

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Plaintiff,

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171 GJ 361

vs. INDICTMENT


Defendant. ADMINISTERING DANGEROUS DRUGS, A CLASS 2 FELONY

The Grand Jurors of Maricopa County, Arizona, accuse WILLIAM FLOYD

SMITH, on this 11th day of August, 1994, charging that in

Maricopa County, Arizona:

WILLIAM FLOYD SMITH, on or about the 7th day of July, 1994,

knowingly administered Halcion, a dangerous drug, in violation of A.R.S.

§§ 13-3401, 13-3407, 13-3418, 13-701, 13-702, and 13-801.

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ru " /' ," < '(J 7 ~ ,0 Lc("c-{ ~")~.\' (. (itA True Billlt)

RICHARD M. ROMLEY MARICOPA COUNTY ATTORNEY

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K' .$1. A' ~/. ./ ,",7fJ ~A../ '/ / U i ,./1-I/.././tJt:r-, Brynner Brown ~ v

DEPUTY COUNTY ATTORNEY

Date: August 11, 1994

(~\2.,Q~~~:~~ C) U., --------- ,cs~-J~~~><::/S~JiTRE . )" FOREMAN OF THE GRAND JUa~

/

kd/171GJ361/AO

~A\:3\)f;;)'f'~'~~'I:1, \~~t'}J~

( -~\) , ')Case 2:04-cv-00573-FJM Document 33-2 Filed 08/11/2005 of 24

EXHIBIT C


; tS~"\t

\",./i/ /) RICHARD M. ROMLEY ~"><- MARICOPA COUNTY ATTORNEY

William T. Winter Deputy County Attorney BAR ID #: 011772 Southeast Facility 222 East Javelina 2nd Floor Mesa, AZ 85210-6201 Telephone: 602 506-2988 Attorney for Plaintiff

:; i~li ML E:I. CU:":H1-\

~Z;J{,..- DE P

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FilED

[994 SEP 2[ P}.f 4: 29



Plaintiff,

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STATE'S ALLEGATION OF HISTORICAL PRIORS

THE STATE OF ARIZONA, NO. CR 94-92467

vs.


Defendant. (Assigned to the Honorable Barbara Jarrett, Div. T)

The State of Arizona, by and through undersigned counsel, pur

suant to A.R.S. § 13-604(A),(B),(C),(D),(G),(H),(T) and Rule 13.5,

Arizona Rules of Criminal Procedure, amends the Indictment in CR

94-92467 to allege the following historical non-dangerous felony

conviction:

On or about May 23, 1994, Defendant was previously convicted

of the crime of Indecency with a Child, in the District Court of

Harris County, State of Texas, in Cause No. 387216.

Submitted September L.l , 1994.'

RICHARD M. ROM LEY

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ATTORNEY

BY . ..,. :~~~ William T. Winter

Deputy County Attorney r~-:;"~~...~ €


Copy mailedjacli7er6G September -ZJ ' 1994, to: The Honorable Barbara Jarrett Judge of the Superior Court

Gregg H. Griffith 45 W. Jefferson, Suite 412 Phoenix, AZ 85003 Attorney fQ~Defendant

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BY ~'-'-~ -.l,)=o ~ -: - ') William T. Winter-Deputy County Attorney

WWjbp9.19.5


EXHIBIT D


RICHARD M. ROM LEY / 5":;//..,,;', MARICOPA COUNTY ATTORNEY

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William T. Winter Deputy County Attorney BAR ID #: 011772 Southeast Facility 222 East Javelina 2nd Floor Mesa, AZ 85210-6201 Telephone: 602 506-2988 Attorney for Plaintiff

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THE STATE OF ARIZONA, )

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(Assigned to the Honorable Barbara Jarrett, Div. T)

NO. CR 94-92467 Plaintiff,

vs. STATE'S NOTICE OF INTENT TO USE DEFENDANT'S OTHER CRIMES, WRONGS OR ACTS PURSUANT TO RULE 404(b), ARIZONA RULES OF EVIDENCE


Defendant.

The State of Arizona hereby gives notice to the Defendant that

the State intends to elicit testimony concerning Defendant's other

crimes, wrongs or acts. Specifically, State's witnesses, Jennifer

Anne Jackson, Leslie Manning, Tom Manning and Susan Burgdorf, Adult

Probation Officer, Harris County, Texas, will testify regarding

events which occurred on or about July 31, 1983 through August 2,

1993. Specifically, the State intends to produce evidence about

how the defendant drugged an eleven year old minor female .with a

sleeping agent and then sexually assaulted her.

This testimony will be used pursuant to Arizona Rules of

Evidence 404(b) in order to prove Defendant's motive, opportunity,

intent, preparation, plan, knowledge, identi ty or absence of

mistake or accident.

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Submitted Sep~ember~, 1994.

RICHARD M. ROMLEY MARICOPA COUNTY ATTORNEY

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BY" '~--~ W~l iam T. Win '

Deputy County Attorney

Copy mailed/Qel~ered-September ~ , 1994, to:

The Honorable Barbara Jarrett Judge of the Superior Court

Gregg H. Griffith 45 W. Jefferson, Suite 412 Phoenix, AZ 85003

::~~~.William T. Winter Deputy County Attorney WW/bp9.20.1


united states district court district of arizona · and linda l. knowles attorneys for appellee...

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