ATTORNEY GENERAL
2 (FIRM STATE BAR No. 14000)
3 AARON J. MOSKOWITZ 4 5
II
ASSISTANT ATTORNEY GENERAL CRIMINAL ApPEALS SECTION 1275 W. WASHINGTON PHOENIX, ARIZONA 85007-2997
II
TELEPHONE: (602) 542-4686
(STATE BAR NUMBER 022246)
6
RESPONDENTS
II
ATTORNEYS
FOR
7 8 9 10 11 12 13 14
15 16 17 18 19 20 21 22 23 24 25 26
UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA
WILLIAM FLOYD SMITH, Petitioner,
CIV 04-573-PHX-FJM (MS)
-vs
DORA B. SCHRIRO, et aI., Respondents.
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 27 State's Allegation of Historical Priors
28
Case 2:04-cv-00573-FJM Document 33-2 Filed 08/11/2005 Page 1 of 24
-
--- -----------------
--
-
1 II TERRY GODDARD
ATIORNEY GENERAL II (FIRM STATE BARNo. 14000)
2
3
II
AARON J. MOSKOWITZ
ASSISTANT ATTORNEY GENERAL
4 II W. WASHINGTON PHOENIX, 5
ARIZONA 85007-2997
II
CRIMINAL ApPEALS SECTION 1275
TELEPHONE: (602) 542-4686
(STATE BAR NUMBER 022246)
6
RESPONDENTS
II
ATIORNEYS
FOR
7 8 9 10 11 12 13
UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA
WILLIAM FLOYD SMITH,
Petitioner,
-VS
CIV 04-573-PHX-FJM (MS)
DORA B. SCHRIRO, et aI.,
14 15 16 17 18 19 20 21 22
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
23 24 25 26 27
Case 2:04-cv-00573-FJM 28 Document 33-2 Filed 08/11/2005 Page 2 of 24
EXHIBIT A
Case 2:04-cv-00573-FJM Document 33-2 Filed 08/11/2005 Page 3 of 24
~
STATE OF ARIZONA,
,
~~~Lf
FILED
IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE
JUN 5 1997
°
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1 CA-CR 96-0231
Appellee,
DEPARTMENT D
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c:: r
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WILLIAM FLOYD SMITH,
Appellant..
°;>1.:
MEMORANDUM DECISION (Not for Publication Rule 111, Rules of co the Arizona Supreme Court) -0
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from the Superior Court of Maricopa County
Appeal
CJ rn rn :;::J -;:)/.
Cause No. CR 94-92467
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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 Phoenix Attorneys for Appellee 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 a class 2 felony,
sentence for administering a dangerous drug, enhanced by one historical prior felony conviction. defendant's
.enhancement.
We affirm without
conviction
but
remand
for
resentencing
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
~
Case 2:04-cv-00573-FJM
Document 33-2
Filed 08/11/2005
Page 4 of 24
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 pool at his house. sunbathe by the
When R.T. replied that she had no swimsuit, Defendant
defendant suggested that she wear her bra and underwear.
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, drove her to his house.
1995, defendant picked up R.T.
and
Defendant offered her a drink of hot
She asked instead for sparkling
chocolate, which R.T. declined.
apple cider.
Defendant prepared the drink in his kitchen, outside R.T. drank defendant
of R.T. 's sight, and brought it to her in a coffee cup.
the cider quickly,
provided.
then consumed
another cup which
When R.T. rose from her seat, she felt dizzy. She asked Defendant replied that R.T. complained
defendant if the cider contained alcohol.
it did not, and he showed her the cider bottle.
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.
brought R. T.
After three
or four minutes,
he
to the phone.
R.T. sounded IIspacyll and told her
R.T. 's mother said she would pick
mother she had been sleeping.
her up but, before she could leave her house, defendant brought
Case 2:04-cv-00573-FJM
2 Document 33-2
Filed 08/11/2005
Page 5 of 24
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
Statutes
Annotated
("A.R.S.II)
section
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 Police recovered
I
fizzes briefly and then is nearly imperceptible.
/i! ! ,
an empty Halcion prescription bottle from defendant When interviewed by police,
s kitchen..
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 He had talked her into lying
that she had started to act IIgoofy.1I
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. I did, she is lying like hell." R.T. had made
And if she says
When police told defendant that defendant replied: "Okay.
no
such
accusation,
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
(j ,
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.
Case 2:04-cv-00573-FJM
3 Document 33-2
Filed 08/11/2005
Page 6 of 24
The jury found defendant guilty.
discharged,
Although that
jury was
the
trial
judge permitted
the
State
to
try
the
allegation of historical prior conviction before a newly impaneled
jury, which
defendant
found the allegation a
presumptive
true.
The
judge
sentenced
to
term
of
9.25 years
imprisonment.
Defendant filed a timely notice of appeal. the trial court erred:
Defendant asserts that
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.
13-3407 (A) (5)
Defendant was indicted under A.R.S. section
(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 Because we conclude that consent is
lack of evidence of consent.
not an element of the offense,
court's denial of the motion. Defendant's principal argument
we find no error in the trial
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
Case 2:04-cv-00573-FJM
4 Document 33-2
Filed 08/11/2005
Page 7 of 24
"administering r" involve more t.han one person.
3407 (A) (7) .
See A.R.B.
§ 13 or a
Defendant
asserts
that
because
a
"sale"
"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.
none of the
Under.
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"
Ittransferlt
in section
"deliverlt
13-3401 (1) ,
in
section
13 -3401 (29)
r
and
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.
attempted exchange from one person to another
7 . "Deliver" means the actual , constructive r or r whether or not there is an agency relationship. 29. "Transfer" means furnishr deliver or give away.
Case 2:04-cv-00573-FJM
5 Document 33-2
Filed 08/11/2005
Page 8 of 24
(Emphasis added) .
Defendant asserts that the "two statutes must be
read in such a way as to give meaning to both of them."
Because drug
section
13-1205(A)
proscribes
administering
a
dangerous
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 we have noted
general and a specific statute apparently apply,
"
[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
State v.
drawing a check on insufficient funds or no account);
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 The existence of a lack of consent does not require us
statutes and we find none.
element in section 13-1205(A)
consent element in section 13
-
to imply a
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 The his request to instruct the jury on A.R.B. section 13-1205. 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
6
Case 2:04-cv-00573-FJM
Document 33-2
Filed 08/11/2005
Page 9 of 24
a lesser included offense. 251, 660 P.2d 849, 852 (1983).
See State v.
Celaya,
135 Ariz. 248,
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 improperly the hearsay
containing opinions
admi t ted under
of the treating physician were
803(4),
Arizona Rules of Evidence
exception governing statements for purpose of medical diagnosis or
treatment.
This rule applies only to statements made by a patient Bulthuis
Rule 803(4)
to a doctor, rather than to statements made by a doctor. V. Rexall Corp., 789 F.2d 1315, 1316 (9th Cir. 1986).
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 He
passing, defendant argues that this reliance was misplaced. 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
Case 2:04-cv-00573-FJM
7 Document 33-2
Filed 08/11/2005
Page 10 of 24
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
I I
to the extent that portions thereof lack an appropriate
II
foundation.
This objection was not presented to the trial court, We reject defendant's argument on
however, and was thus waived.
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.
8
Case 2:04-cv-00573-FJM
Document 33-2
Filed 08/11/2005
Page 11 of 24
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. 177 Ariz. 403, 409, 868 P.2d 986, 992 (App. 1993).
State v. Hamilton,
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
State v. 1991)
Petzoldt,
(1992) 172 Ariz.
.
(statements for medical treatment);
272, 276, 836 P.2d 982,
986
(App.
(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 doubt
trial judge gave
the Jury an
instruction on reasonable
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.
9 Case 2:04-cv-00573-FJM Document 33-2 Filed 08/11/2005 Page 12 of 24
§ 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 enhancement allegation
try to
the jury a
sentence
for crimes
committed while on pretrial release.
We stated:
Our review of the record discloses that the effort to prove defendant's release status and object when the trial jury was discharged. believe that this is a case where the state is therefore conclude that the state is precluded chance to prove Defendant's status.
state made no did not We do not blameless. We from another
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 13604(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."
Case 2:04-cv-00573-FJM
10 Document 33-2
Filed 08/11/2005
Page 13 of 24
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,
affirmed. 910 P.2d 1, 4. (1996) .
Defendant's conviction is
We remand the matter for resentencing in accordance with
this decision.
CONCURRING:
JON W. THOMPSON, Presiding Judge
~~
'~7.~. 11
Case 2:04-cv-00573-FJM Document 33-2 Filed 08/11/2005 Page 14 of 24
IN THE
DIVISION 1 COURT OF APPEA1.S STATS OF ARIZONA
FILED JUL 1 6 1997
(!Inurt nf ~pp£al$
--------------- " , \ ~.",= :<
.
STATE OF ARIZONA
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DIVISION ONE
B~~~.CLeRK
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STATE OF ARIZONA, Appellee,
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1 CA-CR 96-0231
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DEPARTMENT D
.' ''OV \:X'''''''' ~\ WILLIAM FLOYD SMITH,
Appellant.
ORDER
) )
MARICOPA County Superior Court No. CR 94-92467
1. .0 c.. -J c::
and MANDATE
r
co
-0
Grant Woods, The Attorney General By: Paul J. McMurdie, Chief Counsel, Criminal Appeals secti~
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and
Linda L. Knowles, Assistant Attorney General
Attorneys for Appellee Dean W. Trebesch, Maricopa County Public Defender By: Carol A. Carrigan, Deputy Public Defender Attorneys for Appellant
Phoenix~
-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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Document 33-2
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Page 15 of 24
(;cr
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PHILIP E. TOCI CHIEF .,UDGE E. G. NOYES, JR. VICE CHIEF JUDGE 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 ;\!;HELDON H. WEISBERG .'\'\ ","JON W. THOMPSON --------- JAMES B. SULT CECIL B. PATTERSON, JR. MICHAEL D. RYAN JUDGES
GLEN D. CLARK CLERK OF THE COURT RUTH A. WILLINGHAM CHIEF DEPUTY (602) 542-4621
QInurt of J\ppra:ls
STATE OF ARIZONA
DIVISION ONE STATE COURTS 6UILDING 1501 WEST WASHINGTON STREET PHOENIX, ARIZONA 85007
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July 16, 1997 co
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Ms. Judith Allen, Clerk Maricopa
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County Superior Court 201 West Jefferson Street Phoenix, Arizona 85003 Dear Ms. Allen:
, cr'" ~.:;:: i " .-<'
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RE :
1 CA-CR 96-0231 STATE
V. SMITH
MARICOPA 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, 10-295, 10-3-95, 10-4-95, 10-5-95, 10-10-95, 10-12-95, 12-20-95, 12-2195, 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
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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Case 2:04-cv-00573-FJM
Document 33-2
Filed 08/11/2005
Page 16 of 24
vJ; , .. ,.....:
EXHIBIT B
Case 2:04-cv-00573-FJM
Document 33-2
Filed 08/11/2005
Page 17 of 24
RICHARD M. ROMLEY MARICOPA COUNTY ATTORNEY
Brynner Brown BAR ID #: 014350 Deputy County Attorney Southeast Facility 222 East Javelina 2nd Floor Mesa, AZ 85210-6201 Telephone: 602 5062640 Attorney for Plaintiff
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JJUDir~~lL6N; Clerk Ii
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QUADRANT C DR. 94-16125, MCSO IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF MARICOPA NO. CR94 171 GJ 361 INDICTMENT
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STATE OF ARIZONA,
Plaintiff,
vs.
WILLIAM FLOYD SMITH,
Defendant.
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ADMINISTERING DANGEROUS CLASS 2 FELONY
DRUGS,
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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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RICHARD M. ROMLEY MARICOPA COUNTY ATTORNEY
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Date:
August 11, 1994
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FOREMAN OF THE GRAND JUa~
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Brynner Brown
kd/171GJ361/AO DEPUTY COUNTY ATTORNEY
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Case 2:04-cv-00573-FJM
Document 33-2
Filed 08/11/2005
Page 18 of 24
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EXHIBIT C
Case 2:04-cv-00573-FJM
Document 33-2
Filed 08/11/2005
Page 19 of 24
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\",./i/ /) RICHARD M. ROMLEY
~"><- 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 852106201 Telephone: 602 506-2988 Attorney for Plaintiff
FilED
[994 SEP 2[ P}.f 4: 29
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF MARICOPA
THE STATE OF ARIZONA,
Plaintiff,
vs.
WILLIAM FLOYD SMITH,
Defendant.
) ) ) ) ) ) ) ) ) )
NO. CR 94-92467
STATE'S ALLEGATION HISTORICAL PRIORS OF
(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 A CO LEY M. ROM
ATTORNEY
MAR:~
. .
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BY . ..,.
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William T.
Winter
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Case 2:04-cv-00573-FJM
r~-:;"~~ Deputy County AttorneyPage 20 of .24 Document 33-2 Filed 08/11/2005
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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
---BY ~'-'-~ -.l,)=o -: William T. Winter-Deputy County Attorney WWjbp9.19.5
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Case 2:04-cv-00573-FJM
2 Document 33-2
Filed 08/11/2005
Page 21 of 24
EXHIBIT D
Case 2:04-cv-00573-FJM
Document 33-2
Filed 08/11/2005
Page 22 of 24
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DEP
/ 5":;//..,,;', MARICOPA COUNTY ATTORNEY
RICHARD M. ROM LEY
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199~ Sf? 21 PM 4: 29
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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
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
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IN AND FOR THE COUNTY OF MARICOPA
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THE STATE OF ARIZONA,
Plaintiff,
)
NO. CR 94-92467
) ) ) ) ) )
(Assigned to the Honorable Barbara Jarrett, Div. T)
vs.
WILLIAM FLOYD SMITH,
Defendant.
STATE'S NOTICE OF INTENT TO USE DEFENDANT'S OTHER CRIMES, WRONGS OR ACTS PURSUANT TO RULE 404(b), ARIZONA RULES OF EVIDENCE
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,
mistake or accident.
plan,
knowledge,
identi ty or
absence
of
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Document 33-2 Filed 08/11/2005 ~pE:\0Jl:~7a Page 23 of 24 c.y-;
Case 2:04-cv-00573-FJM
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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
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Copy mailed/Qel~eredSeptember ~ , 1994, to: The Honorable Barbara Jarrett Judge of the Superior Court Gregg H. Griffith 45 W. Jefferson, Suite 412 Phoenix, AZ 85003
::~~~.
William T. WW/bp9.20.1 Winter Deputy County Attorney
Case 2:04-cv-00573-FJM
2 Document 33-2
Filed 08/11/2005
Page 24 of 24
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