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July 15, 1998 - Tucson, Arizona

Twice-condemned man gets 3rd trial in '88 rape-murder

by Howard Fischer

Arizona Daily Star

 Click Here to Read Supreme Court Opinion

PHOENIX - A man sentenced to death twice in the beating, rape and murder of a Tucson woman is entitled to a third trial. The Arizona Supreme Court ruled yesterday that Toribio Rodriguez did not get a fair trial two years ago because the judge refused to tell the jurors they could acquit him if they believed his alibi. The justices said that error might have affected the verdict, forcing them to throw out the convictions.

The ruling comes nearly two years after the high court voided Rodriguez's prior murder conviction. That was after the justices concluded Tucson police violated his rights by questioning him and that those statements were used to gain the first conviction. A third trial is anticipated.

Both convictions stem from the 1988 murder of Dawn Dearing, 38, whose body was found at her southside apartment. She was stabbed 26 times, apparently with a butcher knife blade that was found next to the body. The handle of the knife was found inside her vagina. A hot electric curling iron also had been forced into her vagina. It was not until 1993 when police received an anonymous call through the 88-CRIME hot line that they focused on Rodriguez. The caller, who never was identified, said Rodriguez returned home the night of the murder with blood on his clothes and with some of the victim's belongings.

Detectives said Rodriguez had been arrested about a week before near the Irvington Road crime scene on a charge of indecent exposure. Tucson police obtained a warrant allowing them to detain Rodriguez for three hours to obtain blood and hair samples, photographs and fingerprints.

The Supreme Court voided his first conviction because police went beyond the bounds of the court order and interrogated Rodriguez without advising him of his rights. The justices said statements Rodriguez gave police should not have been admitted at his trial.

At the latest trial, prosecutors introduced evidence that a palm print found on the knife blade belonged to Rodriguez. That print was the only physical evidence linking him to the crime.

Rodriguez's defense was that he could not have committed the murder because he was at work at the time of the killing. Based on that, his attorney asked Superior Court Judge Richard Nichols to instruct jurors that if they had a reasonable doubt Rodriguez was present at the crime, they must find him innocent. But Nichols refused.

Justice Ruth McGregor, writing yesterday's unanimous ruling, said more than enough evidence supported an alibi defense. One person testified he saw the victim alive late in the evening of Aug. 24. A neighbor heard the victim's voice, arguing with an unidentified man, about 2 a.m. the following day. The victim did not report to work at 6 a.m. that day. Rodriguez testified he worked from 12:34 a.m. until 4:56 a.m. Aug. 25 and that he had no car to drive to the apartment during work time. He also said he went home and to bed immediately after he clocked out. McGregor said Rodriguez was entitled to have jurors instructed in the alibi defense. At his first trial, his attorney suggested that Rodriguez may have left his palm print on the butcher knife while attending a social visit or barbecue at the victim's apartment building.

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