State v. Magby
| Citation | 113 Ariz. 345,554 P.2d 1272 |
| Decision Date | 20 July 1976 |
| Docket Number | No. 3112,3112 |
| Parties | The STATE of Arizona, Appellee, v. Bobby Reed MAGBY, Appellant. |
| Court | Arizona Supreme Court |
John M. Neis, Pima County Public Defender, by Anne-Marie Brady, Asst. Public Defender, Tucson, for appellant.
This is an appeal by defendant, Bobby Reed Magby, from a jury verdict and judgment of guilt to the crime of first degree murder, A.R.S. §§ 13--451 and 452, with a sentence of life in the Arizona State Prison without the possibility of parole prior to the serving of 25 calendar years in the state prison.
Defendant raises the following questions on appeal:
1. Was it error to permit defendant's probation officer to testify concerning statements made by defendant while in custody and without first being given his Miranda warnings?
2. Were certain statements made by Magby inadmissible because he was intoxicated?
3. Did the court err in permitting a psychiatrist who examined defendant to determine his competency to stand trial to also testify as to statements made by Magby concerning the crime.?
4. Did the court err in admitting the testimony of a psychiatrist who examined defendant concerning his competency to stand trial to also testify as to defendant's sanity at the time of the crime?
5. Was the first degree murder instruction an incorrect statement of the law?
6. Does the evidence support a verdict of first degree murder?
The facts necessary for a determination of this matter are as follows. On the morning of 22 December 1973, Magby and his friend, wayne siegfred, began drinking a mixture of vodka and orange juice from a wine jug. Later that morning, after replenishing their vodka and orange juice, Magby and Siegfred went to Carl's Body Shop where they joined several other men, including the victim Danny Clay. The men spent their time drinking, talking and shooting a sling shot.
Magby and Clay got into a fight about 12 noon. Magby punched the victim twice before Clay retaliated and knocked Magby to the ground. Clay and another man, Larson, picked Magby up and helped him into his van. While assisting Magby, Clay apologized for faving hit him.
Magby later emerged from the van carrying a sawed-off shotgun. Magby tapped Clay on the shoulder to get his attention, yelled an obscenity and shot the victim in the face from a distance of less than six feet. The entire right side of Clay's head was blown off.
An eyewitness, Ralph Vogler, testified as follows:
'Q What, if anything, happened after he came around from the area of the van and the Buick?
'A Wayne tried to get a drink from him. He backed off and let Wayne have the jug for a drink and then he backed off over here a little bit and then Bobby come out. We sit here talking, me and Loser, sit here talking and Bobby came around between the van and walked around Danny Clay and tapped him on the shoulder and said a couple of words and had a shotgun in his hand raised up, pointed at his nose and the hammer was cocked.
I stepped back trying to bet behind bobby and we was right next to the wrecker and then lit off with the shotgun.
'Q Did he say anything before that?
'A Used a few foul words.
'Q What did he say?
'A 'Hey, mother-fucker,' and then hesitated a little bit and blew him away.'
And Magby's friend 'Loser' testified:
'Q Mr. Siegfred, at this point simply tell us as best you can remember without regard to what other people told you what you remember happening when you came out after making the telephone call and what in fact you did.
'Q Now, just before you saw the barrel and heard the shot, did Mr. Clay raise his hand at all or did he do anything with his hands?
'A Well, he was holding the jug.
'Q Did he raise his hand up with the jug?
'A (No response)
'A One finger on it.
'A Well, from what I heard, kind of relaxed, holding the jug like this and one arm down (indicating).
'Q Did you hear anybody say anything just before the shot was fired?
'A Yes.
'Q Who was that?
'A Bobby.
'Q How much time elapsed between the time that he made that statement until the time when you actually heard the boom?
'A Well, all at the same time.'
And:
'Q Did you actually see Mr. Magby after the shot was fired?
'A A few seconds afterwards, yes.
'Q Was he holding the shotgun at this time?
'A Yes.'
Magby then fled on foot. About one hour later he was apprehended by the police when he was discovered passed out in a truck.
An information was filed on 3 January 1974 charging Magby with the first degree murder of Daniel Joseph Clay. On 2 December 1974, the jury found Magby guilty of first degree murder. From this verdict and the judgment of the court defendant appeals.
Defendant argues that it was error to permit his probation officer. John Burch, to testify concerning statements made by defendant while in custody. We agree.
Two days after defendant was arrested, Burch visited him at the jail and without giving him the Miranda warnings, asked him about the shooting of Clay. At the Trial, Burch testified as follows:
'Q And, did you start asking him questions at this time?
'A I asked him to tell me if he would, what transpired, what happened, why he was there.
'Q And what did he say?
'A He related to me in his own words more or less what happened.
'Q What specifically did he say about the shooting incident itself?
'A Just the fact that he had gone to the truck, gotten the gun, and returned and shot the guy.'
We have held that statements to a probation officer about crimes committed during the term of probation are admissible in a hearing to revoke probation, State v. Fimbres, 108 Ariz. 430, 501 P.2d 14 (1972), and this would be true regardless of whether the probationer was read his Miranda rights prior to such admissions. We have also held that a confession of a crime to a probation officer without Miranda warnings after conviction of that crime may be used by the judge in sentencing. State v. Jones, 110 Ariz. 546, 521 P.2d 978 (1974). We do not believe, however, that in-custody statements about a later crime made to a probation officer without Miranda warnings should be admissible in the State's case when the probationer is later tried for that crime. We agree with the Kansas Supreme Court:
State v. Lekas, 201 Kan. 579, 584, 442 P.2d 11, 16 (1968).
Although one jurisdiction has held that a defendant, by accepting probation, in effect, makes a continuous waiver of his Miranda rights, Nettles v. State, 248 So.2d 259 (Fla.App.1971), we believe that Miranda must be followed before statements to a probation officer concerning a new crime may be admitted at the trial of that new crime. The Fifth Circuit has stated:
United States v. Deaton, 468 F.2d 541, 544 (5th Cir. 1972). See also State v. Gallagher, 38 Ohio St.2d 291, 313 N.E.2d 396 (1974), vacated and remanded, --- U.S. ---, 96 S.Ct. 1438, 47 L.Ed.2d 722.
The admission of Burch's testimony was error. WERE CERTAIN STATEMENTS BY DEFENDANT INADMISSIBLE BECAUSE HE WAS INTOXICATED?
During the time defendant was being 'booked' at the jail, he was read his Miranda rights. When asked if he would answer some questions he responded by asking if he could make a telephone call which he was allowed to do on the phone in the station house. He called his girl friend and made several admissions which were overheard by the police officers who testified to the conversation at the trial. Defendant is reported to have said to his girl friend as to why he was in jail:
'Because I just blew some mother-fucker away * * * because he was beating on my head and I don't let no mother-fucker beat on my head.'
Later, when defendant gave blood for a blood alcohol test, he was asked if he would answer some questions and refused but later made other admissions stating:
'I think this whole thing should be considered self-defense. The man knocked me down twice. I told him not to do it Defendant asserts that since he was intoxicated at the time he made these statements to his girl friend and the police, these admissions were inadmissible at his trial. We have stated:
again. He looked like he was going to do it again so I got my gun and blew his fucking head off. Lord help me, but that is what I did. I blew his fucking head off.'
'* * * proof that the accused was intoxicated at the time he confessed his guilt will not, without more, prevent the admissibility of his confession. * * *' State v. Clark, 102 Aiz. 550, 553, 434 P.2d 636,...
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