State v. Hatton

• Citation: 568 P.2d 1040,116 Ariz. 142
• Decision Date: 06 July 1977
• Docket Number: No. 3405,3405
• Parties: STATE of Arizona, Appellee, v. John Richard HATTON, Appellant.
• Court: Supreme Court of Arizona

Page 1040

568 P.2d 1040

116 Ariz. 142

STATE of Arizona, Appellee, v. John Richard HATTON, Appellant.

No. 3405.

Supreme Court of Arizona In Banc.

July 6, 1977.

Bruce E. Babbitt, Atty. Gen., by William J. Schafer III, Chief Counsel, Galen H. Wilkes, Asst. Atty. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender, by Michael G. Sullivan, Deputy Public Defender, Phoenix, for appellant.

STRUCKMEYER, Vice Chief Justice.

John Richard Hatton was convicted of two counts of first degree murder and sentenced to life imprisonment on each count. He appeals. Judgments affirmed.

On the evening of November 6, 1974, appellant and his wife played cards and drank at their neighbors' Canlen House apartment until about midnight. He then went to the Yucca Tavern, a local bar, taking along a .38 caliber handgun. After the bar closed, appellant met two boys at a Shop N Go store near his home and stopped to talk with them. Later he was seen with them behind a nearby laundromat at about 1:30 a. m. Around 1:45 a. m., he was seen entering and leaving his apartment carrying a bundle which, according to the witness, could have been clothing.

At about 5:00 a. m. of the morning of November 7th, after a telephone call from appellant's wife, two Tempe policemen went to the Canlen House Apartments. Appellant met the officers when they arrived. He directed them to a bathhouse where they found the nude bodies of two 12-year-old boys. Both had been shot in the head at some time in the early morning hours, probably between 1:30 a. m. and 2:00 a. m. One of the victims was still alive, but died three hours later.

At about 6:30 a. m., Officer John Hahn of the Tempe police, an investigating officer on the case, talked extensively to appellant in his apartment. Although appellant had consumed considerable alcohol over the previous ten hours, the record does not show it substantially impaired his faculties. After talking with appellant, the officer asked him for his clothes and shoes with which to make certain tests. Appellant became angry, refused to give him his shoes, and insisted that the police get a search warrant. When the police attempted to execute a warrant for the search of appellant's automobile, he refused to permit the search and it became necessary to place him under arrest for obstructing justice. A few weeks after appellant's release from jail on the charge of obstructing justice, he went to Chicago and was in Chicago when the Tempe police called him and told him he had been indicted for murder and asked him to surrender to the Chicago police. Instead, appellant went to Florida, from which state he was eventually returned to Arizona.

As we view the record, on some fifteen occasions in Arizona appellant made statements which concerned the homicides, and on five occasions he discussed at least some of the facts with the Florida police. He contends that all of his conversations with the Tempe and Florida police should have been suppressed.

Appellant does not point to the exact matters, except in a few particulars, which he feels should have been suppressed. Those which might have had some effect on the jury's verdict are: Appellant admitted that he had seen and talked with the victims at a Shop N Go store early in the morning of November 7th and he acknowledged that he had had a .38 at the Yucca Tavern. A number of inconsistent statements regarding the gun were made by him. Very damaging was a statement to the Florida police that he did not want to be incarcerated at the county jail, because "if they found out what he did someone would kill him."

Appellant first was questioned at the scene of the homicides concerning the circumstances surrounding his finding the bodies of the two boys. Thereafter, at about 6:30 a. m., Officer Hahn of the Tempe police talked to appellant in his apartment. At that time the police considered appellant as a suspect in the case. He was asked to relate to the officers what he had done on the evening of November 6, 1974 and the morning of November 7th until he found the two murdered youths. The questioning took place in appellant's apartment in a relatively congenial atmosphere with his wife, children, and one other policeman present. One policeman previously on the scene indicated to appellant that he was suspected, and Officer Hahn acknowledged that he had sought to obtain incriminating statements from him. However, though it is not dispositive of whether the appellant was in custody, a short time before the questioning the Tempe police officer who had been assigned to keep him under surveillance made it clear to appellant that he was free to come and go as he pleased, although he would be followed.

Miranda warnings become a requirement only when a defendant is in custody or in fact is not free to leave the place of interrogation. Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (per curiam); Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976). We do not find that there was here a "custodial interrogation."

"By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706 (1966).

The test is: would a reasonable man feel that he was deprived of his freedom of action in any significant way. See United States v. Bekowies, 432 F.2d 8 (9th Cir. 1970); United States v. Hall, 421 F.2d 540 (2d Cir. 1969), cert. denied, 397 U.S. 990, 90 S.Ct. 1123, 25 L.Ed.2d 398 (1970); Lowe v. United States, 407 F.2d 1391 (9th Cir. 1969); People v. Arnold, 66 Cal.2d 438, 58 Cal.Rptr. 115, 426 P.2d 515 (1967). After examining the evidence, we do not think a reasonable man would have believed he was deprived of his freedom in any significant way.

While it is true that the United States Supreme Court has determined that there are circumstances in which a person not under arrest who is interrogated in his own home may be in custody, Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969), generally, interrogating a person in his home is not the type of atmosphere to be held of questionable validity. See McMillian v. United States, 399 F.2d 478 (5th Cir. 1968). Further, the questioning was still investigatory rather than accusatory. That appellant was a suspect or that the investigation had focused on him when he was questioned does not alone establish custodial interrogation. Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976); State v. Bainch, 109 Ariz. 77, 505 P.2d 248 (1973). The element of deprivation of freedom of action must be present.

After appellant was questioned, the police withdrew and returned at about 9:00 a. m. with a search warrant for his apartment and his automobile. Appellant did not object to the search of his apartment, but so strenuously resisted the search of his automobile that he was placed under arrest for obstructing justice. At that time he was read his Miranda rights. After he was read his Miranda rights, he indicated he did not want to discuss the crime further. But about five hours later the police brought him out of his jail cell to talk with him. He was again advised of his Miranda rights and at that time he related again the facts of what had happened the night before substantially as he had told the police at his home earlier in the day. He added a few more details to his story and there were some discrepancies between this and his earlier statement. After he told the police that he did not want to talk about the matter any more, the police immediately ceased any further questioning.

While Miranda provides specifically that a custodial interrogation must cease when requested by a suspect, 384 U.S. at 445, 86 S.Ct. at 1612, 16 L.Ed.2d at 707, in Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), it was held that Miranda cannot be read to "create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject." Id. at 102-03, 96 S.Ct. at 326, 46 L.Ed.2d at 321. Questioning is permissible as long as a suspect's right to cut off questioning is "scrupulously honored."

Appellant was returned to his cell at about 4:00 p. m. and no one talked to him until about 8:30 p. m. He was then brought from his cell and taken to an office where he was again reminded of his constitutional rights. He was then asked whether he would go through his story again. Appellant did so. Finally he indicated he did not want to go over it any more and asked to talk to a lawyer. This concluded the final interrogation while in custody in Arizona.

We conclude that the record is clear that in the two instances where he discussed the offenses in the Tempe jail he did so freely and voluntarily, completely aware of his constitutional rights, and that his right to refuse questioning altogether was "scrupulously honored."

After appellant was released from custody and before he went to Chicago, he had a number of conversations with the police. None of them was under circumstances in which he was under any pressure to talk whatsoever. After he was indicted for the homicides and arrested in Florida, he was questioned five times by the Florida police. From our examination of the record made at a suppression hearing, in each instance he was fully advised of his rights and freely and voluntarily entered into discussions with them. Appellant contends that he had a right to resist the execution of the warrant for the search of his automobile because it was later found to have been illegally issued. He argues that therefore his arrest was illegal and any statements which he made subsequent to his arrest were the fruits of the illegal search and should have been suppressed.

Appellant relies on the statement to be found in United States v. Di Re, ...