594 P.2d 72 (Ariz. 1979), 3957, State v. Edwards

Docket Nº:3957.
Citation:594 P.2d 72, 122 Ariz. 206
Opinion Judge:[10] Hays
Party Name:STATE of Arizona, Appellee, v. Robert EDWARDS a/k/a Willie Barefield, Appellant.
Attorney:[7] Bruce E. Babbitt, former Atty. Gen., Robert K. Corbin, Atty. Gen., by William J. Schafer, III, and Crane McClennen, Asst. Attys. Gen., Phoenix, attorneys for appellee. [8] Molloy, Jones, Donahue, Trachta & Childers by Michael J. Meehan, Tucson, attorneys for appellant.
Case Date:March 27, 1979
Court:Supreme Court of Arizona

Page 72

594 P.2d 72 (Ariz. 1979)

122 Ariz. 206

STATE of Arizona, Appellee,


Robert EDWARDS a/k/a Willie Barefield, Appellant.

No. 3957.

Supreme Court of Arizona.

March 27, 1979

Page 73

In Banc.

Rehearing Denied May 1, 1979.

Page 74

[122 Ariz. 208] Bruce E. Babbitt, former Atty. Gen., Robert K. Corbin, Atty. Gen., by William J. Schafer, III, and Crane McClennen, Asst. Attys. Gen., Phoenix, attorneys for appellee.

Molloy, Jones, Donahue, Trachta & Childers by Michael J. Meehan, Tucson, attorneys for appellant.

HAYS, Justice.

This is an appeal by Robert Edwards from his convictions of robbery, burglary, and first degree murder, and from his sentence of death for the murder conviction. We have jurisdiction pursuant to article 6, § 5 of the Arizona Constitution and A.R.S. § 13-4031. We affirm the convictions and sentences for robbery and burglary, and the murder conviction, but remand the murder conviction for resentencing.

We are presented with nine issues on appeal:

  1. Whether Edwards' confession was admissible;

  2. Whether, in deference to Edwards' right to a speedy trial, the state must forego its right to file a special action when a speedier alternative is available;

  3. Whether Edwards' right to a speedy trial was violated;

  4. Whether Edwards's trial in prison garb, over his objection, violated his right to due process;

  5. Whether the preclusion of a defense witness was an abuse of discretion;

  6. Whether the prosecutor's statements in his closing argument constituted an impermissible comment on Edwards' failure to take the stand;

  7. Whether an unintended or accidental death may be the basis for a felony murder conviction;

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    [122 Ariz. 209] 8. Whether A.R.S. § 13-1641 (now renumbered as § 13-116) precludes conviction and punishment for robbery and burglary in addition to first degree murder when the latter is a felony murder; and

  8. Whether there was sufficient evidence of causation in the record to support the felony murder conviction.

    In October, 1974, a bar in Tucson was robbed at gunpoint. During the robbery the proprietor suffered a fatal heart attack. After obtaining some money and valuables the robbers fled. The police investigated the crime but soon exhausted all leads. In January, 1976, they obtained information that led to the arrest of Edwards and several co-conspirators. Edwards was subsequently convicted of robbery, burglary, and first degree murder.


    Edwards was arrested at his home at 4:00 P.M. He was not read the Miranda 1 warnings at that time nor did he make any statements, but was taken to the police department where he was read his rights. He indicated he understood them and that he would submit to questioning. After again having his rights explained to him, he was interrogated by a detective who told him that a co-conspirator had implicated him in the robbery of a Tucson bar. Edwards denied involvement and gave a taped alibi statement, at the beginning of which he was again read his rights. After the statement, he asked the detective if he could make a deal. The detective replied that he wanted a statement but that he could make no deals. Consequently, Edwards asked to talk to the county attorney about making a deal, which he was allowed to do. The negotiations were unsuccessful. Edwards then reapproached the detective about a deal. The detective repeated his earlier statement that he could make no deals, to which Edwards replied, "I want an attorney before making a deal." He did not indicate, however, nor did the detective interpret his statement to mean that he wanted an attorney before further interrogation or that he wished to remain silent thereafter. The detective, nevertheless, ceased questioning immediately after Edwards' statement at about 6:30 P.M. Thereafter, Edwards was taken to the county jail.

    At 9:15 the next morning two other detectives arrived at the jail and asked to see Edwards. Although they were from the same section as the detective who had questioned Edwards the day before and knew that he had been questioned, they did not know that he had made the statement about an attorney. When the detention officer told Edwards that the detectives were there to see him, he told the officer that he did not wish to speak to anyone. The officer told him that he had to. Edwards was thereupon taken to see the detectives. They identified themselves and said they wanted to talk to him. At that point they explained to him that he had the right to remain silent and the right to an attorney and the other Miranda rights. Edwards said that he was willing to talk to them but that he first wanted to hear the taped statement of his co-conspirator that the detective had told him about the day before. After a portion of the tape was played, he told the detectives that he would make a statement but that he did not want it recorded because it could be used against him in court. The detectives thoroughly explained that whether or not the statement was recorded did not matter because an oral statement could also be used against him in court. Edwards replied "I'll tell you anything you want to know, but I don't want it on tape." Edwards then gave a statement indicating his involvement in the robbery. The interrogation concluded at 10:30 A.M. Prior to trial, Edwards moved to suppress the confession and a hearing was held. The court found that the statement was voluntarily given but that the detectives violated Miranda when they reapproached Edwards after his statement about an attorney. However, the next day the judge reversed his ruling based on State

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    [122 Ariz. 210] v. Travis, 26 Ariz.App. 24, 545 P.2d 986 (1976), and found the confession to be admissible substantively.

    Edwards claims on appeal that he exercised both his right to an attorney and his right to remain silent, that he did not subsequently waive either right, and that in any case his statement was not intelligently made and was therefore involuntary. First, we must determine whether, having initially waived his rights, Edwards adequately reclaimed them by declaring that he would wait to talk to an attorney before making a deal.

    Invocation of Previously Waived Miranda Rights

    Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706-07 (1966), holds that if a defendant indicates "in any manner" that he wishes an attorney before speaking or that he does not wish to be interrogated further, questioning must cease. Edwards points to this language in Miranda and argues that his statement was adequate to raise both his right to an attorney and his right to remain silent.

    The state argues, however, that by stating he wanted to see an attorney before making a deal, Edwards was not raising his right to an attorney as such, nor saying that he wished to remain silent, but only asserting that he wanted to see an attorney before talking anymore about a deal. For this proposition, the state relies on State v. Travis, supra. There, after the defendant had been arrested and read his rights, he made equivocal statements about desiring an attorney. A detective asked him if he would submit to a breathalyzer test and allow the interview to be recorded. The defendant responded that he wanted to seek the advice of counsel before granting either request. The detective then told him that his wife had died and that he would now be charged with first degree murder. The defendant broke down and confessed his involvement. In ruling that his confession was admissible, the court reasoned that the defendant never made a definite statement to the effect that he either wanted to talk to an attorney before answering questions or preferred that questioning cease. Id. 26 Ariz.App. at 29, 545 P.2d at 991.

    Notwithstanding the "in any manner" language of Miranda, supra, we are convinced that Miranda was not intended to require that every reference to an attorney, regardless of its ambiguity, must be construed as an invocation of the Miranda rights. 2 We think Travis is correct in looking at a statement in the context made and attempting to determine whether it is sufficiently clear to be fairly interpreted as a request for an attorney or a demand that interrogation cease. There is much authority in support of this view. See, e. g., United States v. Rodriguez-Gastelum, 569 F.2d 482, 484 (9th Cir.), Cert. denied, 436 U.S. 919, 98 S.Ct. 2266, 56 L.Ed.2d 760 (1978); United States v. Tokoph, 514 F.2d 597, 605 (10th Cir. 1975); United States v. Howard, 152 U.S.App.D.C. 258, 259-60, 470 F.2d 406, 407-08 (1972); State v. Knapp, 114 Ariz. 531, 538, 562 P.2d 704, 711 (1977), Cert. denied, 435 U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 500 (1978); State v. Gholson, 112 Ariz. 545, 548, 544 P.2d 654, 657 (1976); State v. Garrison, 16 Or.App. 588, 519 P.2d 1295, 1300-01 (1974).

    Applying this reasoning in an evaluation of Edwards' statement, it appears at first blush that the state's argument is correct, I. e., that Edwards was saying that he desired an attorney only if a deal was discussed further. However, looking at the statement in the context made, we find such an interpretation erroneous.

    To accept the state's position in this case and allow Edwards' confession to stand while holding that he asked for an attorney for the limited purpose of making a deal would be illogical. Edwards wanted an attorney before making a deal. His part of

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    [122 Ariz. 211] the deal would have been his confession. Therefore, to allow him to make a confession without counsel would be to deny him his right to counsel for the very purpose, albeit limited, for which it was invoked. Likewise, it would be just as illogical to hold that his statement was enough to invoke his right to remain silent only if questioned about a deal. We hold therefore, looking at Edwards' statement in the context...

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