Appeal in Pima County Juvenile Action No. J-37390-1, Matter of

• Decision Date: 25 August 1977
• Docket Number: J-37390-1,No. 2,CA-CIV,2
• Citation: 570 P.2d 206,116 Ariz. 519
• Parties: In the Matter of the APPEAL IN PIMA COUNTY JUVENILE ACTION NO.2509.
• Court: Arizona Court of Appeals

Page 206

570 P.2d 206

116 Ariz. 519

In the Matter of the APPEAL IN PIMA COUNTY JUVENILE ACTION NO. J-37390-1.

No. 2 CA-CIV 2509.

Court of Appeals of Arizona, Division 2.

Aug. 25, 1977.

Review Denied Sept. 27, 1977.

George Haskel Curtis, Tucson, for appellant juvenile.

Bruce E. Babbitt, Atty. Gen., Stephen D. Neely, Pima County Atty., by Sydney K. Davis, Deputy County Atty., Tucson, for appellee State.

OPINION

HATHAWAY, Judge.

Appellant, whose probation was revoked because of a juvenile court finding that he had committed arson in violation of A.R.S. § 13-232, appeals the order of revocation. As grounds for reversal, he contends that his statements were not voluntary and should have been suppressed and that the state failed to prove the offense of arson as charged.

At approximately 11:30 a.m. on the morning of November 8, 1976, appellant was interviewed by Detective Smith at the Pima County Juvenile Court Center where he was being detained. He had been arrested the evening before, together with another juvenile, for an incident involving the scattering of FedMart shopping carts around the FedMart parking lot. Sometime later a fire was observed at Kuykendall's Furniture Store located a block away from FedMart. The fire was reported to the Fire Department which arrived about 2 a.m. Extensive damage to the building was caused by the fire.

Detective Smith testified extensively as to the circumstances of his interview with appellant at the Juvenile Court Center on November 8. At that time appellant admitted that he and the other juvenile set fire to one of several cardboard boxes which were stacked against the rear wall of the Kuykendall building. Appellant, in making his statement, also drew a sketch of the premises which illustrated the location of the boxes. This statement was taped and the tape recording was admitted into evidence and played for the juvenile court judge.

In support of his claim that his statement was involuntary and coerced, appellant relies on his own testimony and that of two other juveniles. According to appellant and one of the juveniles, appellant had been struck in the face by a police sergeant prior to the trip to the Juvenile Court Center. The other juvenile agreed that appellant had been struck by the officer but could not tell whether he had been punched or slapped. Appellant contends that after having been struck in the face by a police officer, his subsequent interrogation the following morning by Detective Smith resulted in involuntary statements because his will had been overborne by the prior conduct. Particularly so, he argues, since neither his parents nor his probation officer were present at the interrogation.

The record reflects, however, that attempts were made to contact appellant's parents but without success. Also, that his Miranda rights were fully explained to him, that he indicated he understood them, and made no request for an attorney. The test in Arizona to determine the voluntary, knowing and intelligent waiver of the right to remain silent by a juvenile is the "totality of circumstances" test. State v. Rodriquez, 113 Ariz. 409, 555 P.2d 655 (1976); State v. Taylor, 112 Ariz. 68, 537 P.2d 938 (1975), cert. den., 424 U.S. 921, 96 S.Ct. 1127, 47 L.Ed.2d 328 (1976). The fact that appellant's parents were not present was only one of the elements to be considered by the juvenile court in determining whether appellant's statement was voluntary and whether he intelligently comprehended his rights. State v. Hardy, 107 Ariz. 583, 491 P.2d 17 (1971).

Detective Smith testified that at the time he advised appellant of his Miranda rights, appellant did not seem upset but the officer felt he was nervous. After explaining his rights, the officer asked appellant if he had any questions, to which he received a negative answer. He described appellant's attitude as "defiant" and observed nothing that would indicate appellant was afraid of him. Furthermore, appellant had had numerous contacts with the juvenile court which would indicate that this was not the first time he had been informed of his Miranda rights. In fact, appellant admitted to prior contact with at least four attorneys and that he understood his right to have an attorney. Although appellant stated that he had eaten no breakfast, his own testimony revealed that breakfast had in fact been served to him. Nor was...