State v. Adams

• Decision Date: 08 March 1985
• Docket Number: CA-CR,No. 2,2
• Citation: State v. Adams, 703 P.2d 510, 145 Ariz. 566 (Ariz. App. 1985)
• Parties: The STATE of Arizona, Appellee, v. Edward Lee ADAMS, Appellant. 2786.
• Court: Arizona Court of Appeals

Page 510

703 P.2d 510

145 Ariz. 566

The STATE of Arizona, Appellee, v. Edward Lee ADAMS, Appellant.

No. 2 CA-CR 2786.

Court of Appeals of Arizona Division 2, Department A.

March 8, 1985.

Review Denied May 7, 1985.

Robert K. Corbin, Atty. Gen. by William J. Schafer III and R. Wayne Ford, Phoenix, for appellee.

Frederic J. Dardis, Pima County Public Defender by Frank P. Leto, Tucson, for appellant.

OPINION

HOWARD, Judge.

Appellant, convicted by a jury of three counts of molestation of a child, a non-dangerous, non-repetitive, class 2 felony, was sentenced on each count to concurrent presumptive sentences of five years' imprisonment. The victims in this case were three sisters--twins Coleen and Crystal, nine years of age and Cathy, seven years of age. In 1979 appellant, who was 19 at the time, was a babysitter for the children. He also used to take the girls swimming and to the movies. Near the end of the 1979 school year, appellant administered "medical exams" to all three girls. These exams consisted of having the girls remove their clothes after which he would feel all over their bodies including their vaginas. On different occasions appellant put his fingers into Coleen's vagina and had sexual intercourse with her. The same conduct was repeated with Crystal. These incidents were not discovered by the girls' mother until 1981 when a friend of the sisters told her own mother who, in turn, informed the victims' mother.

Appellant was arrested and interviewed by Detectives Taylor and Witte of the Pima County Sheriff's Office. The interview concluded with appellant making a taped statement confessing to having sexual intercourse with Coleen and Crystal and touching Cathy's vagina. Further facts will be set forth as they relate to the issues under discussion.

Appellant contends that the trial court erred in denying the motion to suppress his confession and in refusing to instruct the jury on his good character. He also contends that he was denied a fair trial because the jury received evidence that was not admitted during the trial and because some members of the jury failed to answer questions posed on voir dire. He further contends that the mandatory imprisonment provision of A.R.S. § 13-1410 is unconstitutional as applied to him, i.e., a violation of the cruel and unusual punishment provision of the Eighth Amendment. We affirm.

I.

Appellant contends that the trial court's admission of his taped confession was error because it was involuntary due to his mental deficiency and because of the police conduct in obtaining it.

In Arizona, confessions are presumed to be involuntary. The burden is on the state to demonstrate by a preponderance of the evidence that a confession was freely and voluntarily made and is not the product of physical or psychological coercion. In making its determination, the trial court must examine the totality of the circumstances. The trial court's determination will not be upset on appeal absent clear and manifest error. State v. Hein, 138 Ariz. 360, 674 P.2d 1358 (1983). Low intelligence, in itself, will not invalidate an otherwise knowing and intelligent waiver. State v. Tothill, 120 Ariz. 406, 586 P.2d 655 (App.1978).

Testifying at the motion to suppress was Detective Taylor. He testified that after arresting appellant he was taken to the sheriff's office and to a five-by-seven-foot room with a table in it where he was released from his handcuffs and, after being given his Miranda rights, was questioned for about an hour prior to giving his taped statement. Detective Taylor testified that appellant said he understood his Miranda rights and agreed to the interview. No threats of force or violence or promises were made. The officers proceeded by asking him first to tell them what happened. He denied the allegations against him and they continued to talk to him about them. The officers finally told him that they thought he was lying and that the little girls were telling the truth. Appellant still kept denying the charges. One of the officers told appellant that everybody has to answer to God for what they do and how did he think he would answer to God about this. Shortly after this was said, appellant got tears in his eyes and admitted to some of the acts of molestation. Throughout the interrogation one of the officers told appellant that a judge could order a person to have treatment and appellant could get treatment himself if he wanted it, that these kinds of problems were solved only by treatment and that one could not do so alone.

Appellant took the stand at the suppression hearing and testified. He stated that no threats or coercion were used. At no time during his testimony did he say that he did not understand the Miranda rights that were read to him. In fact, he specifically stated that he understood them. The only thing that he did say was that Officer Witte had promised him that he would ask the court to give him help for his problem if he needed it.

Testifying for appellant were three teachers involved in the special education program at Sahuaro High School who knew appellant. Appellant graduated from Sahuaro High School with a C plus average. His I.Q. in high school was 80, below average, and he had a mental age of 9 in terms of what he could visually perceive. One aspect of his deficiency when he was in school was his inability to understand what he heard and that he just parroted back. He tried to cover up his deficiency and some people would not be aware of the fact that he had a learning deficiency. When asked their opinion about appellant's statement to the police, his teachers stated that they thought that he would probably be confused during interrogation by the nature and speed of the questioning, that he possibly could have been intimidated by the police and that he did not understand his Miranda rights even if he said he did.

The trial court, after listening to the taped confession, found that appellant had been informed at least twice of his Miranda rights and also found appellant's confession to be voluntary and admissible. The trial court had the opportunity to listen to and observe appellant on the witness stand as well as listen to the taped confession. We have also listened to the taped confession. Appellant's responses on the taped confession, as well as his testimony at trial, demonstrate that the answers are appropriate, fluent and discriminating. They do not show a person merely answering, "yes", "no", "maybe", or "I don't remember", to questions, but rather a person who understands what the charges are and their seriousness. We also note that at trial one of the teachers who testified at the motion to suppress, after hearing the taped statement, decided that appellant did in fact understand the questions that were being asked him by the police although he probably did not understand his Miranda rights. Coupled with these facts is the fact that on the witness stand appellant never said that he did not understand his Miranda rights, although there was ample opportunity for defense counsel to ask him that question. In fact, he said just the opposite. We do not believe the court erred in admitting the confession.

II.

In connection with the confession, appellant tried to show at trial that Detective Taylor testified falsely when he said that he did not tell any falsehoods during interrogating when he told appellant that a person could get help if he were convicted. In cross-examination appellant wanted to ask Detective Taylor if he was aware that under Arizona law a person convicted of child molesting must be sentenced to prison for a minimum term of five years. The trial court refused to allow this question to be asked because it improperly placed the issue of punishment before the jury. Appellant contends that the court's refusal to let him ask this question denied his Sixth Amendment rights to confrontation and cross-examination. We do not agree. If cross-examination is unreasonably limited, defendant's conviction will be reversed on appeal. State v. Dunlap, 125 Ariz. 104, 608 P.2d 41 (1980). It is only where the limitation on cross-examination is unreasonable that there is a Sixth Amendment issue. State v. Williams, 132 Ariz. 153, 644 P.2d 889 (1982). The test is the relevancy of the proposed examination. State v. Navarro, 132 Ariz. 340, 645 P.2d 1254 (App.1982). Here, we find nothing but a blatant attempt to get before the jury the mandatory nature of the punishment in order to secure the unwarranted sympathy of the jury. Such questions are improper. Possible punishment is irrelevant. State v. Van Dyke, 127 Ariz. 335, 621 P.2d 22 (1980); State v. Burnetts, 80 Ariz. 208, 295 P.2d 377 (1956).

III.

Appellant contends that his confession was otherwise coerced and involuntary. He describes the use of what he calls the "Mutt and Jeff" routine, the "switching of tactics," and the narrow and barren room in which he was interrogated. However, appellant's characterization of the interrogation does not square with the facts. The "Mutt and Jeff" routine is an interrogation method formerly employed by law enforcement officers. In this technique one officer would play the "good guy" and one officer would play the "bad guy." The bad guy would be very, very bad indeed, sometimes even to the point of pretending that he was going to inflict physical violence upon the defendant if he did not talk and at times appearing to be emotionally out of control. The good guy then implored the defendant to deal with him in order to avoid having to deal with the bad guy. That technique was not used here. The allegedly coercive "switching of tactics" consisted of listening to appellant give a story and then telling him that they did not believe him. This could hardly be considered coercive. The room was small but allowed the existence of a table and chairs for everyone to sit around. While it was not as spacious and expansive as the lobby of the Algonquin Hotel,...