State v. Alford

• Decision Date: 03 June 1965
• Docket Number: No. 1435,1435
• Citation: 98 Ariz. 124,402 P.2d 551
• Parties: STATE of Arizona, Appellee, v. Robert ALFORD, Appellant.
• Court: Arizona Supreme Court

Page 551

402 P.2d 551

98 Ariz. 124

STATE of Arizona, Appellee, v. Robert ALFORD, Appellant.

No. 1435.

Supreme Court of Arizona, In Banc.

June 3, 1965.

Rehearing Denied June 29, 1965.

Robert W. Pickrell, Atty. Gen., Paul G. Rosenblatt, Asst. Atty. Gen., and Robert Warden, County Atty., of Coconino County, for appellee.

John H. Grace, Flagstaff, for appellant.

BERNSTEIN, Justice.

This is an appeal from a death sentence imposed after a plea of guilty to three counts of first degree murder, charging appellant with the murder of three children, ages 11, 12 and 14.

The bodies of the three children, each of whom had been shot twice, once with a .32 caliber revolver, and again with a .45 were discovered on the morning of June 6, 1963, in a wooded area one mile south of Highway 66 near Williams, Arizona. Marks on her body indicated that the 14 year old child had been beaten. Shots from the .45 were all fired after the children had fallen and the bullets were found in the ground underneath their bodies. Arizona authorities immediately sought the aid of out-of-state law enforcement officers in the search for the killer.

Appellant was arrested in Santa Rosa, California on July 12, 1963 on a warrant charging child molesting in Los Angeles. While in Jail on the California charge, and while without counsel, he confessed to the Arizona killings. He was a neighbor of the murdered children and was friendly with them. The homicides occurred on a trip through Arizona en route to Oklahoma made at the request of the children because of difficulties in their foster home in Stockton, California.

The appellant made many conflicting statements while under arrest in california, but on one occasion he confessed to the killings in the presence of a deputy sheriff from Arizona, who testified to this confession at the preliminary hearing. Appellant waived extradition, and was brought to Arizona on July 16, 1963. He was not represented by counsel at any time in California.

Appellant was brought before a magistrate immediately upon his arrival in Arizona, and two continuances were granted at his request. Appellant was not indigent at that time and did not desire court appointed counsel. He did, however, desire to communicate with his sister and have her secure counsel for him. This he was permitted to do, and his sister retained the counsel who represented him at the trial and on this appeal. On this appeal counsel appears by appointment of the court, as appellant's funds are now exhausted. Counsel was not retained, however, until after the preliminary hearing, which was finally held on July 22, 1963. Appellant was bound over to the Superior Court for trial.

An Information charging appellant with three counts of murder in the first degree was filed in the Superior Court on July 26, 1963. On July 30, 1963, appellant appeared in court with counsel for the purpose of arraignment and entered a plea of not guilty to each court. The court then set the case for trial before a jury on September 9, 1963.

On August 2, 1963, the appellant's counsel requested that the trial date be postponed in order to allow him to have an investigation conducted as to his client's mental capacity. The trial was continued to September 23, 1963. On September 23, 1963, the appellant appeared before the Superior Court with his counsel and requested an examination by a psychiatrist pursuant to Rule 250 Rules of Criminal Procedure, 17 A.R.S. The court ordered that Dr. Maier Tuchler conduct an examination of the appellant.

Appellant was examined on several occasions in the office of Dr. Tuchler. He was further examined by Dr. Aaron Canter, a Clinical Psychologist at the Veterans Hospital in Phoenix. Dr. Tuchler and Dr. Canter both submitted reports to the Superior Court advising that appellant was legally sane and fully able to cooperate and assist counsel in his defense.

On September 20, 1963, appellant appeared in person and with counsel in Superior Court at which time Dr. Tuchler appeared and elaborated on his written report, again concluding that appellant was legally sane and fully able to assist in his defense. At this time appellant moved for an order allowing him to withdraw his plea of not guilty. This motion was granted by the trial judge. As to each count, appellant entered a plea of guilty. October 7, 1963, was then set as the time for passing of sentence on each of the three counts of murder in the first degree. The County Attorney was requested to furnish the court with a written report as to the details of the state's case. This report, accompanied by the appellant's confessions, was subsequently submitted to the court for its consideration together with a statement prepared on behalf of appellant by his counsel. On October 7, 1963, appellant appeared before the court for sentencing. Before sentence was imposed appellant made a request to withdraw his pleas of guility. This request was denied.

Appellant's first and second assignments of error are based on the fact that he did not have counsel in California, nor when first questioned in Arizona, and that he had no counsel at the preliminary hearing.

Appellant relies upon Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193; Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, and Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 to support these two assignments. The requirements of Gideon were met. Appellant was represented by counsel of his own choosing at the time he was first arraigned in the Superior Court and at the time he pled guilty.

White, Malloy and Escobedo are inapplicable. There was no trial on the issue of guilt in this case, because of appellant's plea of guilty, and nothing that happened at the preliminary hearing was received in evidence against him on the issue of his guilt or innocence. The confessions were part of the material considered by the trial judge in determining whether to impose a sentence of death or life imprisonment after the plea of guilty while represented by counsel.

A plea of guilty being properly before the court, the proceedings did not prejudice any rights of appellant. No ruling on the voluntariness or admissibility of appellant's confessions was made nor was one necessary. A plea of guilty waives production of all evidence of guilt, and thereafter a defendant may not question the legal sufficiency of the evidence against him. State v. Murphy, 97 Ariz. 14, 396 P.2d 250 (1964); People v. Lehman, 51 Ill.App.2d 163, 200 N.E.2d 528 (1964).

The trial judge had before him both the confessions and their repudiation, and information concerning appellant's criminal record and previous confinement in an insane asylum in California. Much of this material could not have been submitted to a a jury charged with determining the guilt or innocence of the appellant. The question of guilt having been determined by the plea of guilty, however, it consideration by the judge in determining the sentence was eminently proper. In order that the court may properly carry out the intent of Rule 336 Rules of Criminal Procedure the court on sentencing where a hearing has been requested or on his own motion should consider the nature of the offense, the character of the defendant, available information as to the defendant's past conduct, the past record and criminal activities of the defendant, and the defendant's moral character and associations. State v. Fenton, 86 Ariz. 111, 341 P.2d 237; State v. Levice, 59 Ariz. 472, 130 P.2d 53.

In State v. Douglas, 87 Ariz. 182, 187, 349 P.2d 622, 625, we said:

'It must be conceded that the passing of sentence in a criminal case is one of the most difficult and trying tasks a court is called upon to perform. This for the reason the liberty (ofttimes the very life) of a human being, as well as his whole future are at stake. Justice Henry Alfred McCardie aptly stated:

'Trying a man is easy, as easy as falling of a log, compared with deciding what to do with him when he had been found guilty.'

'A conscientious judge will therefore (if needs be on his own motion) inquire into all of the facts and circumstances surrounding the alleged offense. See, State v. Fenton, 86 Ariz. 111, 341 P.2d 237; State v. Smith, 66 Ariz. 376, 189 P.2d 205; and State v. Bigelow, [76 Ariz. 13, 258 P.2d 409, 39 A.L.R.2d 979.]'

In State v. Fenton, supra, as here, this court was called upon to review a death sentence imposed after a plea of guilty. The cases are remarkably similar, and an objection raised included the consideration by the judge of a 'confession'. This court was urged to reduce the death penalty to life imprisonment. We said:

'The trial court at a pre-sentence hearing is not bound by the strict rules of evidence applying in trials'. 86 Ariz. at 119, 341 P.2d at 242.

These assignments are governed by Williams v. People of State of New York, 33m U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337. In Williams the defendant was convicted of first degree murder, and the jury recommended mercy. As permitted by New York law, the trial judge disregarded the jury's recommendation, and imposed a death sentence. The judge's action was based upon a confession and other material including evidence of other offenses which were not admitted into evidence, and would have been held to be inadmissible if offered. The United States Supreme Court upheld the death sentence.

In Williams, as in this case, evidence inadmissible at the trial was properly considered by the judge in determining the sentence. As Justice Black said in Williams:

'In addition to the historical basis for different evidentiary rules governing trial and sentencing procedures there are sound practical reasons for the distinction. In a trial before verdict the issue is whether a defendant is guilty of having engaged in certain criminal conduct of which he has been specifically accused. * *...