State v. Arnett, No. 3684

• Court: Arizona Supreme Court
• Writing for the Court: HAYS; CAMERON
• Citation: 579 P.2d 542,119 Ariz. 38
• Docket Number: No. 3684
• Decision Date: 14 April 1978
• Parties: STATE of Arizona, Appellee, v. James Alan ARNETT, Appellant.

Page 542

579 P.2d 542 119 Ariz. 38 STATE of Arizona, Appellee,
v.
James Alan ARNETT, Appellant. No. 3684. Supreme Court of Arizona, In Banc. April 14, 1978.

[119 Ariz. 40]

Page 544

Bruce E. Babbitt, Former Atty. Gen., John A. LaSota, Jr., Atty. Gen. by William [119 Ariz. 41]

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J. Schafer III and Crane McClennen, Asst. Attys. Gen., Phoenix, for appellee.

Thinnes & Rawles by Thomas A. Thinnes, Thomas V. Rawles, Phoenix, for appellant.

HAYS, Justice.

Appellant James Alan Arnett was found guilty of first degree murder by a jury on July 22, 1976. An aggravation-mitigation hearing was held on August 24, 1976; the trial court specifically found that (1) appellant had been previously convicted of an offense for which under Arizona law a sentence of life imprisonment or death was imposable and (2) appellant had been previously convicted of a felony involving the use or threat of violence on another person, thus establishing the aggravating circumstances set forth in A.R.S. § 13-454(E)(1) and (2). (Both of these findings by the trial judge were based on evidence of a prior California conviction for "the crime of lewd and lascivious acts upon a child under the age of 14 years", punishable in that state by one year to life imprisonment. Under A.R.S. § 13-652, a similar act committed "upon or with a child under the age of fifteen years" is punishable by imprisonment for five years to life.) No mitigating circumstances were found, and on September 10, 1976 appellant was sentenced to death. We have jurisdiction of this appeal pursuant to A.R.S. § 13-1711.

Appellant offered no evidence at the trial; the following factual summary is derived from evidence introduced by the State. Additional facts will be referred to herein as they are pertinent to issues presented in this appeal.

During the first week of February, 1976, appellant was staying with a man named Victor Tremblay at Tremblay's residence in Van Nuys, California. On the evening of February 6 Tremblay returned home, laid his wallet and keys on the kitchen table, and proceeded to go to sleep in the living room. Sometime during the night, appellant took the wallet and keys and left the residence with Tremblay's car, a gray Ford Granada; the car contained Tremblay's Universal .30 caliber M-1 carbine. On February 8 appellant abandoned the car in northwestern Arizona, took the rifle and some backpacking equipment, and began walking cross-country. On the evening of February 9 appellant came upon a construction site located approximately 18 miles northwest of Lake Havasu City, Arizona, on state highway 95. Waiting until workmen left for the day, he approached the site and looked for food; he spent the night there in an abandoned camper truck shell. Sometime after appellant settled into the camper shell, Elmer James Clary arrived at the construction site in his International Pickup truck-camper; Mr. Clary likewise spent the night there, in his own camper. Many of the details of the next morning, February 10, are derived from a confession given to police officers by appellant after his arrest.

Shortly after daylight, appellant approached Clary and asked to purchase some food; Clary replied that he had none to sell. Appellant then asked for a ride into any nearby town, and Clary said that he had no room for a passenger. Appellant then offered to trade jewelry for food, and Clary expressed some interest in such a trade. According to appellant's statement, he then returned to a small shack where he had stored his backpack and the rifle, with the intent of retrieving the rifle and "stealing" Clary's truck. Unexpectedly, Clary followed appellant to the shack, and in appellant's words

". . . I didn't know that he was going to do that and we came back to the shack and I was at my backpack, I pulled the rifle out and there was a short pause and I just let it up and I started shooting and I later learned that I shot him five times."

Clary had been standing just outside the doorway of the shack at the time of the shooting, and appellant pulled him inside the shed from where he had fallen to the ground. After going through Clary's pockets, appellant loaded the backpack and the rifle into Clary's pickup truck and drove into California.

Appellant drove the pickup truck as far as Bakersfield, California and abandoned it [119 Ariz. 42]

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there; he traveled by bus to the San Francisco-Oakland area. He left the San Francisco area on February 18 and began traveling north, again on foot. He was apprehended in Richmond, California during that night, and taken to jail at the Richmond Hall of Justice. Appellant was initially held for a local burglary (which had been the cause of his arrest, but which fact was not disclosed to the jury at trial) and then awaited extradition to Arizona on the instant charge; on February 25, while still in the Richmond City Jail, appellant made a detailed confession to a Richmond City Police detective regarding the shooting of Elmer James Clary.

The body of Elmer James Clary was discovered by a construction worker in the shack on the morning of February 10; officers of the Mohave County Sheriff's Department began arriving at the scene within about 45 minutes, and "roped it off" to preserve any possible physical evidence. Medical testimony subsequently established that the victim had suffered five gunshot wounds, any one of four of which could have been fatal in itself. Ballistics analysis revealed that three "bullets" or "bullet fragments" extracted from the body of the victim had been fired by the Universal rifle recovered from appellant at the time of his arrest; expended "cartridge cases" found around Clary's body at the construction site also matched that rifle. Fingerprint analysis disclosed appellant's prints on several items within the victim's abandoned pickup truck in Bakersfield, and footprints discovered around the construction site on the morning of February 10 were found to match a pair of boots which had been worn by appellant at the time of his arrest. Appellant raises numerous issues in this appeal, none of which challenge the sufficiency of the evidence to support the jury's finding of his guilt.

THE CONFESSION

Appellant challenges the admissibility of his confession on two grounds, first alleging that the statements were not made in the "unfettered exercise" of his free will and were therefore involuntary, and second, that the trial court erred in failing to make a definite and certain determination of the "voluntariness" of said confession before ruling it admissible.

With regard to appellant's contention that his confession was in fact involuntary, we start with the proposition that in Arizona confessions are prima facie involuntary and the burden is on the State to show that they were freely and voluntarily made, and not the product of physical or psychological coercion. State v. Bishop, 118 Ariz. 263, 576 P.2d 122 (Filed March 1, 1978); State v. Edwards, 111 Ariz. 357, 529 P.2d 1174 (1975). Thus, the State must show "by a preponderance of the evidence" that the confession was freely and voluntarily made. State v. Knapp, 114 Ariz. 531, 562 P.2d 704 (1977); State v. Arredondo, 111 Ariz. 141, 526 P.2d 163 (1974). The trial court must look to the totality of the circumstances surrounding the giving of the confession, as presented at "voluntariness" hearings, and decide whether the State has met its burden. State v. Knapp, supra; State v. Toney, 113 Ariz. 404, 555 P.2d 650 (1976); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); A.R.S. § 13-1599. However, the trial court's determination of admissibility will not be upset on appeal, absent clear and manifest error. State v. Bishop, supra; State v. Jordan, 114 Ariz. 452, 561 P.2d 1224 (1976); State v. Edwards, supra.

After appellant's burglary arrest on February 18 he was initially placed in a cell in the Richmond, California city jail with two other prisoners. After being arrested on February 19 on the Arizona murder charge, he was transferred to a "holding" or "detention" cell within the same facility and held there alone. On February 25, while residing in this cell, he made the confession which is here alleged to have been involuntary. Appellant complains that jail conditions were such that his physical and psychological states deteriorated, his "free will" was "overborne" and the confession was involuntary. At the "voluntariness" hearing in this cause appellant testified [119 Ariz. 43]

Page 547

that his cell was "filthy"; because it was dirty and there were no means to clean it, the shower did not work, but contained spittle and cigarette butts, and the blanket was dirty; that he was unable to take a shower or brush his teeth; that his daily diet consisted of two "TV" dinners, furnished at 6:00 a.m. and at 6:00 p.m.; that he was cold in jail because he did not have enough blankets and was wearing only a disposable paper-cloth suit, which had gotten torn in several places; that he had contracted "crabs" and suffered from asthma, hay fever, a sinus condition, and chest and head colds, which conditions were aggravated because his medication had been confiscated when he was originally incarcerated. Evidence for the State tended to show that appellant never complained to the witnesses about his physical condition, nor did he request medical attention; that when offered a chance to do so, he declined to contact any friends or relatives, but visited only with his parole officer; that prior to his arrest appellant had not taken a shower for three or four days, as he was hiking around; that he was provided an extra blanket and a toothbrush and toothpaste upon request, by a Richmond police officer; that his suit was not torn; that his only complaint had been a single request for more "chow"; and that at the time of the confession he appeared to be generally in good physical condition. We note additionally that appellant had dropped out...