State v. Bainch

• Decision Date: 18 January 1973
• Docket Number: No. 2262,2262
• Parties: STATE of Arizona, Appellee, v. Nathaniel BAINCH, Appellant.
• Court: Arizona Supreme Court

Page 248

505 P.2d 248

109 Ariz. 77

STATE of Arizona, Appellee, v. Nathaniel BAINCH, Appellant.

No. 2262.

Supreme Court of Arizona, In Banc.

Jan. 18, 1973.

Gary K. Nelson, Atty. Gen., by Peter Van Orman, Asst. Atty. Gen., Phoenix, for appellee.

Ross P. Lee, Public Defender, by James H. Kemper, Deputy Public Defender, Phoenix, for appellant.

HOLOHAN, Justice:

The defendant, Nathaniel Bainch, was tried and found guilty of robbery. He appeals from the judgment of conviction and sentence of five to six years in prison. The record discloses that on July 3, 1970, Pedro Iglesias, an 80-year-old man, had been shopping at a J. C. Penney store in Phoenix. He was sitting on the sidewalk, with a shopping bag full of purchases at his side, waiting for a bus to take him back to his home in Glendale. A man, subsequently identified as the defendant, Nathaniel Bainch, suddenly 'grabbed' the bag from Iglesias, and threatened him with a drawn knife. Iglesias attempted to get his bag back, but was cut on the arm by the knife, and pushed down into the street. The assailant fled, but Iglesias followed and saw him enter a tavern. Iglesias then summoned two nearby police officers. Upon entering the tavern he pointed to Bainch, the defendant, who was seated therein, and stated:

'That is the man that took my bag. That is the bag right there.'

A blue J. C. Penney bag was observed leaning against Bainch's feet. The officer asked:

'Is that your bag?'

Bainch answered:

'Yes, I bought it from a man.'

Subsequent examination disclosed that the bag contained a welfare check made out to Igelsias, as well as the items he had purchased.

The defendant was arrested, tried, and on the strength of these facts, the jury returned a guilty verdict on the robbery charges.

On appeal, the defendant contends that the trial court erred in two matters:

(1) Admission of his statement to police officers that he had 'bought' the bag; and,

(2) Denial of his motion to suppress an in-court identification on the grounds that prior to trial the police has shown only his photograph to the victim.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court held:

'. . . the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.' 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706.

At the outset, we note that the statement 'I bought if from a man' is neither a confession nor an inculpatory admission, as is customarily found in cases in which Miranda is invoked. In fact, the statement is consistent with defendant's later testimony that during the approximately five-minute interval between robbery and arrest he had bought the bag from an unnamed serviceman passing through town. We note from the language above that Miranda bars use of 'exculpatory' statements as well. The statement by the defendant in response to the question by the police officer is potentially inadmissible under Miranda, provided, of course, that the interrogation was 'custodial.'

The trial court held a voluntariness hearing and concluded that the defendant was not in custody at the time the statement was made.

The question of when 'custodial interrogation' begins was defined by Chief Justice Warren in Miranda as:

'. . . after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.' 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706.

In Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969), the court held that the Miranda warnings were required before a statement was admissible in all instances of in-custody questioning even outside the police station. A person under arrest and not free to leave the presence of the officer was in custody.

The federal Supreme Court did distinguish between investigation and in-custody interrogation:

'General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.' 384 U.S. at 477, 86 S.Ct. at 1629, 16 L.Ed.2d at 725.

Since Miranda the 'focus of the investigation' test of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), has been supplanted or redefined to equate it with the custodial interrogation test. Custody is now the crucial issue in determining whether Miranda warnings are necessary before a statement by defendant may be received in evidence against him. See State v. Mumbaugh, 107 Ariz. 589, 491 P.2d 443 (1971).

The facts in this case are similar to those in State v. Sherron, 105 Ariz. 277, 463 P.2d 533 (1970). The appellant in the cited case contended that his consent to a search by police officers was not voluntary because the consent had been obtained without having been advised of his constitutional rights pursuant to Miranda. The officers had questioned Sherron without first giving the Miranda warnings, but the officers had advised him that he was not under arrest and no restraint was used. It was clear that Sherron was a suspect, but the officers had not taken him into custody. In approving the admission of both the conversations with Sherron and the items found after the 'consent' search, the court said:

'Neither Miranda nor Orozco require that a police officer refrain from speaking to any citizen on the streets without the requisite warning. Neither opinion suggests that a police officer is precluded from asking questions of or eliciting help from bystanders in the general vicinity of a crime.' 105 Ariz. at 279, 463 P.2d at 535.

The fact that an officer may be suspicious of an individual is not the test as to whether Miranda warnings must...