State v. Barnes

• Decision Date: 11 January 1980
• Docket Number: No. 4593,4593
• Citation: 124 Ariz. 586,606 P.2d 802
• Parties: STATE of Arizona, Appellee, v. Olf Dempsey BARNES, Appellant.
• Court: Arizona Supreme Court

Page 802

606 P.2d 802

124 Ariz. 586

STATE of Arizona, Appellee, v. Olf Dempsey BARNES, Appellant.

No. 4593.

Supreme Court of Arizona, In Banc.

Jan. 11, 1980.

Rehearing Denied Feb. 20, 1980.

Robert K. Corbin, Atty. Gen., by William J. Schafer, III, and Robert S. Golden, Asst. Attys. Gen., Phoenix, for appellee.

Stanfield, McCarville, Coxon, Cole & Fitzgibbons by David A. Fitzgibbons and Kendra S. McNally, Casa Grande, for appellant.

HAYS, Justice.

Olf Dempsey Barnes appeals from convictions on three counts of assault with a deadly weapon while armed with a hatchet. Appellant was sentenced to not less than ten years nor more than life on each count, all counts to run concurrently.

We have jurisdiction under Art. VI, § 5(3) of the Arizona Constitution and Rule 47(e)(5), Rules of the Supreme Court.

FACTS

About 4:00 a. m. on February 22, 1978, appellant's wife, Delois, awoke to find him, a hatchet in hand, emerging from the bedroom of their youngest daughter. When his wife asked what he had done to the family, appellant replied, "I tried to kill them." After ascertaining that the three children had suffered various blows to the head and face, appellant's wife asked him to summon an ambulance and police.

Appellant walked to the police station near his home. As he approached the dispatcher's booth in the outer lobby, the dispatcher and an officer greeted him and asked him how he was doing. Appellant replied, "Not so well." The officer inquired as to the nature of the problem and appellant stated that an ambulance should be dispatched to his home (giving the address) because he had just taken a hatchet to his children. Upon hearing this, the officer opened the door leading from the lobby into an interior hallway and requested appellant to step inside and repeat his problem.

Appellant repeated the statements. The officer then asked appellant to accompany him to appellant's residence. Appellant replied that he would.

Upon arrival at appellant's home, he was allowed to move about freely. He walked down the hallway, looking into various rooms and asking for his rifle and hatchet.

Having ascertained, after a cursory examination, that a crime had been committed, the officer arrested appellant as appellant spotted his rifle and hatchet on a chair and began to move toward them. The officer then informed appellant of the full panoply of Miranda rights.

Approximately five minutes had elapsed from the time appellant left the station with the officer until the moment of his arrest.

At the police station, appellant was again instructed as to all his Miranda rights. While he was being transported from the station to the hospital, appellant made further incriminating statements. These statements were not in response to questions from police but were spontaneous and interrupted a conversation between an officer and a deputy county attorney.

At a pretrial voluntariness hearing, the court determined that all the statements were admissible, the initial ones because appellant was not in custody, the later ones because appellant made them spontaneously after having twice received complete Miranda warnings.

Appellant raises four issues for our consideration:

1. Was it error to admit the incriminating statements into evidence?

2. Did the trial court improperly admit a statement under the "excited utterance" exception?

3. Did the trial judge comment on the evidence?

4. Was appellant given fair warning that he would be subjected to the enhanced penalty provisions of a lesser included offense?

I. INCRIMINATING STATEMENTS

Appellant asserts that virtually all his statements are inadmissible as the result of custodial interrogation. We do not agree. It is undisputed that appellant calmly entered the police station and made the most damaging statements in response to a general inquiry when the police had absolutely no reason to suspect that any crime had been committed. Still not under arrest, he voluntarily repeated the statements and accompanied the officer to his (appellant's) residence.

Appellant would have us hold that when he entered the interior hallway of the police station, he was "in custody" and all statements made thereafter should be inadmissible. In our opinion, appellant was not in custody until he was arrested at his home. Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977), made it clear that questioning at a police station does not Per se necessitate Miranda warnings:

Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him "in custody." It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.

We find the circumstances of the instant case much less indicative of a "coercive environment" than the situation in Mathiason, Supra. There, the policeman Knew that a crime had been committed, suspected Mathiason, and left a note requesting that Mathiason contact him. After a half-hour interview during which Mathiason was informed that his fingerprints had been found at the scene of a burglary (which was untrue), the officer told Mathiason that he was free to go. He was later arrested and charged with the burglary.

In the case Sub judice, appellant calmly walked into the police station and announced that he had taken a hatchet to his children. Judging simply by appellant's composed appearance, police had no way of knowing whether in fact any crime had been committed. The officer requested he did not order appellant to accompany him. Appellant was not handcuffed or restrained in any manner.

At his home, appellant was permitted to move about freely until the officer had seen the children and had satisfied himself that a crime had been committed. Up to this point, we do not think that a reasonable man would have believed that he was deprived of his freedom of action in any significant way. State v. Hatton, 116 Ariz. 142, 568 P.2d 1040 (1977).

The remaining statements were made spontaneously after appellant had twice received complete Miranda warnings.

Finally, appellant's wife testified to his making the most incriminating statements and testimony by the officers as to those comments was purely cumulative. We find no error.

II. DID THE TRIAL COURT IMPROPERLY ADMIT A STATEMENT UNDER THE "EXCITED UTTERANCE" EXCEPTION?

Within three minutes after his arrival at appellant's home, the police officer observed that Dickey Barnes, appellant's son, had blood on his head and face. The officer testified that Dickey appeared very sluggish and disoriented.

In response to the officer's question as to what had happened, Dickey stated that his father had struck him several times. At the time of trial, Dickey had no recollection of the occurrence. Appellant argues that the statement does not fall within the purview of an excited utterance because the declarant was not in an "agitated" state and he answered in response to a question, not spontaneously.

We do not agree. The criteria for determining admissibility of a statement as an excited utterance are: 1) a startling event; 2) the words must be spoken soon after the event so as not to give the person time to fabricate; 3) the words spoken must relate to the startling event. State v. Perry, 116 Ariz. 40, 567 P.2d 786 (App.1977). Lapse of time is only one factor to be considered. If the totality of the circumstances indicates that the statement was made in a state of shock or his demeanor and actions had been altered, it is admissible, even though not made immediately after the event. State v. Ritchey, 107 Ariz. 552, 490 P.2d 558 (1971).

Neither is a statement necessarily inadmissible because it is made in response to a question. Ritchey, Supra ; State v. Woolery, 93 Ariz. 76, 378 P.2d 751 (1963); State v. McLain, 74 Ariz. 132, 245 P.2d 278 (1952).

The statement was made approximately twenty minutes after appellant's wife awoke to find him with a hatchet in his hand. The officer testified that Dickey Barnes was covered with blood, disoriented, and had his head in his hands. Considering all the circumstances, we hold that the statement was properly admitted.

III. DID THE COURT COMMENT ON THE EVIDENCE?

Next, appellant complains that the trial court, by asking questions, helped the state lay the foundation for the introduction of the deadly weapon, the hatchet, and that such questioning constituted a comment on the evidence in violation of Art. 6, § 27 of the Arizona Constitution:

The Court: I want to ask one question. Explain the procedure. What happens to items like this when they are brought to your property custodian? What happens to them?

(Witness' response.)

The Court: What type of security is involved to insure that no one else gets into where these properties are stored?

(Witness' response.)

We believe that the comments appellant finds objectionable were simply an attempt to clarify the chain of custody procedures used to insure the integrity of evidence submitted to the police for analysis.

In order to comment on the evidence, the court must express an Opinion as to what the evidence proves. State v. Skaggs, 120 Ariz. 467, 586 P.2d 1279 (1978). Here, the court did nothing more than elicit additional details about police procedures for collecting and preserving evidence. There is not the remotest insinuation as to what the evidence establishes. We find no error.

IV. SENTENCE

Appellant was...