State v. Cano

• Citation: 103 Ariz. 37,436 P.2d 586
• Decision Date: 01 February 1968
• Docket Number: No. 1707,1707
• Parties: STATE of Arizona, Appellee, v. Frank Vega CANO and Armando Luis Lopez, Appellants.
• Court: Supreme Court of Arizona

Page 586

436 P.2d 586

103 Ariz. 37

STATE of Arizona, Appellee, v. Frank Vega CANO and Armando Luis Lopez, Appellants.

No. 1707.

Supreme Court of Arizona, In Banc.

Feb. 1, 1968.

Darrell F. Smith, Atty. Gen., Gary K. Nelson, Asst. Atty. Gen., for appellee.

Sheldon Stern, Phoenix, for appellant Cano.

Tupper, Skeens, Rapp & Morris, by Edward Crehan Rapp, Phoenix, for appellant Lopez.

McFARLAND, Chief Justice.

Frank Vega Cano and Armando Luis Lopez, hereinafter referred to respectively as Cano and Lopez, were charged, tried, and found guilty of the crime of murder in the first degree, in violation of A.R.S. §§ 13--451 and 13--452. Both defendants were sentenced by the Superior Court of Maricopa County to serve a term of imprisonment for life in the Arizona State Prison. From the verdict and judgment of conviction, they bring this appeal.

Armando Luis Lopez and his cousin and co-defendant Frank Vega Cano were aimlessly driving around the Phoenix-Glendale-Sun City area of Maricopa County on the evening of August 3, 1965. They were driving Lopez's mother's automobile, the driver at all times being Cano, as Lopez had no driver's license. At this time Lopez was seventeen years of age and Cano nineteen. They had some beer in the automobile, part of which had been consumed during the course of the evening.

As they drove out Grand Avenue at approximately midnight of August 3, 1965, defendants stopped at the corner of 111th Avenue and Grand so that Lopez might telephone a girl. While Lopez was making the telephone call, Cano broke into a Chevron service station and removed a number of new tires, seat cushions, and several cans of oil. Lopez then helped Cano load these articles into the car.

Evidence was later presented to show that defendants then left, only to return a few minutes later to retrieve a partially empty bottle of beer which had been left on the premises. They had been there only a very short time when a Youngtown reserve police officer, Herman W. Nofs, arrived at the scene. Officer Nofs was driving a plainly marked police car and was in uniform. He drew his pistol and approached defendants, asking them where they obtained the tires and other articles. Cano then attacked Officer Nofs, striking the gun from his hand, and beating him severely about the head and face with the officer's own blackjack. Lopez picked the gun up from the ground and handed it to Cano who fired several shots into the victim's back. Evidence was presented to the effect that Lopez also fired one or more shots. The two defendants then returned to the car and drove away, taking the gun and blackjack with them. A second police vehicle proceeded to follow them, and a high-speed chase ensued, which resulted in defendants' driving the vehicle off the road and into a ditch, after which they fled on foot. Later that morning they were apprehended at the home of Mrs. Lopez, hidden in a large box of clothing.

Defendants were tried and convicted in a joint trial; and have perfected a joint appeal to this court. However, other than the facts and circumstances of the crime itself, the grounds on which the appeals are based have nothing in common. For this reason we will treat the appeals separately in this opinion, dealing with that of defendant Lopez first.

Armando Luis Lopez

The first five questions presented by defendant Lopez relate to the exculpatory statements and the written confessions of defendant. After Lopez and Cano were apprehended by officers, Sergeant Ezequiel Calles handcuffed them and while in the police car taking Lopez to the Sheriff's Office told him he had a right to a lawyer. Sergeant Calles further testified that they placed Lopez in one of the interrogation rooms. Lopez testified at the hearing on the voluntariness of his confession, and at this time he testified in regard to the events at the time of the crime and did make some statements regarding it. This initial conversation took place in the presence of Sergeant Amos Falls and Sergeant Calles and without the presence of any of Lopez's family or the juvenile probation officer. The next statement was at 11:00 a.m. before Sergeant Falls and Sergeant Calles of the Sheriff's Office, Richard Cawley, a juvenile probation officer, and Blake Willis, a deputy Maricopa County Attorney, Sergeant Calles having previously called the probation officer requesting his presence. Cawley told Lopez at the time that he was entitled to a lawyer, that he did not have to give a statement, and that any statement he did give could be used against him in a court of law. Also, Calles told Lopez specifically to cooperate and tell the truth. Subsequent to this interrogation there was a confrontation of the two defendants in the presence of Sergeant Falls, Sergeant Calles, a Sergeant Felix, Deputy Sheriff James Alandar, Deputy County Attorney Willis, and Cawley. At this time defendant Cano related his story of the evening's events which implicated circumstantially Lopez in firing one of the shots. As a consequence of this Lopez said to Cano in Spanish, 'Don't say that, you are going to get me in a lot of trouble.' To this Cano said, 'Don't you remember that's the way it happened?' Lopez was also quoted as saying at the time that it was a police officer that had been shot, and further he hated cops anyway.

At approximately 2:00 p.m. another interrogation took place before Sergeants Calles and Falls, Virginia Martell, secretary for the Sheriff's Office who took down the proceedings in shorthand, and the probation officer Cawley. This resulted in the confession (Exhibit 31) which was signed by Lopez. This was in the presence of Deputy Sheriffs John Pennick and William Ward and Mrs. Martell. The probation officer Cawley was not present at the time of the signing. The court ruled that it would not permit the introduction of any admissions made prior to the time that the probation officer Cawley was called in, nor any oral confessions or admissions, but permitted the exculpatory statements made at the 11:00 a.m. confrontation between Cano and Lopez and the written confession.

Lopez was then put in the custody of juvenile authorities of Maricopa County. The court appointed counsel to represent Lopez. Cawley was also assigned by the court as probation officer to conduct a preliminary inquiry. On August 1, 1965, it was recommended that Lopez be remanded to the proper authorities or handled as an adult. The court then remanded Lopez to the adult authorities for prosecution.

The main question presented as to the admissibility in evidence of exculpatory statements and written confession is covered by the recent decision of this court, State v. Maloney, 102 Ariz. 490, 433 P.2d 625, in which we said:

'As we see it, an inculpatory statement obtained by the police while the child is within the jurisdiction of the juvenile court is part of the evidence gathering function of that court. The fact that such evidence was never offered to the juvenile court in a hearing to adjudicate whether the child is delinquent does not alter the fact that such an inculpatory statement is evidence. In addition, as we noted above, the court in Harling (Harling v. United States, 111 U.S.App.D.C. 174, 295 F.2d 161 (1961)) impliedly stated that admissions obtained by the police while the child is within the jurisdiction of the juvenile court is evidence gathered in the 'juvenile proceedings.'

'One of the underlying policies of the Juvenile Court Act is to separate the juvenile process from the criminal procedure. Such a policy is necessary to enhance the rehabilitative program of the juvenile court. We hold as a matter of 'fundamental fairness', and because § 8--228, subsec. B, 2 A.R.S., prohibits the use of such evidence, that inculpatory statements made by a child while under the jurisdiction of the juvenile court and before that court waives its jurisdiction, cannot later be used against the child in a subsequent criminal proceeding unless he and his parents are advised before questioning not only of the child's right to counsel and privilege against self- incrimination, but also of the possibility that he may be remanded to be tried as an adult.'

The facts of the Maloney case, supra, and the instant case are similar in that both the exculpatory statement and the written confession were made before Lopez was remanded to adult authorities for trial; hence, they were made while he was within the jurisdiction of the juvenile court. Lopez's parents were not advised of his right to counsel before the questions and of his privilege against self-incrimination, or of the possibility that he might be tried as an adult. Hence the exculpatory statement and written confession, under the holding of this court in State v. Maloney, supra, were not admissible.

There are other questions raised in regard to their admissibility, but it is not necessary to pass on them.

Counsel for Lopez further contends that the court improperly instructed the jury in regard to burglary and intoxication. However, an examination of the case reveals the evidence was sufficient to justify instruction on this subject. The conviction of defendant Lopez is reversed and remanded for new trial.

Frank Vega Cano

Defendant Cano has limited his appeal to the presentation of one major question. Did the State of Arizona sustain its burden of proof in its efforts to rebut Cano's defense of legal insanity at the time of the commission of the act?

This court has recently reaffirmed the rule that once insanity is an issue, the burden of the state is to establish the converse beyond a reasonable doubt. State v. Martin, 102 Ariz. 142, 426 P.2d 639. The fundamental American...