State v. Christopher

• Decision Date: 18 July 1969
• Docket Number: CA-CR,No. 2,2
• Citation: 457 P.2d 356,10 Ariz.App. 169
• Parties: The STATE of Arizona, Appellee, v. John Lincoln CHRISTOPHER, Appellant. 146.
• Court: Arizona Court of Appeals

Page 356

457 P.2d 356

10 Ariz.App. 169

The STATE of Arizona, Appellee, v. John Lincoln CHRISTOPHER, Appellant.

No. 2 CA-CR 146.

Court of Appeals of Arizona.

July 18, 1969.

Rehearing Denied Sept. 3, 1969.

Gary K. Nelson, Atty. Gen., by Carl Waag, Asst. Atty. Gen., Phoenix, for appellee

Louis L. Deckter, Tucson, for appellant.

KRUCKER, Judge.

Defendant-appellant, John Lincoln Christopher, was informed against for the crimes of burglary and grand theft, or, in the alternative, receiving stolen property. The trial court, sitting without a jury found him guilty of second-degree burglary and grand theft and not guilty of receiving stolen property. He was sentenced to not less than four nor more than five years. This appeal followed.

Construing the facts in a light most favorable to sustaining the conviction, they are as follows. The defendant, his wife, Lupe Navarro, and James Higgenbottom, rented a house adjacent to that of Mr. and Mrs. Warrick. The Warricks went to Stockton, California for Christmas and on January 1, 1968, the Warricks' lessor noticed the Warrick residence had been broken into. The police were notified. Upon their return, the Warricks ascertained that a television, sewing machine, broom and bucket, quilt, clothes, jewelry, radio-phonograph, coffee pot, dishes, skillet, mixer and other items were missing. A chance meeting between Mr. Warrick and defendant revealed that defendant might have a television set similar to that of Mr. Warrick. That evening the Warricks went to defendant's house and identified their TV and a quilt. They took them home. Several days later, the Warricks noticed that defendant was moving, and in the pickup truck they were using the Warricks observed a broom and bucket belonging to them. The police were recalled, and on going to defendant's new residence they At trial, defendant moved to prohibit admission of testimony as to his conduct and statements subsequent to the initial conversation between himself and Mr. Warrick. He claimed that he had been acting under the promise of Mr. Warrick, admitted by him in testimony, that if defendant could return all his goods he would give him a reward of $25 and that the law wouldn't be involved. The trial court denied the motion, and defendant challenges this ruling. He also maintains the convictions were not supported by sufficient probative evidence. Lastly, defendant claims it was error for the court to allow an amendment to the initial information when the initial information was at all times fatally defective.

discovered what appeared to be more of the Warricks' missing property.

ADMISSION OF EVIDENCE

Did 'promises of immunity' by the victim require suppression of evidence obtained as a result therefrom? There is no dispute as to the interchange which took place between defendant and Mr. Warrick. Mr. Warrick testified:

'I said, 'If you get all of my stuff and bring it back to my house and put it in my house like you got it I'll give you $25.00' * * * and I said, 'If you bring the stuff back and put it back in my house the law won't be involved.'"'

The trial court held that the statements made were not promises of immunity and that nothing defendant said or did was pursuant to this statement.

In State v. McFall, 103 Ariz. 234, 439 P.2d 805 (1968), the Arizona Supreme Court held that:

'A confession to be free and voluntary within the meaning of the Fifth Amendment to the Constitution of the United States must not have been obtained by 'any direct or implied promises, However slight * * *'.' (Emphasis in original.

And In State v. Hess, 9 Ariz.App. 29, 449 P.2d 46 (1969), this court said in dictum:

'A confession made to a private individual, neither employed by nor acting for the State, may, nevertheless, be involuntary in case it was induced by promises that no complaint to the authorities would be made. Lawton v. State, 152 Fla. 821, 13 So.2d 211 (1943); Fisher v. State, 379 S.W.2d 900 (Tex.Cr.App.1964); State v. Ely, 237 Or. 329, 390 P.2d 348 (1964).'

The general proposition that a confession and/or admission made to civilians as well as police officers must meet some form of voluntariness test has been recently upheld in several cases. People v. Berve, 51 Cal.2d 286, 332 P.2d 97 (1958); Schaumberg v. State, 83 Nev. 372, 432 P.2d 500 (1967); Commonwealth v. Chase, 350 Mass. 738, 217 N.E.2d 195 (1966); McElroy v. State, 204 So.2d 463 (Miss.1967); Mefford v. State, 235 Md. 497, 201 A.2d 824 (1964).

Ultimately, however, the question of voluntariness is a question of fact, as indicated in Hess. We do not believe Hess means that statements made to private persons must meet the same stringent tests as those made to police officials, State v. Lombardo, 104 Ariz. 598, 457 P.2d 275 (filed, July 7, 1969), nor do they have the same inherent dangers elaborated upon in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The three cases cited in Hess stand for the rule that pressures acting upon an individual can be used to evaluate the voluntariness of his statements or conduct.

In the instant case, the trial court analyzed the statement and felt it could not be construed as a promise of immunity. The trial judge said that if the statement had been '* * * 'You go ahead and confess and I won't prosecute you' * * *' then the issue would have been arguably presented, but he believed the statement as made was not a promise of immunity. In addition, defendant testified that much of his motivation in giving back the television and cooperating with Mr. Warrick was that he thought it was stupid of Higgenbottom to steal stuff from next door and then leave

it around, especially as he himself was on probation. We agree with the trial court's determination that defendant's statements and conduct were voluntary.

SUFFICIENCY OF EVIDENCE

Defendant next contends that there was not sufficient probative evidence to support the finding of the trial court.

It is the function of the trial court, not the appellate court, to judge the credibility of witnesses and the reviewing court is bound by that decision. Hyder v. Barton Hat Co., 29 Ariz. 380, 241 P. 959 (1926); Jackson v. Griffin, 39 Ariz. 183, 4 P.2d 900 (1931); Carrasco v. Carrasco, 4 Ariz.App. 580, 422 P.2d 411 (1967).

The testimony at the trial presented two distinct versions of the crime committed. Defendant, along with his wife and the girl living with them, testified that the burglary had been committed by James Higgenbottom, the other member of their household, while the three had been babysitting. They said all the items stolen were in the house when they returned that night. James Higgenbottom, on the other hand, testified that defendant stole the items, and that he and the girls had originally agreed to protect defendant because he was on probation, but that he (Higgenbottom) ultimately backed out. We defer to the trial court's determination that defendant had been the actual thief, as he had the opportunity to view the witnesses and evaluate their credibility.

SUFFICIENCY OF INFORMATION

Defendant's last contention relates to the propriety of the information and the failure of the trial court to dismiss it and an amendment thereto. The original information alleging burglary, grand theft and receiving stolen goods was challenged by defendant as being not specific in supplying brand names and serial numbers of the items stolen. ¹ The...