State v. Cobb

• Decision Date: 01 June 1977
• Docket Number: Nos. 3551 and 3552,s. 3551 and 3552
• Citation: 115 Ariz. 484,566 P.2d 285
• Parties: STATE of Arizona, Appellee, v. John David COBB, Appellant.
• Court: Arizona Supreme Court

Page 285

566 P.2d 285

115 Ariz. 484

STATE of Arizona, Appellee, v. John David COBB, Appellant.

Nos. 3551 and 3552.

Supreme Court of Arizona, In Banc.

June 1, 1977.

Bruce E. Babbitt, Atty. Gen. by William J. Schafer, III, and Shirley H. Frondorf, Asst. Attys. Gen., Phoenix, for appellee

Ross P. Lee, Maricopa County Public Defender by Joel M. Glynn, Deputy Public Defender, Phoenix, for appellant.

HAYS, Justice.

Appellant John David Cobb was convicted by a jury of armed robbery, burglary first degree while armed with a gun or deadly weapon, and wearing a mask in the commission of a crime. Appellant was, at the time of these convictions, on probation for two prior convictions of armed robbery in 1974. Based solely on the current convictions, the trial court, pursuant to 17 A.R.S. Rules of Criminal Procedure, rule 27.7(e), revoked appellant's probation status without a hearing. On the armed robbery and burglary, appellant was sentenced to concurrent terms of not less than five years nor more than life, and on the "mask" offense, a concurrent term of not less than one year nor more than five. Those three sentences were to be served consecutively, however, to the sentences given on the two prior armed robberies. For those, appellant was sentenced to two concurrent terms of not less than five years nor more than life.

We have jurisdiction of this appeal pursuant to A.R.S. §§ 13-1711 and 12-120.21(A)(1).

In the early morning hours of January 16, 1976, two black men gained entrance to the Phoenix home of an elderly couple, the Carlsons, by a ruse. One of the men was of a large build, described by Mrs. Carlson as "6'1 , 240 pounds." He wore a cap or hat pulled down over his face, a dark jacket, and was carrying a shotgun, which he used to frighten and rob the victims. Items taken included a rental television, a stereo with speakers and a jewelry box containing various pieces of costume jewelry.

The police were notified immediately after the intruders left. One of the first officers at the scene was David Ford. Familiar with appellant's prior armed robbery record, and given the victim's description, which matched the appellant's unusual physique, Officer Ford proceeded to appellant's home, which was very near the home of the victims. He found appellant out on the front porch of his home and went up to appellant to talk with him, since he had done so on prior occasions when he was seeking information on crimes committed in this particular area of the city. They talked for awhile and Officer Ford asked appellant "if he knew who pulled the armed robbery down the street." Appellant gave the officer a few vague leads regarding some other neighbors and people who had run between his house and the house next door.

At this same time, it appears from the record, that other policemen had arrived on the scene and were also questioning the victims' and appellant's neighbors to discover if anyone had seen or heard anything concerning the crime.

Officer Ford testified at several different hearings in this matter that he was on and off appellant's property several times, talking to him about the robbery and leads As Officer Ford was leaving appellant's front porch on one of these occasions, using his flashlight he saw a brooch lying in appellant's driveway. He picked it up, showed it to another officer and told that officer he was going to return to the victims' home to see if they could identify it. In addition, two other pieces of costume jewelry were found in the roadway and gutters in front of appellant's home. In response to defense counsel's question, "from what position did you observe the brooch?", Officer Ford answered, "I almost stepped on it."

given him by appellant. At no time did appellant appear uncooperative or ask the officer to leave the premises.

These items were, indeed, shown to and identified by Mrs. Carlson as her jewelry which had been in the stolen jewelry box.

While the police had been investigating in the neighborhood, Mrs. Carlson found a button in her home which she did not recognize as coming from any of her own or her husband's clothing and which was not there before the robbery. This, too, was turned over to the police. Another officer, William Strauss, in the course of the investigation, asked appellant's consent to search his house. Appellant consented only to Sgt. Strauss standing in the doorway and peering into the living room. Strauss observed a dark jacket, walked into the house and seized it. In front of appellant, Strauss and the officer in possession of the button compared it to the buttons on the jacket. Since they were identical, appellant was placed under arrest, advised of his rights, and transported to the police station.

Before trial, this seizure was challenged at a suppression hearing, and the motion was granted. The jacket and button, and all reference thereto, were suppressed by the trial court.

After transporting appellant, he was left alone in an interrogation room for about seven hours while the police secured a search warrant for appellant's home and executed it. During this period, appellant was never questioned by police.

The search of appellant's home produced virtually all the items stolen in the robbery, as well as the accomplice, Clifford Matthews, a juvenile, who later testified for the state against appellant. When the search was completed and the results conveyed to Detectives Donovan Stovall and Dave Lott, they entered the interrogation room, where appellant was still waiting, and began questioning him. Appellant confessed within a very short time. He later sought to have the confession suppressed based on the illegal seizure of the jacket, which led to his illegal arrest. Finding the police supplied the magistrate with a sufficient amount of information to cause the search warrant to issue, even after striking the references to the jacket and button, the trial court refused to suppress the confession.

The appellant raises the following issues on appeal:

1. Did the trial court err in failing to instruct the jury regarding the voluntariness of appellant's confession, even though the instruction was not requested by defense counsel?

2. Did the trial court err in failing to suppress the brooch found on appellant's property?

3. Did the trial court err in failing to suppress the fruits of the crime found pursuant to the search warrant?

4. Did the trial court err in failing to suppress appellant's confession?

5. Was it error to admit into evidence a certified copy of appellant's prior convictions?

6. Did the failure of the state to produce a tape made of appellant's interrogation deny appellant due process?

7. Must the order revoking appellant's probation be reversed?

8. Did the trial court erroneously sentence appellant on the prior armed robberies after revoking his probation?

INSTRUCTING THE JURY

The trial court did not instruct the jury as to the manner in which defendant's confession should be considered in their deliberations, and no request for such instruction We are persuaded by the reasoning and holding in Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), that absent a request by defendant, failure to give such instruction is not fundamental error, requiring reversal. State v. Pulliam, supra, and the cases following it are specifically overruled on this point.

was made by the defendant. We are aware that heretofore this has been held to be reversible error. State v. Pulliam, 87 Ariz. 216, 349 P.2d 781 (1960).

Justice White, delivering the opinion of the court in Lego v. Twomey, supra, said:

"We also reject petitioner's final contention that, even though the trial judge ruled on his coercion claim, he was entitled to have the jury decide the claim anew. To the extent this argument asserts that the judge's determination was insufficiently reliable, it is no more persuasive than petitioner's other contentions. To the extent the position assumes that a jury is better suited than a judge to determine voluntariness, it questions the basic assumptions of Jackson v. Denno ; it also ignores that Jackson neither raised any question about the constitutional validity of the so-called orthodox rule for judging the admissibility of confessions nor even suggested that the Constitution requires submission of voluntariness claims to a jury as well as a judge. Finally, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), which made the Sixth Amendment right to trial by jury applicable to the States, did not purport to change the normal rule that the admissibility of evidence is a question for the court rather than the jury. Nor did that decision require that both judge and jury pass upon the admissibility of evidence when constitutional grounds are asserted for excluding it. We are not disposed to impose as a constitutional requirement a procedure we have found wanting merely to afford petitioner a second form for litigating his claim." 404 U.S. 477, 489-90, 92 S.Ct. 619, 627.

In the future, due process will be adequately served in Arizona if the trial judge alone determines, before trial, the voluntariness of any admissions or confessions of an accused. However, if the defendant requests the voluntariness question be presented to and decided by the jury as well, the trial court must then give the appropriate instruction.

FAILURE TO SUPPRESS BROOCH

Appellant argues that the finding and seizure of the brooch was the result of a "general exploratory search" in violation of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). He argues further that a driveway is within the curtilage of the home and therefore a place protected against unreasonable searches.

There is no search within the meaning of the Fourth Amendment where the objects seized are within the plain view of a police officer who has the right to be in the position to view the objects. State v. Childs, 110 Ariz. 389, 519 P.2d 854 (197...