State v. Cook, 3519--PR

Citation564 P.2d 877,115 Ariz. 188
Decision Date25 April 1977
Docket NumberNo. 3519--PR,3519--PR
PartiesSTATE of Arizona, Appellee, v. Alva COOK, Appellant.
CourtSupreme Court of Arizona

Page 877

564 P.2d 877
115 Ariz. 188
STATE of Arizona, Appellee,
Alva COOK, Appellant.
No. 3519--PR.
Supreme Court of Arizona, In Banc.
April 25, 1977.

[115 Ariz. 189]

Page 878

Bruce E. Babbitt, Atty. Gen., William J. Schafer III, Chief Counsel, Crim. Div., Cleon M. Duke, Asst. Atty. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender, Anne Kappes, Deputy Public Defender, Phoenix, for appellant.

GORDON, Justice:

Appellant was convicted in a jury trial of first degree burglary (in violation of A.R.S. §§ 13--301 and 13--302) attempted armed robbery (in violation of A.R.S. §§ 13--641, 643, 108 and 110), attempted rape (in violation of A.R.S. §§ 13--611, 614, 108 and 110), and kidnapping (in violation of A.R.S. § 13--491). He was sentenced to serve concurrent sentences of no less than ten years nor more than fifteen years in prison on all counts. The Court of Appeals, Division One, affirmed, State v. Cook, 26 Ariz.App. 198, 547 P.2d 50 (1976). This Court granted review in order to clarify several issues. The opinion of the Court of Appeals is vacated; judgment of conviction and sentence affirmed in part and reversed in part; case remanded on the burglary charge.

Sometime between the hours of 5:30 p.m. September 10, 1974 and 9:00 a.m. the following morning, a burglary occurred at an office (Apartment B) on North 9th Place in Phoenix, Arizona. Items taken included a typewriter, record books and miscellaneous medical equipment used in paramedical examinations for insurance companies. Officer Sheeve of the Phoenix Police Department took the report.

[115 Ariz. 190]

Page 879

At approximately 11:35 a.m. on September 11, appellant appeared at the door of the office and asked the receptionist if he could use the phone. Appellant went behind the receptionist, grabbed her, and held a knife at her neck. He went through her purse for money; finding none, he took her to his apartment next door (Apartment C).

Appellant undressed the victim and himself; the evidence is uncontroverted that he attempted to rape her, but did not. While in appellant's apartment the victim saw items which she recognized as property from the office robbed.

Thereafter appellant forced the victim to drive him various places. When they returned to the address on North 9th Place, the victim ran to the office and was let in by her employer. Neither she nor the employer saw where appellant went after her escape.

The first officer was dispatched to the address on North 9th Place at approximately 12:37 p.m. When he arrived, the officer talked with the victim for '(a)pproximately 30 seconds.' The victim indicated the location of appellant's apartment as well as the fact she had seen items in a drawer which she identified as stolen from the office. The officer testified at the suppression hearing that he asked the victim if the suspect was in the apartment, and that she said she did not know but she thought he was still inside.

This officer, John Hanley, went to appellant's apartment and entered. 1 He testified that he knew immediately that appellant was not there:

'Q. At what point of time did you realize there was no one in the apartment?

'A. After I had been in there about ten seconds. It's an extremely small apartment.'

Officer Hanley saw a typewriter, later identified by the employer as having been stolen from Apartment B, in an open closet. Hanley had heard a police report earlier that day concerning the burglary and the property taken, he testified that he felt the machine he saw in appellant's apartment was the stolen one. 2

Hanley searched the rest of the apartment 'for identification' and found some of the stolen property in drawers, as the victim had related.

Officer Sheeve, who had originally investigated the burglary, arrived after Officer Hanley and searched Apartment C. He, too, came across the drawer of stolen property. Sheeve saw appellant looking into the apartment from outside the kitchen window. Sheeve gave chase and arrested the suspect thereafter identified as appellant.

Officer Hanley advised appellant of his Miranda rights 3 and obtained a valid waiver. Hanley asked whether appellant knew why the Officer was there, and he testified that appellant said 'Yes, I did a rape and a burglary, I'll sign a confession.'$

At the police station appellant was again advised of his constitutional rights and [115 Ariz. 191]

Page 880

made confessions concerning the kidnap, attempted rape, and burglary.

Two issues are presented to us: (1) whether the Rule 11 competency determination was properly made by the trial court and (2) whether evidence seized in a warrantless search of appellant's apartment in his absence should have been suppressed.

The first issue before us related to the process by which defendant's competency to stand trial was established.

On October 24, 1974, defendant made a motion for examination of his competency pursuant to 17 A.R.S. Rules of Criminal Procedure, rule 11.2. 4 Two psychiatrists were appointed by the court. They diagnosed defendant as competent to stand trial and assist in his own defense.

On December 16, 1974, a stipulation was filed, 5 signed by the Deputy Public Defender and Deputy County Attorney. By minute entry on December 13, 1974, the trial judge specifically found that defendant was competent to stand trial and that he understood the nature of the proceedings against See 17 A.R.S. Rules of Criminal Procedure, rule 11.1.

Appellant's trial began January 9, 1975. Before jury selection his attorney again raised the issue of competency to the court. Counsel for both sides agreed to proceed with jury selection before competency was reviewed. In chambers, after jury selection, appellant's attorney expressed the belief that psychiatric examinations conducted in October and November of 1974 might not reflect appellant's current ability to understand the nature of proceedings against him, and that appellant's psychiatric condition had deteriorated. At that time, the court asked appellant if he understood the crimes he was charged with, and he responded '(k)idnapping, attempted rape, attempted armed robbery, burglary.' The court further questioned appellant, and both sides agreed to proceed with trial pending psychiatric re-examination.

One of the court-appointed psychiatrists examined defendant the morning of January 10, 1975. Later in chambers he expressed the opinion that appellant's condition had not changed significantly since the October, 1974 examination, and that appellant remained competent to stand trial. Neither attorney questioned the psychiatrist.

Appellant contends that he was denied procedural due process when the issue of his competency to stand trial and aid in his defense was decided on the written psychiatric reports submitted by stipulation. He also alleges that his right to be present was abridged by the discussions held in chambers after commencement of the trial.

We recently resolved the issue of waiver of appellant's presence at competency-related hearings in State v. Blier, 113 Ariz. 501, 557 P.2d 1058 (1976). Since these facts fall within our holding in Blier, supra, appellant's allegations of error must fall. In Blier we were concerned with the presence of '* * * any indication in the record that the defendant is dissatisfied with his legal representation.' 113 Ariz. 503, 557 P.2d at 1060. We find no indication in this record that appellant was dissatisfied with the procedures followed or with representation of counsel.

Appellant next cites error in the procedure followed during the in-chambers conferences held January 9 and 10. We view the trial court's actions therein as falling within the initial requirement of 17 A.R.S. Rules of Criminal Procedure, rule 11.3(a) that a court determine whether 'reasonable grounds' for a competency examination exist. This was a preliminary determination of reasonable grounds only. [115 Ariz. 192]

Page 881

As such, it does not rise to the level of a hearing. No change in appellant's condition was found. 17 A.R.S. Rules of Criminal Procedure, Rule 11.6 was never triggered. Blier, supra, again negates any contention relating to appellant's absence from the conferences in chambers. Furthermore, the fact that the psychiatrist's re-examination and conference in-chambers occurred after jury selection is irrelevant, particularly since defense counsel made no motion to the court relating to competency after the commencement of the trial.

The second issue before us relates to admissibility of evidence seized in a warrantless search of appellant's apartment. 6 We view the facts in the light most favorable to support the trial court's ruling on the motion to suppress. State v. Childs, 113 Ariz. 318, 553 P.2d 1192 (1976); State v. Verdugo, 109 Ariz. 391, 510 P.2d 37 (1973).

The record, without contradiction, shows that the officers failed to fulfill the clear requirements of A.R.S. § 13--1411 7 when they entered appellant's home. 8 The appellant and the victim had returned to the address on North 9th Place following their travels to other parts of the city. The victim then escaped, and the police were called. When the officers arrived, the victim told them briefly of the attempted rape and kidnap. She told them where she thought the suspect might then be, but not whether he was armed or when she had last seen him. Officer Hanley then went to appellant's apartment and pushed open the door without either knocking or announcing his authority and purpose.

The entry into appellant's apartment was unlawful under A.R.S. § 13--1411. The requirements of the statute are clear and unambiguous, and place as conditions precedent to a lawful entry the obligation that officers announce their authority and purpose and be refused entry.

This statute embodies the time-tested mandate of the people of Arizona that the police respect their right to be left alone. In ruling on the announcement required by a similar statute,...

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