State v. Councilman

• Decision Date: 30 October 1969
• Docket Number: No. 1877,1877
• Citation: 105 Ariz. 145,460 P.2d 640
• Parties: The STATE of Arizona, Appellee, v. Paul Ray COUNCILMAN, Appellant.
• Court: Arizona Supreme Court

Page 640

460 P.2d 640

105 Ariz. 145

The STATE of Arizona, Appellee, v. Paul Ray COUNCILMAN, Appellant.

No. 1877.

Supreme Court of Arizona, In Banc.

Oct. 30, 1969.

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

Stanfield, McCarville & Briggs, by Ron L. Briggs, Casa Grande, for appellant.

McFARLAND, Justice.

Paul Ray Councilman, hereafter referred to as defendant, was tried and convicted in 1957 of the crime of first-degree murder and sentenced to life imprisonment. We granted defendant's motion for a delayed appeal from the judgment and sentence of the court.

On January 11, 1957, defendant and four other juveniles were arrested by the highway patrol near Superior Arizona, on the basis of a juvenile warrant from California. At the time defendant was sixteen years of age. Soon after their arrest, the juveniles were taken to the Pinal County Jail and placed in juvenile cells.

On the 13th of January the body of one Al W. Jennings was found near Arlington, Arizona. The deputy sheriff of Maricopa County in charge of the investigation was informed that the juveniles being held in the jail in Florence had items in their possession bearing the name of Al W. Jennings.

After three days of detention in the county jail at Florence, they were transferred to the Maricopa County Jail, where they were separated and individually questioned about the death of Al Jennings.

The juveniles, before coming to Arizona, traveled from California into Mexico; while in Arizona they picked up the deceased Al Jennings. The scene of the crime was near Arlington, Arizona. The defendant, while he was still under the jurisdiction of the juvenile court, made both an inculpatory and an exculpatory statement in answer to questions by a sergeant from the sheriff's office. After other interrogations, a statement was made which was reduced to writing; present at the time were County Attorney Charles Stidham, Probation Officer Harry Broderick, Juvenile Officer of Maricopa County Lieutenant Trejo and court reporter Pat Kimmis.

The following day the juveniles, including defendant, were taken to the 'scene of the crime' for a re-enactment of the crime. They were accompanied by a deputy county attorney, juvenile officers and sheriff's deputies. Thereafter, a hearing was held in the juvenile court, and the defendant was ordered to stand trial as an adult.

On February 27th there was a preliminary hearing conducted by the Honorable R. C. Stanford sitting as a committing magistrate, and the defendant was held to answer to a charge of murder in the first degree. An information was filed against him on February 28, 1957, and his trial began July 25, 1957.

At the trial some of the juveniles testified implicating the defendant in the crime. Deputy Sheriff Watson testified as to statements made to him, and the transcribed statement was admitted in evidence. The evidence showed that the defendant was not represented by counsel before or during the time he made his statement and he had not been taken before a magistrate. The officers stated that they had not presented the juveniles to a judicial authority because the investigation was not complete.

Defendant, in his brief, contends:

'1. It was error to allow statements made by appellant while he was within the jurisdiction of the juvenile court to be used against him in a regular criminal trial after the juvenile court refused to suspend criminal prosecution.

'2. The admission of statements made by appellant while he was within the jurisdiction of the juvenile court, as aforesaid, constituted a violation of his right to due process of law.'

The sole question before this Court is whether a statement made by a juvenile under these circumstances is admissible in his trial as an adult. Officer Watson testified that prior to the taking of the written statement and prior to the oral statement to which Officer Watson testified, the defendant had been detained in a small office at the jail, and that he had kept watch over defendant. He further testified that he did not threaten defendant or promise him anything; that he went to get a glass of water, and when he came back he informed defendant that two of the boys had admitted their part in killing Al Jennings. He then asked defendant if he would like to talk about it. He stated that defendant broke down and cried, and thereafter told him the whole story. This was done before the written statement was made.

The first part of the written and signed statement shows who was present and what was said at that time:

'Q First, young man, I want to ask you your name.

'A Paul Ray Councilman, C-o-u-n-c-i-l-m-a-n.

'Q How old are you, Paul?

'A. Sixteen.

'Q What is you home address?

'A 6007--3/4 Holmes Avenue, Los Angeles 1, California.

'Q Now, then, Paul, we want to ask you some questions in reference to this case. First, I want to introduce the County Attorney, Mr. Charles Stidham, Harry Broderick, the Probation Officer, and Lieutenant Trejo, Juvenile Officer of Maricopa County. My name is Bob Collins, I am a Sergeant in the Sheriff's office, and this is the Court reporter. We want to advise you at this time that you have a right to a lawyer or you have a right to the Probation Officer to be present at the time of this questioning, and this is the Probation Officer, Mr. Broderick. We want to advise you anything you say here may be used against you in court and that you don't have to answer any questions if you don't want to, but if you do answer any questions, it may be used against you. If you want to answer those questions, we will go on with it.'

The record shows that counsel for defendant objected to the admission of the oral statement on the grounds that proper foundation had not been laid, and objected to the admission of the written statement on the ground that defendant was not represented by counsel; he was a boy sixteen years of age; he was not advised of the 'significance of this particular statement that he made'; and it was not shown that the statement was voluntarily made. Counsel pointed out that defendant had been incarcerated in the county jail for several days prior to the making of the statements. Counsel also contended that the statements were not admissible because of § 8--228, A.R.S. (juvenile code) ¹; that the defendants were in custody of the juvenile court at the time of the statements; and that § 8--228, A.R.S., prevented their use in the trial of defendant as an adult.

We have in two recent cases specifically passed upon the questions raised by the defendant in regard to the admission of Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d jurisdiction of the juvenile court and have pointed out that prior to an order by the juvenile court that defendant is to be tried as an adult, he is subject to the jurisdiction of the juvenile court. State v. Cano and Lopez, 103 Ariz. 37, 436 P.2d 586; and State v. Maloney, 102 Ariz. 495, 433 P.2d 625. In State v. Maloney, supra, we set forth the principle of law governing statements by juveniles under such circumstances:

'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 ...