State v. Denny

• Citation: 555 P.2d 111,27 Ariz.App. 354
• Decision Date: 17 August 1976
• Docket Number: No. 1,CA-CR,1
• Parties: STATE of Arizona, Appellee, v. Cynthia Maria DENNY, Appellant. 1234.
• Court: Court of Appeals of Arizona

Page 111

555 P.2d 111

27 Ariz.App. 354

STATE of Arizona, Appellee, v. Cynthia Maria DENNY, Appellant.

No. 1 CA-CR 1234.

Court of Appeals of Arizona, Division 1, Department C.

Aug. 17, 1976.

Rehearing Denied Sept. 22, 1976.

Petition for Review Denied Oct. 13, 1976.

Bruce E. Babbitt, Arizona Atty. Gen. by William J. Schafer III, Chief Counsel, Crim. Div. and Stanley L. Patchell, Asst. Attys. Gen., Phoenix, for appellee

Charles Anthony Shaw, Prescott, for appellant.

OPINION

NELSON, Judge.

Cynthia Maria Denny was found guilty of voluntary manslaughter in the death of her husband, Gary Denny, in the early morning hours of September 28, 1974 as a result of a shotgun wound admittedly caused by a shotgun fired by the appellant.

Mrs. Denny was charged with first degree murder on October 7, 1974. After a series of pretrial motions, including a motion for change of venue which was granted, trial was commenced in Flagstaff, Arizona on February 18, 1975. On February 28, 1975, the jury returned a verdict of voluntary manslaughter. Judgment of guilt was entered on the verdict of the jury, and, on April 4, 1975, Mrs. Denny was sentenced to a term of not less than five nor more than ten years in the Arizona State Prison. This appeal followed. For the reasons set forth herein, the judgment of guilt and the sentence thereon are reversed and the cause is remanded for a new trial.

The appellant has denominated some seven questions for review. We have consolidated the questions into four major areas of concern:

I

Were the two inculpatory statements (confessions) of appellant made to police officers immediately after the shooting properly admitted into evidence, one as substantive evidence, and one for purposes of impeachment after she had taken the witness stand in her own defense?

II

Was evidence of prior bad acts of Mrs. Denny properly admitted?

III

Was the jury properly instructed on the issue of 'voluntariness' of the confessions?

IV

Should the jury have been given the option of returning a verdict of involuntary manslaughter based upon the evidence admitted?

I THE CONFESSIONS

The appellant made two inculpatory statements or confessions shortly after the shooting of her husband. One was made at the scene of the shooting, the couple's trailer home. The second statement was made at the police station in the presence of a deputy county attorney and various police officers, and was tape recorded.

Appellant claims both statements were involuntary because of her severe emotional state following the shooting. This claim has no merit. There is no issue here regarding the admonition of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Mrs. Denny was carefully and fully advised of her rights by all of the police officers in question and by the deputy county attorney before the taped interview. There is no claim that the dictates of Miranda were not scrupulously observed.

At the hearing held outside the presence of the jury, Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205 (1964); State v. Owen, 96 Ariz. 274, 394 P.2d 206 (1964), three police officers, the deputy county attorney who conducted the taped interview, four M.D.s, two of whom were psychiatrists, and Cynthia Denny testified.

Each of the police officers described Mrs. Denny as being nervous and at times crying. She expressed continuous concern over her husband's condition. They were all, however, very certain that she was in full possession of her mental faculties and understood what was going. She was described by them as being lucid, responsive, rational and calm. She especially calmed down after the ambulance arrived and transported her husband to the hospital. The import of the deputy county county attorney's testimony was similar.

Dr. Otto L. Bendheim, a psychiatrist called by the defense, testified that Mrs. Denny's mental state at the time of her interrogation immediately following the shooting was not severe and would not in any way vitiate the statements she gave. Dr. Jerry Kendall Wallis, another psychiatrist called by the defense, testified that Mrs. Denny was in a fugue state immediately following the shooting. He described such a condition as a 'hysterical, dissassociated process, whereby the person's identity is narrowed down to a single track and possibly carries out a single drive'. Dr. Wallis was of the opinion that Mrs. Denny could not have understood or appreciated the significance of her statements at the time she was interrogated.

Mrs. Denny herself took the stand at this initial hearing. The essence of her testimony is that she didn't remember much about what was said and that her major concern was for the welfare of her husband. When she was erroneously told her husband was going to be all right--when in fact he was already dead--she said she relaxed.

The other two doctors testified mainly concerning Gary Denny's wounds, the time he was officially pronounced dead, and their communication of that fact to the police officers.

It is the law in this jurisdiction that the trial court's determination of the admissibility of a confession will not be disturbed upon appeal unless a clear and manifest error appears. State v. Edwards, 111 Ariz. 357, 529 P.2d 1174 (1974), State v. Pulliam, 87 Ariz. 216, 349 P.2d 781 (1960). As regards Mrs. Denny's mental state, the evidence amply supports the trial court's view that the statements were voluntarily and freely given.

An additional factor, however, was introduced into the situation prior to the tape recorded statement. In response to Mrs. Denny's repeated requests and continuously expressed concern about her husband's condition, she was advised by one of the police officers that 'he was going to be all right and was going to make it', when in fact the officer had already been informed that Gary Denny had died. The trial court excluded the second confession from use by the State in its case-in-chief because of the misstatement of the police officer.

After Mrs. Denny took the stand in her own defense, the trial court allowed the State to use the second confession for impeachment purposes on the authority of Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). See also: Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975). The holding in Harris, supra, confirmed in Oregon v. Hass, supra, is that a statement or confession obtained in technical violation of the rules in Miranda, supra, although not admissible as direct proof of guilt, may still be admissible for purposes of impeachment 'provided of course that the trustworthiness of the evidence satisfies legal standards.' Harris v. New York, supra, 401 U.S. at 224, 91 S.Ct. at 645, 28 L.Ed.2d at 4. E.g., Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963); Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960).

There is, of course, as indicated above, no claimed violation of Miranda v. Arizona, supra. We do not believe the trial court's extension of the doctrine of Harris v. New York, supra, to confessions obtained by misrepresentation or trickery is warranted and therefore must reverse this case.

The United States Supreme Court in Miranda v. Arizona, supra, devoted considerable time to the issue of obtaining confessions by trickery or deceit. The essence of what happened here is that Mrs. Denny was obviously more interested in finding out how her husband was doing than in talking further with the authorities. Observing this fact, rather than stopping the interrogation and taking Mrs. Denny to the hospital, or telling her the truth that her husband had died, both courses of action which would probably have ended the interrogation at that time, one of the officers simply told her a lie concerning her husband's true condition, and proceeded with the taped interview. In our view, statements obtained in such a fashion do not satisfy legal standards as to trustworthiness, Harris v. New York, supra.

We agree with the New York court in the Post-Harris decision of People v. Utley, 77 Misc.2d 86, 353 N.Y.S.2d 301 (1974);

'Where there are other reasons for the exclusion (reasons other than technical violations of Miranda), however, such as trick, promise, or coercion, the trustworthiness of the statement is placed in issue, and the statement may not be used for any purpose, including impeachment on cross-examination, without a hearing to determine its voluntariness.' 353 N.Y.S.2d at 315. (Bracketed material added)

While the judge here did hold such a hearing, he in fact found the confession to be obtained by misrepresentation and excluded it from use by the State as direct proof of guilt. This finding should have excluded the use of the statement for all purposes. Harris v. New York, supra.

II PRIOR BAD ACTS

Over objection, the State was allowed to introduce evidence, in alleged rebuttal of Mrs. Denny's proof of self defense, that she shot her prior husband some 22 months before. The decision of this Court in State v. Hannon, 5 Ariz.App. 291, 425 P.2d 861 (1967) and the decision of the Arizona Supreme Court in Leonard v. State, 17 Ariz. 293, 151 P. 947 (1915) are cited in support of this proposition. Neither these cases, nor any other cases cited by the State support the introduction of this evidence of a prior shooting as proof of the fact Mrs. Denny did not act in self defense. It was prejudicial error to allow such evidence to be presented to the jury.

The best indication as to what the evidence was introduced for is found in the quotation from the State's closing argument to the jury set forth in the State's own brief:

'There was a piece of evidence which the State introduced in rebuttal that went to the issue of self-defense, whether or not the Defendant should reasonably believe that ...