State v. Fimbres

• Decision Date: 21 September 1972
• Docket Number: No. 2362,2362
• Parties: The STATE of Arizona, Appellee, v. Joseph Madrid FIMBRES, Appellant.
• Court: Arizona Supreme Court

Page 14

501 P.2d 14

108 Ariz. 430

The STATE of Arizona, Appellee, v. Joseph Madrid FIMBRES, Appellant.

No. 2362.

Supreme Court of Arizona, In Division.

Sept. 21, 1972.

Gary K. Nelson, Atty. Gen., by William P. Dixon and John S. O'Dowd, Asst. Attys. Gen., Phoenix, for appellee.

S. Jeffrey Minker, Tucson, for appellant.

CAMERON, Vice Chief Justice.

This is an appeal by the defendant from the revocation of his probation (§ 13--1657 A.R.S.) and a sentence of from 6 to 7 years for the crime of armed robbery (§§ 13--641 and 13--643, subsec. B, A.R.S.).

We are called upon to determine whether the court violated the defendant's constitutional privilege against self-incrimination when it allowed the probation officer to testify as to statements made to him by the defendant.

The facts necessary for a determination of the matter on appeal are as follows. The defendant was adjudged guilty of the crime of robbery on 24 April 1970 after a jury trial and verdict. Imposition of sentence was suspended and he was placed on probation for 5 years, 'conditioned, however, on good behavior and on compliance with such other conditions of probation as the Court may designate.' The court imposed 'Additional Conditions' and ordered:

'1. That you violate no law.

'2. That you make reports to and carry out the orders of the Probation Officer.'

On 10 March 1971 a petition to revoke probation was filed by defendant's probation officer which stated:

'* * * The subject has failed to comply with the conditions of his probation in the following manner:

'1. The subject participated in a burglary of a residence and received stolen property on March 5, 1971.

* * *'

A hearing was held upon the petition at which time defendant was represented by counsel. At the time of the hearing, defendant had been arrested and charged with the burglary but had not been convicted. The defendant testified in his own behalf. For example:

'THE COURT: This Moreno that you were talking about, was he involved in this burglary too?

'A I don't know.

'MR. MINKER: I object to that, your Honor.

'THE COURT: All right. I am talking about the man that it is alleged here is. That is what I was trying to find out.

'MR. MINKER: I would advise the defendant not to answer that question.

'THE COURT: All right. I have no further questions. I will ask Mr. Ryerse to be sworn.'

The probation officer (Mr. Ryerse) testified in part as follows:

'Q As to the first one, to the burglary of a residence and receiving stolen property, were you notified that the defendant had been arrested for this?

'A I actually noticed it in the newspaper, that he had been arrested for a felony burglary on March 5, 1971.

'Q Concerning this, did you have a conversation with the defendant?

'A Yes, your Honor.

'MR. MINKER: May I ask a question on voir dire?

'THE COURT: No, not at this time. This is a revocation of probation hearing. This is not a trial and we don't follow the same rules of evidence.

'MR. MINKER: May I make an objection for the record?

'THE COURT: You may.

'MR. MINKER: I will object to any conversations Mr. Ryerse had with the defendant concerning a burglary on March 5, 1971 unless there is a showing that he was advised of his Constitutional rights under the Miranda case.

'THE COURT: Objection overruled.

'A The defendant came into my office on the 10th of March and told me that he had gotten into trouble again. I asked him what the nature of the trouble was and he explained to me that he did get picked up by these two other individuals, Moreno and Sepulveda (phonetic) if that is the way you pronounce his name, and that they took him to this address and that they did this thing, that they burglarized a house. He didn't go into great detail. He said he did it and the only reason he did it was because he didn't want them to think that he was chicken.'

The probation officer also stated:

'A His performance on probation has been very marginal, and I felt that he needed to make some positive move or to do something to keep himself on probation; in other words, to put it bluntly, he was on the verge of revocation of his probation since about the second month he went on probation, as far as I was concerned.

'Q You said he should make a move to help himself out. Would going to work for Sundt Construction Company be that type of move?

'A Well, no. I continuously receive reports from his wife, his family, his neighbors, and people who were sent to prison or people with whom I came in contact during my investigation of presentence reports, and they say, they told me various alleged things which he was doing which indicated he was associating with improper people, and so on.'

It is the contention of the attorney for the defendant that defendant's privilege against self-incrimination was violated when the probation officer was allowed to testify as to statements made to him by the defendant. Although...