State v. Finehout, 5372
| Decision Date | 25 May 1983 |
| Docket Number | No. 5372,5372 |
| Citation | 665 P.2d 570,136 Ariz. 226 |
| Parties | STATE of Arizona, Appellee, v. David Allen FINEHOUT, Appellant. |
| Court | Arizona Supreme Court |
Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Linda A. Akers, and Michael D. Jones, Asst. Attys. Gen., Phoenix, for appellee.
Michael D. Tidwell, Apache Junction, for appellant.
Defendant, David Allen Finehout, was convicted of robbery, A.R.S. § 13-1902(A), burglary, A.R.S. § 13-1507(A), and first-degree murder, A.R.S. § 13-1105(A)(2), and sentenced to life imprisonment without possibility of parole for twenty five years, A.R.S. § 13-703. We have jurisdiction to review his conviction and sentence under Ariz. Const. art. 6 § 5(3), and A.R.S. §§ 13-4031, 13-4035.
The issue we must resolve on appeal is whether the trial court erred in refusing to suppress the defendant's confessions before conducting a trial by submission.
The facts needed to resolve the issue are these. The defendant was apprehended at a campsite in Pinal County and taken to the Apache Junction police department at 10:30 p.m. on 26 January 1981. At 11:15 p.m., after being advised of his rights to silence and to legal representation, the defendant signed a waiver of these rights, and was questioned by Sergeant Garcia and Detective Jones between 11:35 and midnight on 27 January. The defendant's statements were not incriminating and their admission is not questioned on appeal. A second interrogation began at 1:55 a.m., and the following occurred at about 2:10 a.m. on 27 January:
When questioned by defendant's counsel, Sergeant Garcia testified:
Detective Jones also testified:
This second interrogation continued until about 2:37 a.m., at which time, after the officers had told the defendant that they had a set of fingerprints and palm prints, as well as hair samples, the defendant stated:
At that point, Sergeant Garcia began to put his cassette recorder away. During this activity, Garcia told the defendant that he was under arrest for lying to a police officer, and that he should have an employee of the sheriff's office or a jailer contact Garcia if "he should change his mind about having an attorney present or wanting to talk to an attorney." According to the police, the defendant asked them why he would want to talk to them, at which time Detective Jones said "It's just better to tell the truth and get it out in the open." After a momentary pause in the conversation, the defendant indicated that he wanted to tell the truth, and the officers asked his permission to resume tape recording his statements. Sergeant Garcia reminded the defendant of his rights, though he did not read them to him, and the defendant indicated he was waiving them. The tape recorder was switched on again at 2:41 a.m., and the defendant subsequently confessed to the homicide. The defendant was then arrested for murder, robbery and burglary. A second confession, made after a re-reading of an accused's rights to silence and representation, was taken at 12:30 p.m. on 27 January 1981, and the defendant made his initial appearance later that afternoon.
The defendant's motion to suppress his confessions was denied, and the matter was thereafter tried by submission on 11 May 1981. The two confessions made by the defendant on 27 January constituted the bulk of the state's evidence at trial, which resulted in his conviction. Sentence was imposed on 6 July 1981, at which time the court rendered judgments of guilt of Burglary of a Residential Structure, Robbery, and First Degree Murder. On 9 October 1981 a hearing was conducted on the defendant's Rule 24.2 motion to vacate judgment. On 14 July 1982, the trial court denied the defendant's motion to vacate judgment. The appeals from the trial judgment and sentences and the denial of the Rule 24.2 motion were consolidated for our consideration.
The defendant asserts that his confession made in the early morning hours of 27 January 1981 was obtained in violation of his state and federal constitutional rights not to incriminate himself. The defendant attempted to invoke these rights on two occasions. The first occasion was when the defendant, in response to police accusations that he was lying, stated "Well, I ain't going to say any more."
We have stated:
Confessions are prima facie involuntary and the burden is on the State to show a confession was freely and voluntarily made. (Citation omitted.) That burden is by a preponderance of evidence. (Citation omitted.) Courts must look to the totality of the circumstances surrounding the giving of the confession, presented to them at "voluntariness hearings," and decide whether the State has met its burden. (Citations omitted.) State v. Knapp, 114 Ariz. 531, 538, 562 P.2d 704, 711 (1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 500 (1978).
If a person subjected to custodial interrogation invokes his right to silence, the interrogation must cease. The United States Supreme Court has stated:
* * * if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.
* * *
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* * * If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. * * * (Footnote omitted.) Miranda v. Arizona, 384 U.S. 436, 445, 473-74, 86 S.Ct. 1602, 1612, 1627-28, 16 L.Ed.2d 694, 707, 723 (1966).
The state contends, however, that the assertion "I ain't going to say any more" is in context ambiguous, and that the ambiguity entitled the detectives to continue their interrogation. We disagree. Even if the defendant's assertion is susceptible to more than one interpretation, the limit of permissible continuing interrogation immediately after the assertion would be for the sole purpose of ascertaining whether the defendant intended to invoke his right to silence, cf. State v. Hicks, 133 Ariz. 64, 74, 649 P.2d 267, 277 (1982), or to waive this right. This limited additional questioning for clarification is consistent with the United States Supreme Court's mandate that the person in custody's "right to cut off questioning" must be "scrupulously honored." See Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313, 321 (1975).
The state contends further, however, that mere advice or exhortation by police officers to an accused to tell the truth is not interrogation and does not render a subsequent confession involuntary, citing our Court of Appeals' opinion in State v Hall, 120 Ariz. 476, 479, 586 P.2d 1288, 1291 (App.), vacated 120 Ariz. 454, 586 P.2d 1266 (1978). We note that Hall, supra, preceded the definition of interrogation set forth by the United States Supreme Court which stated that interrogation
refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This...
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...in the Defendant's invocation of his right to remain silent, the confession would still not be admissible. In State v. Finehout, 136 Ariz 226, 229, 665 P.2d 570, 573 (1983), the supreme court [E]ven if the defendant's assertion is susceptible to more than one interpretation, the limit of pe......
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...would be for the sole purpose of ascertaining whether the defendant intended to invoke his right to silence." State v. Finehout, 136 Ariz. 226, 229, 665 P.2d 570, 573 (1983); see State v. Flower, 161 Ariz. 283, 287, 778 P.2d 1179, 1183 (1989) ("[B]y failing to at least clarify [the defendan......
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...be "scrupulously honored." See Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313, 321 (1975). State v. Finehout, 136 Ariz. 226, 665 P.2d 570, 573 (1983). See generally Wayne D. Holly, Ambiguous Invocations of the Right to Remain Silent: A Post-Davis Analysis and Propos......