State v. Gilreath

• Decision Date: 28 July 1971
• Docket Number: No. 1609--2,1609--2
• Citation: 107 Ariz. 318,487 P.2d 385
• Parties: The STATE of Arizona, Appellee, v. William GILREATH, Appellant.
• Court: Arizona Supreme Court

Page 385

487 P.2d 385

107 Ariz. 318

The STATE of Arizona, Appellee, v. William GILREATH, Appellant.

No. 1609--2.

Supreme Court of Arizona, In Banc.

July 28, 1971.

Rehearing Denied Sept. 17, 1971.

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

David M. Lurie, Phoenix, for appellant.

STRUCKMEYER, Chief Justice.

William Gilreath was convicted by a jury in Maricopa County Superior Court on March 10, 1965, of first degree murder in the death of his estranged wife who was stabbed during an altercation. The conviction was reviewed by this Court and affirmed on January 12, 1966. See State v. Gilreath, 100 Ariz. 5, 409 P.2d 713. In that appeal, court appointed counsel was unable to find grounds on which an appeal could be based and so was permitted to submit the appeal on the record. The record was reviewed, and the court, finding no error, affirmed the conviction.

Subsequently, the U.S. Supreme Court decided Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in which the court outlined the procedure counsel must follow when he has examined a criminal trial record and finds no merit to the appeal. Anders requires that, among other things, an attorney must submit a brief referring to anything in the record that might arguably support the appeal. Since no such brief was originally submitted, thus denying the defendant the constitutional right of the assistance of an advocate, we agreed to a re-opening of the appeal. The judgment of conviction is again affirmed.

Gilreath argues first that the lower court erred in admitting into evidence the admissions of the defendant made to the police at the second and third interrogation sessions where he was not clearly informed of his right to remain silent, even though he was so warned prior to the first interrogation session.

On this appeal, only the constitutional requirements of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, are applicable, since the decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, was after this case was finally determined on appeal. Miranda is not retroactive, Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. However, the explanations of Escobedo as laid down in Miranda are applicable, State v. Anderson, 102 Ariz. 295, 428 P.2d 672 at 675. The principle enunciated in Escobedo with which we are here concerned is that which requires the police to inform the accused of his absolute right to remain silent in the face of an accusation.

In the instant case, the defendant was interrogated on three occasions: (1) December 13, 1964, at 2:30 a.m., (2) some time in the afternoon of the same day, and (3) on December 14, 1964, at 1:15 p.m. At the first interrogation, he was advised of his right to remain silent, but on the subsequent interrogations he was not so advised. Thus, the issue is: Must an accused be advised of his constitutional rights at subsequent interrogation sessions as well as the first? We are of the view that he need not be, at least if the time between interrogations is not unduly extensive. 'Once a defendant is fully and fairly apprised of his rights, there is no requirement that warnings be repeated each time that questioning is commenced.' State v. Quinones, 105 Ariz. 380 at 382, 465 P.2d 360 at 362 and citations. Here, the defendant was in custody on a charge of murder from the time of his first interrogation. The subsequent interrogations took place some twelve and thirty-six hours, respectively, after the first interrogation. Further wrnings were not required, lacking circumstances which might alert the officers that an accused may not be fully aware of his rights. In State v. Magee, 52 N.J. 352, 245 A.2d 339, the second interrogation took place two and one-half days after the first interrogation at which the warnings were given, and in Tucker v. United States, 375 F.2d 363 (8th Cir.) the second interrogation took place one and one-half days after first interrogation at which the warnings were given. And see Maguire v. United States, 396 F.2d 327 (9th Cir.).

The second question suggested by the record is whether the court should have declared a mistrial on its own motion for the misconduct of counsel in the absence of a specific request. The circumstances of the misconduct were that during cross-exmination of the defendant by the prosecutor, defendant's counsel, becoming upset at the line of questioning, abruptly stood up and threw a file in the air, thus sending papers flying throughout the courtroom. Affidavits presented on appeal suggest that this may have had an adverse effect on the jury against the defendant.

The rule is well settled in Arizona that the failure of counsel to object constitutes a waiver, and there is no basis for appeal. See State v. Phillips, 102 Ariz. 377 at 382, 430 P.2d 139. It is, however, subject to the exception that a court should notice defects on its own initiative which affect substantial rights, principally those affecting constitutional rights, solely to prevent a miscarriage of justice. Patton...