State v. Graham, 5506
| Decision Date | 09 February 1983 |
| Docket Number | No. 5506,5506 |
| Citation | 135 Ariz. 209,660 P.2d 460 |
| Parties | STATE of Arizona, Appellee, v. Jon David GRAHAM, Appellant. |
| Court | Arizona Supreme Court |
Robert K. Corbin, Atty. Gen. by William J. Schafer, III and R. Wayne Ford, Asst. Attys. Gen., Phoenix, for appellee.
Gordon J. O'Brien, Lake Havasu City, for appellant.
Jon David Graham was convicted by a jury of first degree murder and sentenced to death. Graham was indicted by the Mohave County Grand Jury for the shooting death of Guy Weiss.
According to the appellant, near midnight on the night of the murder, Graham had been drinking and talking with 16-year-old Frank Hausen. The two discussed robbing Weiss, and subsequently Hausen went to his brother's home, took a rifle and cartridges, returned and gave them to Graham. Graham went to Weiss' residence and circled the darkened house several times. Graham then knocked a few times at the door and was about to leave when the house lights came on and the front door opened. Graham turned and fired twice in rapid succession through the still closed screen door. Weiss was hit once in the head and once in the chest. Weiss' body was later found in his Kingman, Arizona home. Graham confessed to the killing saying he had planned to go to Weiss' house to rob him.
We have jurisdiction pursuant to A.R.S. § 13-4031. We affirm the judgment of guilt and conviction, but modify the sentence.
Appellant presents these issues on appeal:
1. Should his confession have been suppressed from evidence because it was taken in violation of the dictates of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)?
2. Was his confession involuntary?
3. Was it error for the trial judge to qualify Kingman Police Detective Mosby as an expert witness in the area of shooting deaths?
4. Was appellant improperly sentenced to death?
Appellant asserts his confession should have been suppressed because it was taken in violation of Miranda, supra.
Prior to being interviewed at the police station, appellant was given Miranda warnings and indicated he understood them. During his conversation with the detectives, appellant requested the tape recorder be turned off. He said, "I wish you'd turn that off for me cause this has nothing to do with this crime" and "if you'd shut that thing off for a minute I could tell you something but I ain't, I ain't gonna say it on that." Officer Doherty refused to turn the recorder off, explaining that it was necessary to protect both of them. Graham continued with his confession. Graham now argues that when he said "I ain't gonna say it on that," he was exercising his privilege against self-incrimination and because questioning did not cease, his confession should have been suppressed. We disagree.
We find that appellant's statements did not constitute an exercise of his right to remain silent. When Graham saw Officer Doherty at the police station, he said, "I've been looking for you, I want to talk to you," and during the interview Graham talked freely about the events surrounding the crime. He was given Miranda warnings and indicated he understood them. The matter appellant wanted to discuss off the record was, he said, unrelated to the crime under investigation and when the detective explained that the tape recorder would have to be left on, Graham continued with his confession. If he had intended to assert his right to remain silent, he could simply have declined to talk further. There was no violation of the dictates of Miranda, supra, and therefore no error in admitting the confession.
Appellant argues his conviction should be overturned because his confession was not voluntarily given.
The state must show by a preponderance of the evidence that a confession was freely and voluntarily made. The trial court must look to the totality of the circumstances in evaluating the voluntariness of a confession and absent clear and manifest error, the trial court's ruling will not be overturned on appeal. State v. Dalglish, 131 Ariz. 133, 639 P.2d 323 (1982).
In examining the circumstances surrounding Graham's confession, we find that on being brought to the police station, Graham said, "I've been looking for you and I want to talk about it." Graham apparently was not tired, hungry or intoxicated. He was given Miranda warnings prior to the interview with Lieutenant Doherty and Detective Mosby at the police station. He talked freely about the events surrounding the crime. There is no evidence of threats or promises made by police to Graham; in fact, Graham was allowed to telephone his mother in Ohio, and when, at one point, he asked that Detective Mosby leave the interview, Detective Mosby left the room. Graham alleges that Lieutenant Doherty's refusal to turn off the tape recorder during the interview constituted a coercive technique by which his will was overborne. We have examined this challenge in our discussion of the previous issue and determined there was nothing improper in the refusal to turn off the tape recorder.
Appellant asserts that the surroundings of the detective's office contributed to the involuntariness of his confession. While it may be unfamiliar and threatening in a small office with two police officers, we cannot say that every confession made at the police station is involuntary. Graham was told, as prescribed by Miranda, supra, of his right to remain silent and have an attorney present. The purpose of these warnings is to help dispel any coercive atmosphere associated with being in police custody. Appellant did not present any evidence of coerciveness at the suppression hearing. The trial judge's finding that the confession was voluntary was based upon substantial evidence and is not clearly erroneous. We affirm the trial court's ruling that the confession was voluntary.
Appellant contends he was prejudiced because the trial judge allowed Kingman Police Detective Mosby to testify about his conclusions made from observations of the murder scene. Detective Mosby testified that he had observed rigor mortis in the victim's body as well as blood and brain tissue. He testified as to his conclusions about how the victim died and how long he had been dead. Appellant says Mosby was not qualified to offer his opinion in these areas since he did not have medical or forensic training.
17A A.R.S. Rules of Evidence, rule 702, provides "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise."
Competence to testify as an expert is a matter largely within the trial court's discretion and a clear abuse of that discretion must be proved to warrant reversal. State v. Passarelli, 130 Ariz. 360, 636 P.2d 138 (1981).
"An expert witness is one who possesses skill and knowledge superior to that of men in general." State v. Watson, 114 Ariz. 1, 12, 559 P.2d 121, 132 (1976) rt.denied%, 430 U.S. 986, 97 S.Ct. 1687, 52 L.Ed.2d 382 (1977). Detective Mosby had been a law enforcement officer for nearly four years and had specialized training in homicide investigation. This training included observation of autopsies and instruction regarding gunshot wounds. Detective Mosby had investigated approximately 20 shooting deaths and 40 to 50 non-fatal shooting incidents. The trial judge did not abuse his discretion in finding Detective Mosby qualified as an expert.
Appellant asserts he was improperly sentenced to death. We agree. We are required to independently review the record and determine whether we believe that the death penalty should be imposed. State v. Watson, 129 Ariz. 60, 628 P.2d 943 (1981).
Arizona Revised Statutes § 13-703(F) and (G) set forth aggravating and mitigating circumstances to be considered in determining whether to impose a sentence of life imprisonment or death. Subsection (E) requires...
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