State v. Herman

• Decision Date: 16 May 1966
• Docket Number: No. 1,CA-CR,1
• Citation: 414 P.2d 172,3 Ariz.App. 323
• Parties: STATE of Arizona, Appellee, v. Mark A. HERMAN, Appellant. 70.
• Court: Arizona Court of Appeals

Page 172

414 P.2d 172

3 Ariz.App. 323

STATE of Arizona, Appellee, v. Mark A. HERMAN, Appellant.

No. 1 CA-CR 70.

Court of Appeals of Arizona.

May 16, 1966.

Darrell F. Smith, Atty. Gen., by Gary K. Nelson, Asst. Atty. Gen., for appellee. Vernon B. Croaff, Public Defender, by Grant Laney, Deputy Public Defender, for appellant.

CAMERON Judge.

This is an appeal from a jury verdict and judgment of guilt to the crime of second degree burglary. Defendant was sentenced to serve a term of not less than three nor more than five years in the Arizona State Prison, and prosecuted this appeal in propria persona. The Public Defender of Maricopa County was appointed to represent the defendant on appeal.

We are called upon to determine whether or not the court properly ruled in submitting to the jury the question of voluntariness of statements made by the defendant to two police officers, and also the effect of the interrogation of the defendant by two police officers at the time defendant was represented by counsel.

The facts as are necessary for a determination of this matter on appeal are as follows: The defendant was arrested on 19 November, 1964, for the instant crime and was questioned on that day by the two police officers. His attorney was present on the same day (19 November, 1964) in the Justice Court when bond and the date of the preliminary examination were set by the Justice Court. He remained in custody in lieu of posting bond. On or about 22 November, 1964, the defendant was tried on another criminal charge which resulted in a deadlocked jury. A new trial was pending in that matter. On 24 November, 1964, the defendant was taken from the County Jail to the Police Detective Bureau wherein he was again interrogated, and then made certain statements and admissions concerning the burglary in the instant case. The defendant was 18 years of age at the time.

As a result of this conversation with defendant, the police officers together with the defendant went to defendant's house and picked up certain items that had been taken in the burglary. There is controversy between the two officers and the defendant as to what was said, what inducements were made, if any, and whether or not the defendant has been informed of his rights prior to the interrogation. It is the testimony of one police officer that the defendant asked to talk with the two city police officers and waived his right to counsel.

At the end of the examination outside of the presence of the jury, the defendant moved that the two witnesses not be permitted to testify as to the conversation they had with the defendant in the Detective Bureau. The court replied:

'The Court: Well, it seems to me the matter that has been raised, Mr. _ _ has been a question of fact. The officers have unequivocally said 'no', the defendant has said 'yes', I am going to leave it to the jury to decide. I don't think I should, there being these differences, the statements by the witness, so the witness will be allowed to testify concerning this. Do you intend to call just one or both?

'Mr. Mignella: Well, Your Honor, will the record show that the Judge, Your Honor, has decided this was voluntarily made?

'The Court: Insofar as I am concerned, it is voluntary enough to go to the jury on the question of voluntariness, yes.'

The brief of the appellee, filed by the Attorney General, in regard to the hearing held outside the jury to determine the voluntariness of appellant's statements admits that 'the court below did not deem it his duty to resolve the fact question on voluntariness prior to allowing the statement to be introduced to the jury.' Our Supreme Court has indicated the procedure to be followed in Arizona:

'The trial judge's statement that it was for the jury to determine the question of voluntariness of a statement or confession, does not correctly state the law as enunciated in Jackson. We hold, in accord with Jackson, that in Arizona when a question is raised as to voluntariness of a statement constituting either admissions against interest, exculpatory or otherwise, or a confession, it must be resolved by the judge outside the presence of the jury. If he determines it was involuntary, it will not be admitted. If he determines it was voluntary, it may be admitted. Evidence tending to contradict the voluntary nature of the statement or confession may be admitted, and the jury may, as under the Massachusetts rule, then in effect disagree with the judge, and reject the confession.' State v. Owen, 96 Ariz. 274, 276, 277, 394 P.2d 206, 208 (1964).

The law is well settled that before a confession or admission against interest, exculpatory or otherwise, may be considered by the jury in a criminal cause, the trial court must affirmatively find the statement was voluntarily made before the matter may be admitted for further consideration by the jury. State v. Cobb, 2 Ariz.App. 71, 406 P.2d 421 (1965), State v. Tannahill, 1 Ariz.App. 281, 402 P.2d 29 (1965), Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1744, 12 L.Ed.2d 908, 1 A.L.R.3d 1205 (1964).

We will next consider the question of the statements made by the defendant to the police officers during a period of time when the defendant was represented by counsel. The Reporter's Transcript makes it clear that the officers knew defendant was represented by an attorney. On cross-examination of Officer Seattle before the jury, the following transpired:

'Question: Well, you knew he had a lawyer. You knew you were going to try and get admissions out of him. Why didn't you send for his lawyer?

'Answer: He was advised he had a right to an attorney.

'Question: What?

'Answer: He was advised he had a right to consult his attorney. He did not wish to consult his attorney.

'Question: He was eighteen years old at that time, wasn't he?

'Answer: Yes, sir.'

And the testimony of the other officer (Chapman) before the court:

'Question: How come you to take him over there?

'Answer: Well, we were continuing our investigation.

'Question: Well, you went and got him didn't you?

'Answer: Yes, sir.

'Question: And you told him you wanted to ask him some more questions, right?

'Answer: Yes, sir.

'Question: So you just took him with you?

'Answer: Yes, sir.

'Question: Now, you knew that he had a lawyer, didn't you?

'Answer: Yes, sir.'

'Question: I say, nobody ever, neither you nor Seattle, ever contacted me and advised me to come over, that you were going to interrogate the boy further?

'Answer: No, sir.'

Concerning the admissibility of statements obtained by the officers from the defendant outside the presence of defendant's attorney during a time when the defendant was represented by counsel, it should be remembered that in the instant case, we are not concerned with the waiver by the defendant of the right to obtain the assistance of counsel, but with waiver of the assistance and advice of counsel who was at the time representing the defendant.

In 90 A.L.R.2d 732, there is a discussion of cases relating to admissibility of statements and confessions as affected by the absence of counsel. A number of New York cases are cited concerning statements made after indictment wherein the New York courts have ruled the statements inadmissible if made in the absence of counsel. In a concurring opinion, Fuld, Justice, stated what appears to be the rule in New York:

'The defendant had a right to the effective aid and assistance of the attorney who represented him. The fact that his attorney surrendered him for such arraignment in court could not possibly be regarded as a consent or invitation to secret interrogation by police or prosecutor or a waiver of fundamental rights. It matters not, therefore, that the defendant did not object to being questioned or...