State v. Hudgens

• Decision Date: 26 January 1967
• Docket Number: No. 1386,1386
• Citation: 102 Ariz. 1,423 P.2d 90
• Parties: STATE of Arizona, Appellee, v. Raymond Idus HUDGENS, Appellant.
• Court: Arizona Supreme Court

Page 90

423 P.2d 90

102 Ariz. 1

STATE of Arizona, Appellee, v. Raymond Idus HUDGENS, Appellant.

No. 1386.

Supreme Court of Arizona, In Banc.

Jan. 26, 1967.

Rehearing Denied Feb. 21, 1967.

Darrell F. Smith, Atty. Gen., Robert W. Pickrell, former Atty. Gen., Philip W. Marquardt, Asst. Atty. Gen., Dan Schimmelpfenning, Mohave County Atty., Kingman, William C. Kennedy, former Mohave County Atty., Kingman, for appellee.

Eino M. Jacobson, Prescott, Sol L. Hamburger, Phoenix, for appellant.

STRUCKMEYER, Justice.

Appellant, Raymond Idus Hudgens, was charged with the first degree murder of his wife Grace and her parents, Isaac and Mary Young. He entered pleas of not guilty and not guilty by reason of insanity. From the judgments of conviction and sentence of death, he appeals.

The prosecution established these facts upon which the jury returned a verdict of guilty. On December 11, 1962, appellant went to the home of his wife's parents near Kingman, Arizona. His stated purpose was to persuade his estranged wife to accompany him to Florida. When she refused, appellant became enraged and he shot her and the Youngs, using a .22 caliber and a .32 caliber pistol. After the shooting, he ransacked the house to give the appearance that a robbery ahd taken place and disposed of the .22 caliber pistol by throwing it into the Calorado River at the Topock Bridge near Needles, California.

The next day at Van Nuys, California, he called the police department and, without giving his name, told them of the homicides and that a year and one-half old baby (his) in Kingman had not been cared for in over twenty-four hours. Appellant became a suspect and a warrant for his arrest was issued. Thereafter, in attempting to locate Hudgens, the California police went to the home of his sister and, in a search of her home, discovered a note written by the appellant to his sister in which he admitted the shootings. After he was arrested, he was taken to the city hall in Van Nuys where a written statement was made in which he admitted the homicides and described, in detail, how the acts were committed. As he was returned to Arizona, he voluntered information which enabled the police officers to locate the .22 caliber pistol which he had thrown over the bridge at Topock.

After perfecting this appeal and filing the opening brief, appellant's counsel, Eino M. Jacobson, withdrew as counsel based upon a possible conflict of interest by reason of his election to the office of County Attorney of Yavapai County and Sol L. Hamburger was substituted as appellant's attorney. Three additional briefs were filed by him.

Former counsel strenuously argues that the prosecuting attorney, in presenting his summation, committed error in that he stated to the jury that a parole board was human and fallible, and if it imposed a sentence of life imprisonment defendant could be released prior to the time he could reasonably be expected to be safely returned to society and, therefore, he would be in a position to murder again. Appellant points to twenty-one jurisdictions in this country which have decided that arguments dealing with the possibility of parole are grounds for reversal. E.g., People v. Morse, 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33.

We have, on the contrary, repeatedly stated that such or similar arguments were proper. State v. Coey, 82 Ariz. 133, 309 P.2d 260; State v. Jordan, 80 Ariz. 193, 294 P.2d 677; State v. Macias, 60 Ariz. 93, 131 P.2d 810; Sullivan v. State, 47 Ariz. 224, 55 P.2d 312. See also State v. Randolph, 99 Ariz. 253, 408 P.2d 397; State v. Robison, 99 Ariz. 241, 408 P.2d 29. While we might be disposed to re-examine this question in the light of the recent decisions cited, we would not reverse the conviction for this reason alone; and since we do not find other grounds for reversing the judgment, it is unnecessary to further consider the question raised.

As stated, the California police, while searching for appellant, went to the home of his sister and there discovered a note appellant left for her in which he confessed to the crimes. Appellant urges as error that this note was improperly admitted into evidence because it was the product of an illegal search and seizure. We express doubt that it was the product of an unlawful search or that the property of a third person obtained through an illegal search and seizure is inadmissible against an accused. See Kelley v. United States, 8 Cir., 61 F.2d 843, 86 A.L.R. 338. Irrespective, at no time during the course of the trial did the appellant make an objection that there was an unlawful search and seizure under the Fourth and Fourteenth Amendments to the Constitution of the United States. Claimed error which is not supported by a proper objection will not be considered on appeal. State v. Graham, 97 Ariz. 408, 401 P.2d 141; State v. Hernandez, 96 Ariz. 28, 391 P.2d 586; State v. Cumbo, 96 Ariz. 385, 696 P.2d 11; State v. Favors, 92 Ariz. 147, 375 P.2d 260; State v. Hunt, 91 Ariz. 145, 370 P.2d 640; State v. Hudson, 87 Ariz. 162, 348 P.2d 928; State v. Lubetkin, 78 Ariz. 91, 276 P.2d 520.

In Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408, the United States Supreme Court said:

'* * * a litigant's procedural defaults in state proceedings do not prevent vindication of his federal rights unless the State's insistence on compliance with its procedural rule serves a legitimate state interest.' 379 U.S. at p. 447, 85 S.Ct. at p. 567.

In State v. Graham, supra, we said the defense has the 'duty of serving the 'legitimate state interest' (by) giving 'the Court the opportunity to conduct the trial without using the tainted evidence.' * * * Judges are neither omniscient nor all-knowing at all times for all purposes. It is the duty of the defense to aid the County by raising important state and federal claims.' 97 Ariz. at 416, 401 P.2d at 147.

Trial counsel stipulated to the admission of the note into evidence. It contains some matters which might have been considered by a jury as mitigating the gravity of the offense. From this and the entire record it is apparent that the defense of this case was predicated on the theory of insanity arising out of emotional instability. Present counsel so concedes. The tactical decision to place the note before the jury constitutes a binding waiver of the Fourth and Fourteenth Amendments to the Constitution of the United States. State v. Graham, supra.

The next question presented is whether appellant's confession should have been excluded from evidence on the grounds that it was involuntary. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, determined that Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (June 22, 1964), and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (June 13, 1966), were not to be applied retroactively. The case at bar was tried and decided prior to both Escobedo and Miranda. The principles announced in those cases setting forth the standards as to the admissibility of confessions are inapplicable here.

An accused is deprived of due process of law if his conviction is founded in whole or in part upon an involuntary confession without regard to the truth or falsity of the confession, Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760, even when there is ample evidence aside from the confession to support the conviction. Payne v. State of Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975; Stroble v. State of California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872; Malinski v. People of State of New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029. However, 'the very integrity of the fact finding process' and 'the clear danger of convicting the innocent' justified retroactive application of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205 (1964). Jackson provides that courts must concern themselves with the totality of the circumstances surrounding a confession to determine its voluntariness.

If the trial judge determines a confession is voluntary it may be admitted for the consideration of the jury. State v. Owen, 96 Ariz. 274, 394 P.2d 206. Here the trial judge first heard the evidence regarding the confession outside the presence of the jury. He then made a determination that the confession was voluntary and admitted it for consideration by the jury. In support of the trial court's finding is this testimony:

Examination of Detective Sergeant Guy R. Mowlder of the Los Angeles Police Department:

'Q When you first saw Mr. Hudgens, at about what time was that?

'A Approximately 12:30 P.M., on the 12th of December.

'Q Did he admit the killing was done by him within the next ten or fifteen minutes?

'A Yes. He did.

'Q Did he volunteer to tell you where the gun was?

'A Yes. He did.

'Q You then went to the Police Station?

'A After we went to look for the gun.

'Q Was his attitude cooperative?

'A After the first two or three minutes.

'Q After that, it was completely cooperative?

'A Yes.

'Q Now, during all this time, was he absent from your presence?

'A Never was absent from my presence. I was with him all the time.

'Q Did anybody offer him anything for his testimony?

'A No, sir.

'Q Was he threatened?

'A No, sir.

'Q Any promises made to him?

'A No, sir.

'Q At the time it was reduced to writing, or any time since the arrest until the time he started to write this, were any promises made to him, or was he asked if he wanted to get something off his mind, or any statements made to him to that effect?

'A The only statement to that effect was when we first got in the car, and I said, 'Don't you want to tell me, Ray, what happened?'

'And he said, 'Yes. I want to get it off my mind,' or words to that effect.

'Q And did he tell you that he requested counsel at any time?

'A No. He did not. I asked him if he wanted counsel, and he said, 'No. I can't afford it.'

'Q Was this after it was reduced to...