State v. Hunt
| Citation | 2 Ariz.App. 6,406 P.2d 208 |
| Decision Date | 05 October 1965 |
| Docket Number | No. 2,CA-CR,2 |
| Parties | The STATE of Arizona, Appellee, v. Maurice E. HUNT and Ernestine W. Hunt, Appellants. * 5. |
| Court | Court of Appeals of Arizona |
Darrell F. Smith, Atty. Gen., Robert W. Pickrell, former Atty. Gen., Phoenix, Norman E. Green, County Atty., Pima County, Jack Redhair, Deputy County Atty., Pima County, Tucson, for appellee.
Lesher, Scruggs, Rucker, Kimble & Lindamood, by Edward W. Scruggs and D. Thompson Slutes, Tucson, for appellants.
**
The defendants appeal from judgments of conviction entered in the Superior Court of Pima County, and from the order denying their motion for a new trial. Defendant Ernestine W. Hunt of Tucson, Arizona, was charged with one count of aggravated assault and battery upon the person of her five year old daughter, Ernestine (Tina) Hunt, and three misdemeanor counts involving abuse of said child, as follows: Contributory Delinquency and Dependency (A.R.S. §§ 13-821 and 13-822); Permitting the Life and Health of a Child to be Impaired by Neglect and Abuse (A.R.S. § 13-842); and Failure to Provide for Child (A.R.S. § 13-801), all allegedly having occurred on or about November 9, 1963.
Mrs. Hunt's husband, Dr. Maurice E. Hunt, was charged jointly in the same information with having committed the same four offenses. He was also charged in two additional counts with having been an accessory to two other felonious aggravated assaults and batteries in violation of A.R.S. §§ 13-141 and 13-143, one allegedly having occurred on or about October and November, 1961, and the second on or about April 10, 1962.
After several pretrial motions were denied, the defendants were tried jointly before a jury, and after six days of trial, the jury returned guilty verdicts against both defendants for the aggravated assault and battery count and all three child neglect counts. 1 Both defendants were adjudged guilty by the court on the aggravated assault and battery charge and all three of the child neglect charges, although sentence was imposed on only one of the neglect charges, to wit, contributory delinquency and dependency (Count IV of the information) and the aggravated assault and battery charge.
Prior to trial, there was a great deal of newspaper and television publicity given to the defendants' arrest, preliminary hearing, juvenile proceedings involving the child, investigations made by the County Attorney's office of the death of another of the Hunts' children, Ernest, and to other aspects of the case.
This appeal involves several major issues, as set forth in sixteen assignments of error. A summary of the evidence adduced at the trial is necessary for a proper understanding of the issues.
On November 9, 1963, Christina Hengsteler, an 18 year old University of Arizona co-ed, was doing housework for the defendants at their home. She had worked there on the three preceding Saturdays and was familiar with all five Hunt children, Tina, Stanley, Winston, Edith and Dwight. Miss Hengsteler came to work on November 9 at about 9 a. m. and started cleaning at one end of the house and worked toward the other end. She testified that she had not seen Tina all day. At about 4 p. m., while working in the vicinity of the furnace room, Miss Hengsteler heard a noise coming from behind the closed door of the furnace room. Thereupon she opened the door and observed Tina dressed in pajamas, lying on her stomach in the unlighted, dark furnace room, her head underneath the hot water heater, her hands tied behind her back with what later was described as a hair ribbon, her face bloody, and what appeared to be strap marks on her face. According to Miss Hengsteler, the child was whimpering, whereupon she picked her up and talked with her. Over objection, Miss Hengsteler testified that after she had asked Tina what had happened, Tina told her that her mother had hit her with a belt. Miss Hengsteler gave Tina a drink of water, told her to stay where she was, and giving the excuse of not feeling well to Mrs. Hunt, who was in the guest house cleaning, she left work, went home and talked with her mother who called the Sheriff's office. In response to the call, Ben Bernal, a deputy sheriff of Pima County assigned to juvenile work, went to Miss Hengsteler's house. She reported to him that she had found Tina in the furance room with her hands tied behind her back; that she was bleeding and had blood on her face; that her nose was flattened like somebody hit her across the nose; that she was crying or whimpering; that when she found her, Tina's head was partially under the hot water heater; and that she was very much concerned for Tina's welfare.
Upon receipt of this information, detective Bernal, accompanied by Miss Hengsteler, drove to the Hunt residence. It is undisputed that he had neither a warrant for anyone's arrest nor a warrant to search any premises at this time.
After the arrived at the Hunt residence and parked his car, he noticed some people near a corral close to the residence. When he determined that they were Dr. and Mrs. Hunt, he approached them. Bernal testified that he identified himself to Dr. Hunt and stated that he would like to talk with him. Dr. Hunt refused, saying he was too busy, was leaving and couldn't speak with him.
Bernal said he then spoke to Mrs. Hunt, who was standing beside Dr. Hunt, and Dr. Hunt stepped aside. (It is not clear whether Dr. Hunt left the presence of the officer at this time.) In answer to his questions, Mrs. Hunt advised him that she had a daughter named Tina who was in the house and admitted that she was in the furnace room.
On officer Bernal's request to see Tina, Mrs. Hunt consented, and directed him to follow her into the house. When they reached the living room, Mrs. Hunt told Bernal to wait there and she would get Tina. Officer Bernal declined to wait and said that he would follow Mrs. Hunt, which he did.
When Mrs. Hunt opened the furnace room door in his presence, he observed that the room was small and dark. Mrs. Hunt turned on a light in the room, and Bernal saw Tina sitting on a suitcase with her hands tied behind her back with a red plaid ribbon. He testified that he noticed that she had bruises on her face and her nose was flattened. (Subsequent testimony for the defense was to the effect that Tina's nose always had a flattened appearance.)
Detective Bernal took Tina into the living room where he had a conversation with her in the presence of Mrs. Hunt. (Dr. Hunt came into the room later.) Bernal stated Tina 'was very emotional' at this time. He asked her how she got all the bruises around her face and Tina stated that her mother had 'beat her with a hose.' This answer, according to Bernal, was modified by Tina when her mother asked her whether, in fact, the bruises hadn't happened in her play with her brother when he threw a rope around her and pulled up, playing as though she were a cow. To the mother's question, 'Isn't that the way it was, Honey?' Tina answered, 'Yes, Mommy.'
Then Bernal, looking under Tina's pajama top, saw several diagonal, black and blue marks about an inch long across her back. In response to his inquiry as to how Tina had been beaten so badly, Bernal testified Mrs. Hunt said she had 'taken a belt to Tina' because she wouldn't mind.
On further examination of Tina, Bernal noticed her left arm was bruised and black and was swollen to about twice the size of her other arm.
At some time during Bernal's conversation with Mrs. Hunt, Dr. Hunt came into the room and Bernal questioned both parents about Tina. After using the Hunts' telephone, he advised them that he was taking Tina into his custody, which he did. The Hunts gave Bernal some of Tina's clothing and a bottle of medicine which Dr. Hunt advised Bernal was for Tina 'since she had been having epileptic seizures, convulsions.'
Tina was thereupon taken to the sheriff's office where photographs were taken, showing bruises and other discolorations on her face, back and arms. Later, Tina was given medical attention at a hospital.
It is to be noted that it was approximately thirty days later that the Hunts were arrested for aggravated assault, and Dr. Hunt was charged with being an accessory. The three counts of child neglect were added after the preliminary hearing.
Defendants assign as error the trial court's denial of their pretrial motion to suppress the evidence compiled by detective Bernal during his visit to the Hunts' home November 9, 1963, including his observations regarding Tina's person and condition, Tina's statements to him as to how her bruises occurred, the statements made by Dr. and Mrs. Hunt, and the pictures taken of Tina later that day. The grounds set forth in the motion were that since detective Bernal did not have a search warrant or defendants' consent to the search, his search was unlawful and violated defendants' rights under the Fourth Amendment of the United States Constitution, prohibiting unreasonable searches and seizures in persons' homes.
Defendants also assign as error the lower court's overruling their objection to the admission of this evidence at the trial. It is claimed that all the evidence Bernal compiled as a result of his visit to the Hunts' home should have been excluded as the fruits of an illegal search and seizure.
The State argues that the evidence acquired does not fall within the confines of the protection of the Fourth Amendment and we agree.
The Fourth Amendment to the United States Constitution reads as follows:
'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'
A.R.S. § 13-1441 defines a search warrant as:
'* * * an order in...
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State v. Thorpe, 79-361-C
...with a malicious desire to inflict pain, rather than make a genuine effort to correct the child by proper means. State v. Hunt, 2 Ariz.App. 6, 20, 406 P.2d 208, 222 (1965). There is no inflexible rule that defines what, under all circumstances, is unreasonable or excessive force. The accept......
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...and Officer Stewart's testimony regarding its discovery should not have been permitted at the hearing. See State v. Hunt, 2 Ariz.App. 6, 12, 406 P.2d 208, 214 (1965) (holding that the exclusionary rule "applies to oral evidence adduced from an officer's testimony as to what he saw or found ......
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In re Hunt
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