State v. Hunt
| Decision Date | 24 October 1968 |
| Docket Number | No. 2,CA-CR,2 |
| Citation | 447 P.2d 896,8 Ariz.App. 514 |
| Parties | The STATE of Arizona, Appellee and Cross-Appellant, v. Maurice E. HUNT, Appellant and Cross-Appellee. 113. |
| Court | Arizona Court of Appeals |
Gary K. Nelson, Atty. Gen., Carl Waag, Asst. Atty. Gen., Phoenix, for appellee and cross-appellant.
Mesch, Marquez & Rothschild, by Alfred C. Marquez, Tucson, for appellant and cross-appellee.
This appeal deals with problems arising out of the second trial of Maurice E. Hunt and Ernestine W. Hunt, husband and wife, who were tried to a jury on one count of aggravated assault and battery and one count of contributing to the delinquency and dependency of their five-year-old daughter, Tina Hunt. The acts were allegedly committed on or about November 9, 1963, and prior thereto.
An appeal was taken from the first trial, culminating in this court's decision, State v. Hunt, 2 Ariz.App. 6, 406 P.2d 208 (1965), reversing the convictions. On the second trial, Ernestine W. Hunt was found guilty of both counts. Maurice E. Hunt, hereafter called defendant, was acquitted of aggravated assault and battery but found guilty of contributing to the delinquency and dependency of a minor. He appeals from that conviction. The facts are substantially as set forth in our former opinion and we will not repeat them, except insofar as necessary to the proper dealing with questions presented on this appeal.
The defendant contends that use at trial of a conversation which he had with an investigating officer, Ben Bernal, when Bernal first arrived at the Hunt residence, was in violation of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), since Hunt had not been apprised of his constitutional rights prior to the conversation. If the proceedings had passed from the 'investigatory' stage to the 'accusatory' stage, prior to conversation, the defendant must have been effectively warned of his constitutional rights. In Miranda, the court 'explained' the Escobedo rule in connection with 'custodial interrogation.' The court held that statements obtained in 'custodial interrogation' could not later be used in a criminal trial, unless the 'procedural safeguards' had been met. The court explained:
'By custodial interrogation, we mean questioning initiated by law enforcement officers After a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.' (Emphasis added)
Our Supreme Court has held that the 'Miranda' rule may be violated by interrogation in one's own home. State v. Anderson, 102 Ariz. 295, 428 P.2d 672 (1967). There, the defendant had shot her husband in their home and then asked someone else to call the police. Our Supreme Court said:
The questions before us therefore become: (1) Was Dr. Hunt 'free to leave?' (2) Was he the 'obvious suspect in an apparent' crime? We believe the facts compel an affirmative answer to (1) and a negative answer to (2). First, Detective Bernal testified that his reason for going to the Hunt residence was 'to ascertain the circumstances' of a little girl in a furnace room with her hands tied. Unlike a shooting death, a prima facie crime is not established as the court assumed in the Anderson case. Indeed, the Hunts were not arrested until about a month after the events in question. Also, there is no reason to believe that the defendant would have been restrained, as the court assumed Mrs. Anderson would have been, had he desired to leave. The fact is that he did leave the room and return two or three times during the questioning and, as stated, was not arrested until a month later. We conclude that the facts before us do not bring this case within the holdings of Anderson, Miranda or Escobedo. As we said in State v. Tellez, 6 Ariz.App. 251, 256, 431 P.2d 691, 696 (1967):
* * *'
See also State v. Noriega, 6 Ariz.App. 428, 433 P.2d 281 (1967) where we held that the exclusionary rule of Miranda does not apply where the defendant was asked questions in a relaxed situation in his own home with his family present.
Miss Hengsteler, the maid who discovered defendant's daughter's condition, testified concerning the nature of injuries which Tina had on November 9, 1963, compared to her condition on November 2, 1963. This testimony revealed that Tina had other injuries on November 2. Defendant contends that this evidence was prejudicial as to the assault and battery, charged to have been committed on November 9, because it constituted prior bad acts with which he was not charged.
Though this testimony may have been prejudicial to the defendant it was, nevertheless, relevant. The defendant was charged with (1) assault and battery, committed on November 9, 1963, and (2) contributing to the dependency or delinquency of Tina 'on or about the 9th day of November, 1963, And at various times prior thereto.' (Emphasis added) Since the contributing to dependency or delinquency charge covers a period of time, the State was entitled to put on evidence of other acts which tended to establish that he had contributed to the dependency or delinquency of Tina.
We believe that if there was any prejudice in this regard that it was to the State rather than the defendant. The trial court was placed in a dilemma because evidence on Count 2 was often apparently prejudicial on Count 1. The trial court resolved the problem in favor of the defendant and consistently sustained objections to other testimony of Tina's injuries which had occurred prior to November 9. The defendant therefore cannot complain.
In the course of the State's examination of Dr. Pullen, concerning Tina's injuries, the prosecutor asked:
'Q Do you have an opinion whether this would be excess and unreasonable for disciplinary purposes?
Q Do you have an opinion as to whether this child should be returned to the home or not in this condition?
Q Well, do you have an opinion whether this is an unfit home?'
Objections to these questions were sustained before any answers could be given. The first and the third questions are improper, being ultimate questions for the jury, and did not call upon the witness' expertise. Since the questions remained unanswered, we agree with the trial court that there was no reason to grant a mistrial.
The defendant also complains of questions asked of him on cross-examination. The questions pertained to his treatment of Tina during the week prior to November 2, 1963. This evidence went to the second count, as we have previously noted, and properly should have been admitted.
A more serious problem is posed by a question asked on examination of Mrs. Davison, a juvenile probation officer. The prosecutor asked, 'What is Tina Hunt's status at the present time, who are her parents?' The prosecutor had been warned by the court against eliciting such testimony because it was irrelevant and highly prejudicial, since it tended to show that another court had already determined that the Hunt home was unfit.
The prosecutor defended his action on the ground that it was his belief that the fact that Mrs. Foote was serving as the foster mother of Tina was already a fact in evidence. The record reveals that he was correct in this belief, though apparently counsel for the defendant and the trial court disagreed with him. The following dialogue between the prosecutor and Dr. Thompson took place prior to the testimony of Mrs. Foote:
'Q And she comes to you, or is brought to you when she needs to see a doctor?
A Correct.
Q When her foster mother feels she needs to see a doctor, is that correct?
A Yes.
Q You know Her foster mother, Mrs. Foote?
A Yes.' (Emphasis added)
Had the jury been informed that the Hunts had been judicially deprived of custody of Tina, perhaps a new trial should have been granted. However, there is no showing that the reference to Tina's 'foster mother' indicated more than that the Hunts had been Temporarily deprived of her custody. See A.R.S. § 8--225, Custody of Child Pending Hearing. See also, A.R.S. § 8--510. The jury was already apprised of that fact when Bernal testified that he 'took Tina into custody.'
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