State v. Hunter

• Decision Date: 02 November 1967
• Docket Number: No. 8991--PR,8991--PR
• Citation: 102 Ariz. 472,433 P.2d 22
• Parties: STATE of Arizona, Appellee, v. Edgar HUNTER, Appellant.
• Court: Arizona Supreme Court

Page 22

433 P.2d 22

102 Ariz. 472

STATE of Arizona, Appellee, v. Edgar HUNTER, Appellant.

No. 8991--PR.

Supreme Court of Arizona, In Banc.

Nov. 2, 1967.

Darrell F. Smith, Atty. Gen., J. Stephen Simon, Sp. Asst. Atty. Gen., for appellee.

Barry Allen Reiss, Phoenix, for appellant.

McFARLAND, Vice Chief Justice:

The petitioner-defendant, Edgar Hunter, was charged with burglary of an undesignated degree, and was tried and found guilty of the crime of burglary of the first degree in violation of A.R.S. § 13--302. The defendant was sentenced by the Superior Court, Maricopa County, to serve a term from two to four years in the Arizona State Prison. From the verdict and judgment of conviction he appealed to the Arizona Court of Appeals, Division One, which affirmed the Superior Court's judgment of conviction and sentence as reported in State v. Hunter, 5 Ariz.App. 112, 423 P.2d 727. We granted defendant's petition for review pursuant to A.R.S. § 12--120.24.

The evidence showed that certain articles were removed from a construction-site trailer in Phoenix, Arizona sometime between the hour of 5:30 P.M. on May 27 and 6:30 A.M. on May 28, 1965. The defendant personally sold some of the articles which had been removed and participated in the sale of others. The defendant first stated to the police that two men had left the items in question with him four or five days before the sales. Defendant then changed that former version by stating that the men had left the goods with him on the night of May 27th instead of four or five days earlier. Thereafter in a still different account of the manner in which he came into possession of the goods, defendant stated to the police that on the evening of the 27th of May he first removed the items from a parked car and sold them on the following day. At the trial he testified that he had gone over to a friend's home after work on the 28th of May where he obtained the goods and that he thereafter assisted in the sales. He also testified in regard to an alibi which was supported by the testimony of his sister and a friend. The defendant first raises the question of the voluntariness of his various statements which were made to the police officer, George M. Loy, on June 18 and June 22 in 1965. The Court of Appeals held that the trial court had not made an affirmative finding as to the voluntariness of the statements at the conclusion of the original hearing held out of the presence of the jury and referred the case back to the trial court for this limited purpose. On remand the trial court made a definite determination that the defendant's statements were voluntarily made.

The defendant makes no objection to the procedure used as provided for in the Court of Appeals' order or by the trial court in making its determination, but urges:

(1) that the statements were not voluntary in that defendant was not properly advised that if he could not afford to retain counsel of his own choosing the court would appoint a lawyer to represent him; and

(2) that the evidence as to voluntariness was introduced by means of leading questions propounded by the prosecution which called for improper conclusions of the witness, Police Officer Loy, and that the trial court's admission of answers to these questions constituted an abuse of discretion amounting to prejudicial error.

These same objections were made in his opening brief and in his objections to the findings of the trial court on remand, and are also set forth in his motion for rehearing. The defendant's contention that he was not properly advised of his rights is without merit. In our opinion the evidence sustains the trial court's determination that defendant's statements were voluntarily made. The defendant was neither threatened nor coerced in any way. No promises nor inducements of any kind were made to defendant. He was advised that he had a right to remain silent, that anything he said could be used against him in court and that he was entitled to counsel. The defendant did not at any time request counsel, nor was he refused counsel. The evidence discloses that the statements were voluntary and properly admitted. The controlling law in this case on appeal is to be derived from Escobedo v. State of Illinois, 378 U.S. 478, 479, 84 S.Ct. 1758, 12 L.Ed.2d 977. The case of Miranda v. State of Arizona, 384 U.S 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, is not applicable to the instant case in view of the United States Supreme Court's decision of Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, which held that the Miranda decision was not to be applied retroactively to trials begun before the Miranda decision. The questions in regard to rights to counsel must be determined under Escobedo and other prior decisions. State v. Stelzriede, 101 Ariz. 385, 420 P.2d 170, and State v. Intogna, 101 Ariz. 275, 419 P.2d 59.

The defendant also asserts that prejudicial error occurred when the court allowed the alleged leading questions to be asked of the police officer during direct examination. Some of the typical questions to which defendant objected are:

'Q. Did you promise him anything if he would talk to you?'

'Q. During the time you were talking to him did you or anyone else in your presence threaten him in any manner?'

Most of these questions were foundational in nature and did not suggest any particular answer. Not all questions which can be answered with a simple 'yes' or 'no' can be validly objected to as leading. State v. Simoneau, 98 Ariz. 2, 401 P.2d 404; Section 44 Udall's Arizona Law of Evidence. We find the trial court did not abuse its discretion in permitting the questions and answers. State v. Pierce, 59 Ariz. 411, 129 P.2d 916; State v. King, 66 Ariz. 42, 182 P.2d 915.

The defendant also contends that the trial court erred in refusing his requested instruction which was similar to that given in cases where an accomplice's testimony is introduced and the jury is instructed as to the degree of corroborating circumstances required to sustain a verdict of guilty. There was clearly no accomplice's testimony introduced, and the trial court did not err in refusing defendant's requested instruction.

The next question is whether the evidence supports the verdict. In State v. Jackson, 101 Ariz. 399, 420 P.2d 270, we said:

'It is also almost universally recognized that proof of possession by an accused, of recently stolen property, warrants an inference that he was the taker. * * *'

Possession of recently stolen property standing alone is not sufficient to support a verdict of burglary. State v. Pederson, 102 Ariz. 60, 424 P.2d 810. However, a defendant's possession of stolen property shortly after a burglary, coupled with contradictory and unsatisfactory explanations which the jury under the evidence could find to be false, is sufficient to support a verdict of burglary. State v. Pederson, supra; Murphy v. State, 50 Ariz. 481, 73 P.2d 110; Porris and Sanchez v. State, 30 Ariz. 442, 247 P. 1101; Taylor v. Territory, 7 Ariz. 234, 64 P. 423; People v. Blackburn, 65 Cal.App.2d 538, 151 P.2d 24; Ballard v. State, 68 Okl.Cr. 39, 95 P.2d 239; Patton v. State, 54 Okl.Cr. 393, 22 P.2d 116; People v. Bucnis, 405 Ill. 568, 92 N.E.2d 158; People v. Norris, 362 Ill. 492, 200 N.E. 330. The facts in the instant case fall in this category.

Since the evidence is sufficient to support the verdict and judgment that defendant is guilty of the crime of burglary, the only remaining question is the sufficiency of the evidence to support the verdict and judgment of first-degree burglary. Upon reviewing the sufficiency of the evidence to sustain a conviction, this court will view the evidence in the light most favorable to the state, and will resolve all reasonable inferences unfavorably to defendant. State v. George, 95 Ariz. 366, 368, 390 P.2d 899. There must be sufficient evidence to support substantially the verdict. State v. Bearden, 99 Ariz. 1, 405 P.2d 885.

At the time of the commission of the alleged offense, burglary was defined in Arizona Revised Statutes as follows:

' § 13--302 * * *

'A. A person entering a building, * * * trailer or semitrailer, with intent to commit grand or petty theft, or any felony, and a person entering an outhouse or other building not enumerated in this section with intent to commit a felony, is guilty of gurglary.

'B. Burglary committed in the nighttime is burglary of the first degree, punishable by imprisonment in the state prison for not less than one nor more than fifteen years. Burglary committed in the daytime is burglary of the second degree, punishable by imprisonment in the state prison for not to exceed five years.

' § 13--301 * * *

'In this article, unless the context otherwise requires:

'2. 'Nighttime' means the period between sunset and sunrise.'

Defendant was informed against for burglary of an undesignated degree under 17 A.R.S. Rules of Criminal Procedure, Rule 142. The jury was instructed as to both degrees of burglary, and defendant received a verdict of guilty of first degree burglary which is burglary committed in the 'nighttime.' We are concerned only with the evidence relating to the time the burglary occurred with respect to 'nighttime' and 'daytime.'

Defendant requests that we take judicial notice of the time of sunset and sunrise in making the determination as to whether the burglary was committed in the daytime or nighttime. In view of the request of defendant, and under the facts and circumstances of this case, we hold it is proper for this court to take such judicial notice. We therefore take judicial notice that in Phoenix on May 27, 1965, sunset occurred at 7:29 P.M., and that sunrise on May 28, 1965, occurred at 5:21 A.M. Southwestern Freight Lines, Ltd., v. Floyd, 58 Ariz. 249, 119 P.2d 120; Porris v. State, supra; Taylor v. Territory, supra.

The evidence discloses that a construction site trailer in Phoenix had been burglarized some time between the hour of...