State v. James, 5744

• Decision Date: 05 June 1984
• Docket Number: No. 5744,5744
• Citation: 685 P.2d 1293,141 Ariz. 141
• Parties: STATE of Arizona, Appellee, v. Steven Craig JAMES, Appellant.
• Court: Arizona Supreme Court

Page 1293

685 P.2d 1293

141 Ariz. 141

STATE of Arizona, Appellee, v. Steven Craig JAMES, Appellant.

No. 5744.

Supreme Court of Arizona, In Banc.

June 5, 1984.

Certiorari Denied Oct. 1, 1984.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III, and Jack Roberts, Asst. Attys. Gen., Phoenix, for appellee

Paul F. Lazarus, Phoenix, for appellant.

HAYS, Justice

Appellant, Steven Craig James, was tried by jury and convicted of first degree murder, A.R.S. § 13-1105, and kidnapping, A.R.S. § 13-1304. He was found innocent on charges of aggravated robbery and theft. He was sentenced to death on the murder conviction and to twenty-one years imprisonment on the kidnapping conviction. We have jurisdiction pursuant to Ariz.Const. art. 6, § 5(3) and A.R.S. §§ 13-4031 and 13-4035. The facts of this case are as set out in State v. Libberton, 140 Ariz. ---, 685 P.2d 1284 (1984). Additional facts will be discussed as necessary.

RIGHT TO COUNSEL

James argues that his right to counsel was violated by the police. When James was arrested he was informed of the murder charge and of his rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). James said he understood his rights and he talked with a Detective Davis for approximately nineteen minutes in a small, windowless room. James does not allege that the statements he made during this interview were obtained in violation of his constitutional rights. The judge who presided over the voluntariness hearing, who was not the trial judge, found these statements to be voluntarily made, and we agree that these statements were taken in conformity with Miranda, supra. See also State v. Montes, 136 Ariz. 491, 667 P.2d 191 (1983).

At the nineteen-minute mark of the interview, James asked what would happen to him to which Davis responded "it's up to the courts." James then asked for an attorney. Instead of immediately ceasing the interrogation, see Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981) (interrogation must cease when an accused asks for counsel), Davis told James he only wanted the facts and to give James an opportunity to tell his side of the story. James hesitated, said he did not need an attorney, then changed his mind and asked a second time for an attorney. Because James said nothing, he was not harmed.

When James asked for an attorney the second time, Davis, who was seated across from James, rose, turned, walked to the door and opened it. At that moment, Detective Midkiff arrived at the door. Midkiff faced Davis and asked: "Did he tell you where the body is?" There were two simultaneous responses: Davis said that James had asked for counsel; James volunteered that he would tell them where the body was located. James claims that his statement should have been suppressed and the fruits of that statement, the body, should have been suppressed also.

Incriminating statements are not admissible unless Miranda warnings are administered. Montes, supra, 136 Ariz. at 494, 667 P.2d at 194. If Miranda warnings were administered, the next requirement for admissibility is voluntariness. Id. at 495, 667 P.2d at 195. Because James asked for an attorney before he made this statement, Edwards, supra, and its progeny are controlling.

If an accused asks for counsel, he may not be interrogated unless counsel has been provided or the accused initiates the further discussion. See Edwards, supra, 451 U.S. at 484-85, 101 S.Ct. at 1885. Counsel was not provided for James and our inquiry focuses on the latter method of complying with Edwards, supra. In Wyrick v. Fields, 459 U.S. 42, 46, 103 S.Ct. 394, 395, 74 L.Ed.2d 214 (1982), the Court said that "Edwards makes clear that the right to have a lawyer present can be waived ...." In Oregon v. Bradshaw, --- U.S. ----, ----, 103 S.Ct. 2830, 2835, 77 L.Ed.2d 405 (1983), Justice Rehnquist, speaking for the plurality consisting of three other members of the Court, said that after an accused asks for counsel, subsequent statements made without benefit of counsel are admissible if the accused "initiates" the dialogue. "Initiate" is defined in its "ordinary dictionary sense." Id. Statements made by an accused that "represent a desire on the part of an accused to open up a more generalized discussion The dissent in Bradshaw, supra, written by Justice Marshall, in which three members of the court joined, agreed with the plurality's two-step analysis of initiation and waiver, but the dissent defines "initiate" more narrowly than the plurality. An accused initiates further communication for purposes of Edwards when his statements are "about the subject matter of the criminal investigation." Bradshaw, supra, --- U.S. at ----, 103 S.Ct. at 2839 (Marshall, J., dissenting) (emphasis in original). The dissent concludes that to establish a waiver one of the necessary facts is that the accused initiated the dialogue as defined above.

                relating directly or indirectly to the investigation ..." will satisfy the requirement of "initiate."  Id.  If the accused is found to have initiated the dialogue, the statement is voluntary.  The next step under Bradshaw, supra, is a finding by the trial court that the accused waived his right to counsel.  Waiver is found using the Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (knowing and intelligent waiver, see, Bradshaw, supra, --- U.S. at ----, 103 S.Ct. at 2836, Powell, J., concurring), standard.  In making the determination concerning waiver the trial court can look at the totality of the circumstances, including the conduct of the accused, his background and experience.  North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 1757, 1758, 60 L.Ed.2d 286 (1979), quoting Zerbst, supra, 304 U.S. at 464, 58 S.Ct. at 1023.   Thus, the plurality opinion in Bradshaw requires that the trial court make two findings:  1) the accused initiated the discussion;  and 2) the accused waived his right to counsel
                

Justice Powell, who concurred in the judgment, found the two-step analysis confusing. Id. at ----, 103 S.Ct. at 2837 (Powell, J., concurring). He found the Zerbst standard "widely understood and followed," and that "[i]t also comports with common sense." Id. For Justice Powell, a finding of a waiver necessarily indicates the statement is voluntary.

Eight justices endorse the two-step analysis, so we must apply it. We will now determine whether the judge below found that James initiated the communication and whether James waived his right to counsel. At the voluntariness hearing, Davis testified that James was alert, coherent, and did not appear to be under the influence of any intoxicant. He further testified that when he administered the Miranda warnings to James, James said he understood his rights but wanted to talk to Davis. James' later conduct indicates he understood his rights, because James invoked his right to counsel. When Davis tried to continue the interrogation, James' conduct again indicates he understood and was capable of exercising his rights, because James said a second time he wanted an attorney.

Both detectives testified that Midkiff's question was directed to Davis. Both testified that Midkiff faced Davis and asked the question in a normal tone of voice. Both detectives testified that no threats, promises or force were used to induce the statements. James did not testify at the voluntariness hearing.

The judge who presided over the voluntariness hearing said that James "knowingly, willingly, and voluntarily made" the statement and there were no threats, promises or force used to induce the statement. The judge did not explicitly state that Midkiff's question to Davis was not interrogation as defined in Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), nor did he explicitly state in the order that James waived his right to counsel; however, we find that both are implicit in his findings based on this record.

There was uncontradicted testimony that James understood his rights. There was uncontradicted testimony that Midkiff's question was meant solely for Davis. Although the court did not employ all of the proper "buzz words," the record indicates that James made a decision to cooperate with the police without benefit of counsel, and his statement fits either definition of "initiate" in Bradshaw, supra. The judge's ruling indicates that the police did Following this statement, James and the officers drove to Salome, Arizona, which was a two-hour drive. James directed the officers to the site, but no other words were spoken during the trip to Salome. At the site, and during the return trip James made inculpatory statements. Some of the statements were made in response to questions; some were not. These statements were made, as the judge below found, "knowingly, willingly and voluntarily" and after James decided to proceed without counsel.

not coerce James' statements, rather James, who knew his rights and how to exercise them, decided to cooperate. We hold that his statement was not obtained in violation of any of James' constitutional rights, as he initiated the communication and the judge implicitly found that James knowingly and intelligently waived his right to counsel.

In sum, the motion to suppress the statements was properly denied. It follows that the evidence found as a result of the statements was admissible.

We note that the voluntariness hearing in this case was before Edwards was explained in Bradshaw and strict compliance with Bradshaw was not, therefore, achieved. In future cases, judges shall state on the record their findings of fact and conclusions of law. We think this is compelled by a reading of the plurality and concurring opinions, both of which express a strong preference for the trial court to make a record that sets forth the reason for its decision.

RIGHT TO JURY

James argues that he has a right under the United States and Arizona Constitutions to...