State v. Jerousek

Decision Date06 February 1979
Docket NumberNo. 4398,4398
Citation590 P.2d 1366,121 Ariz. 420
PartiesSTATE of Arizona, Appellee, v. Albert Earl JEROUSEK, Jr., Appellant.
CourtArizona Supreme Court
Robert K. Corbin, Atty. Gen., Jack A. LaSota, Jr., former Atty. Gen., William J. Schafer, III, Chief Counsel, Crim. Div., Barbara A. Jarrett, Asst. Attys. Gen., Phoenix, for appellee

George M. Sterling, Jr., Phoenix, for appellant.

GORDON, Justice:

Appellant Albert Earl Jerousek, Jr., hereinafter referred to as the defendant, appeals his conviction for child molesting, in violation of A.R.S. § 13-653, committing lewd and lascivious acts upon a child under the age of 15, in violation of A.R.S. § 13-652, and attempted rape, second degree, in violation of A.R.S. §§ 13-611 B, 13-614 B, 13-1647, 13-108, 13-109, and 13-110. Taking jurisdiction pursuant to 17A A.R.S., Supreme Court Rules, rule 47(e)5, we affirm.

On June 28, 1978, the victim in this case, a seven year old girl, indicated to several other children that she had been sexually molested by the defendant. One of these children reported the incident to her mother, who, in turn, called the victim's mother and the Phoenix Police. The child was taken to Good Samaritan Hospital where she was sedated and examined. The examination revealed a one-inch superficial straight laceration posterior to the vaginal opening. The examining doctor testified at trial that the laceration was consistent with an attempt to penetrate the victim's vagina by an adult male's penis.

After being informed of such findings and interviewing the victim, a Phoenix police officer interviewed the defendant at his home. The defendant asserted that he had not raped the child or forced her to do anything, but did admit that he had taken off her clothes, placed his fingers in her vagina, performed cunnilingus upon her, and touched her vagina with his penis. When questioned as to how many times he had done this to the victim in the past, he stated that "it started last summer."

The defendant was arrested, and subsequently a complaint was filed charging him with the crimes that comprise his appeal. At trial, evidence was presented against the defendant by the victim and two neighborhood children who corroborated her story, and by introducing the defendant's confession through the testimony of the arresting officer. Testimony of the victim regarding prior occasions when the defendant had molested her was also admitted.

We are faced with six issues on appeal:

(1) Whether the trial court erred in determining that defendant's confession was voluntary.

(2) Whether the trial court abused its discretion by refusing defendant's request that the victim undergo a psychiatric examination and by refusing to submit to the jury the question of the victim's competency to testify.

(3) Whether the trial court erred in allowing the victim to testify concerning prior bad acts that the defendant had committed upon her.

(4) Whether the trial court erred in refusing to give defendant's requested instruction on a lesser included offense.

(5) Whether the trial court erred in refusing to instruct the jury to return a specific finding that the victim was under 15 years of age.

(6) Whether the sentence imposed by the trial court was excessive and an abuse of the trial court's discretion.


The defendant contends that his confession was involuntary, having been made in response to an implied promise that he would not be arrested if he cooperated. Officer Buckner testified at the voluntariness hearing that he went to the defendant's residence and identified himself to the defendant's wife as a police officer. He told her that he needed to talk to her husband and, because of the embarrassing nature of the charges, asked her to go with the two small children into the other room.

The officer identified himself to the defendant and advised him that he was a The officer testified at the voluntariness hearing that his reason for not arresting the defendant immediately was to "get any statements I can, any incriminating statements and to continue with the investigation before placing him (the defendant) under arrest because I like to hear both sides of the story."

suspect in a crime that the officer was investigating. The officer read the defendant his Miranda rights and ascertained that he understood them. He then advised the defendant that he was accused of committing rape, lewd and lascivious acts, and child molestation. The officer also told the defendant that he had probable cause to arrest him without asking any questions. The defendant then responded to a series of questions concerning what he had actually done. The officer subsequently placed the defendant under arrest. The defendant told his wife that he was going to jail because he had been playing around with a little girl.

The defendant contends that because the officer did not arrest him before questioning, but merely told him that he had probable cause to do so, an implied promise was made to not arrest if the defendant cooperated. This Court does not agree.

Confessions are prima facie involuntary, and the burden is on the state to prove that the defendant's statements were freely and voluntarily made. State v. Knapp, 114 Ariz. 531, 562 P.2d 704 (1977); State v. Edwards, 111 Ariz. 357, 529 P.2d 1174 (1974). Moreover, for a confession to be deemed voluntary, it must not be obtained by a direct or implied promise, however slight. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Although Brady, supra, explicitly states that an implied promise will render a confession involuntary, we simply do not find that a promise, even an implied promise was made. We find the circumstances too attenuated to assume an implied promise to not arrest simply because an officer tells a suspect that he has probable cause to arrest, but postpones doing so until he hears the suspect's side of the story.

A prima facie case for admission of a confession is made when the officer testifies that the confession was obtained without threat, coercion or promises of immunity or a lesser penalty. State v. Watson, 82 N.M. 769, 487 P.2d 197 (1971). At the voluntariness hearing, Officer Buckner specifically stated that no promises were made to the defendant prior to arrest. A similar fact situation occurred in State v. Jones, 26 Ariz.App. 68, 546 P.2d 45 (1976). There, too, the defendant did not testify as to any implied or express promise, and the officer expressly stated that no promise was made. The court upheld the voluntariness of that confession, stating that it is for the trial court to resolve any conflicts in the evidence. The trial court's findings of fact on the voluntary nature of a confession will be upheld by this Court if supported by adequate evidence in the record. People v. Pineda, 182 Colo. 385, 513 P.2d 452 (1973); See also, State v. Castoe, 114 Ariz. 47, 559 P.2d 167 (1976).

We find that questioning a suspect before arresting him but after advising him of his rights and telling him that the officer has probable cause to arrest is not an implied promise to not arrest, if the defendant cooperates. Finding also that the record supports the trial court's ruling on voluntariness, we affirm.


Defendant contends that the trial court erred in not ordering a medical evaluation of the victim and in not submitting the question of her competency to the jury. Defendant bases his allegations on the victim's demeanor at trial and on A.R.S. § 12-2202, which states that children under ten cannot be witnesses if they "appear incapable of receiving just impressions of the facts respecting which they are to testify, or of relating them truly." Although A.R.S. § 12-2202 concerns civil proceedings, it is applicable to criminal trials pursuant to A.R.S. § 13-4061. See also State v. Brown, 102 Ariz. 87, 425 P.2d 112 (1967).

It has long been the law in Arizona that evaluating the competency of a witness is a matter left to the trial judge's discretion and that the court's ruling will not be overruled absent a clear abuse of discretion. State v. Harris, 107 Ariz. 41, 481 P.2d 504 (1971); State v. Berry, 101 Ariz. 310, 419 P.2d 337 (1966). A.R.S. § 12-2202 places a burden upon the trial court to examine all witnesses under the age of ten to determine their capability of receiving just impressions and relating them truthfully as witnesses. Davis v. Weber, 93 Ariz. 312, 380 P.2d 608 (1963). The trial judge's discretion in this matter is, however, practically unlimited. 1

The victim in this case was seven years old at the time of the crime and eight when the case came to trial. Before the trial started, the judge, prosecutor and defense attorney questioned the child in chambers concerning her school, home life and her ability to tell the truth and knowledge of the necessity to do so. At the conclusion of this interview, the Court found that the witness was qualified to testify without a psychiatric examination, and that it would be in the hands of the jury to evaluate her credibility. We, therefore, find no abuse of discretion on the part of the trial judge in permitting the victim to testify.

Whether a psychiatric examination of a sex-crime victim, who is under the age of ten, should be required before she is allowed to testify is also left to the sound discretion of the trial court. See State v. Berry, supra, in which the trial court determined the competency of a six year old complaining witness without the aid of a psychiatric examination. See also State v. Attebery, supra, and State v. Parker, 106 Ariz. 54, 470 P.2d 461 (1970), in which the trial courts determined, without the aid of a psychiatric examination, that nine year old complaining witnesses were competent to testify.

In Ballard v. Superior Court of San Diego County, 64 Cal.2d 159, 49 Cal.Rptr. 302, 410 P.2d 838 (1966), the California Supreme...

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