State v. Jordan

• Decision Date: 30 December 1976
• Docket Number: No. 3156,3156
• Citation: 114 Ariz. 452,561 P.2d 1224
• Parties: STATE of Arizona, Appellee, v. Paul William JORDAN, Appellant.
• Court: Arizona Supreme Court

Page 1224

561 P.2d 1224

114 Ariz. 452

STATE of Arizona, Appellee, v. Paul William JORDAN, Appellant.

No. 3156.

Supreme Court of Arizona, In Banc.

Dec. 30, 1976.

Bruce E. Babbitt, Atty. Gen. by William J. Schafer, III, and Frank T. Galati, Asst. Attys. Gen., Phoenix, for appellee.

Derickson, Kemper & Henze by James Hamilton Kemper, Phoenix, for appellant.

HAYS, Justice.

This is an appeal by Paul William Jordan from a conviction after jury trial for first degree murder. Appellant was sentenced to be punished by death. We have jurisdiction pursuant to Ariz.Const. art. 2, § 24 and art. 6, § 5; A.R.S. §§ 12--120.21, 13--1711; and 17 A.R.S. Rules of Criminal Procedure, rule 31.2(b).

The appellant was charged with the murder of the proprietor of a grocery store in Tempe, Arizona, that occurred during the course of a robbery on January 15, 1974. Two investigators had received information that appellant had something to do with the robbery and proceeded to interview the appellant after informing him of that fact. Within a matter of hours, the appellant confessed to the murder.

Appellant raises three issues on appeal:

1. Was appellant's constitutional right to due process of law, guaranteed by the Fourteenth Amendment to the United States Constitution, denied by the introduction of his confession in evidence?

2. Did the trial court err in imposing the death penalty?

3. Was the appellant denied his rights under the Eighth and Fourteenth Amendments to the United States Constitution, to be free from Cruel and Unusual Punishment, when he was sentenced to death under A.R.S. § 13--454?

I

Appellant first argues that his confession was involuntary, and as such was inadmissible in evidence. His argument is couched in terms of the voluntariness of a confession when induced by promises made to a defendant by police officers.

It appears from the record that the basis of the appellant's claim concerns two separate promises made by the authorities prior to the appellant's confession. The course of events which gives rise to this contention is as follows.

On May 1, 1974, while in custody in Texas, the appellant first maintained that he had no knowledge of the Tempe incident. Shortly thereafter, however, after talking with his girlfriend, Nancy Caldwell, he told the investigators that he would make a statement to them upon certain conditions. He stated that if the charges he was then facing in Texas were dropped and if the charges pending against Nancy Caldwell were dropped and she was released, he would then give a statement. The officers indicated that they had no authority to accomplish the results he sought, but they did offer to contact the Texas prosecutor in charge of the case concerning the dropping of charges. The investigators thereupon called the county district attorney, a Mr. Tandy, and arranged a meeting for later that day.

While waiting for Mr. Tandy to appear at the Weatherford Police Department, a conversation ensued between the Tempe police officers and Jordan in which Jordan asked the investigators whether Arizona had the death penalty. One of the officers replied to the effect that they could not remember the last time anyone received the death penalty in Arizona. They later ventured an opinion during the course of the conversation, that the appellant probably would get a prison sentence rather than the death penalty. However, he was also told at that time that this was only the officer's opinion and that ultimately his sentence was up to the judge and jury. Jordan admitted at the voluntariness hearing that a specific guarantee was never made to the effect that the most he would receive would be life.

A short while later, the prosecutor, Tandy, arrived and he and the appellant and Nancy Caldwell met in private. At the conclusion of the meeting, the appellant was willing to make a statement. He was again advised of his Miranda rights and he thereupon confessed to the crime for which he was here charged. At the meeting the prosecutor, Tandy, had agreed to drop the Texas charges against both Ms. Caldwell and Jordan and to release Nancy Caldwell if the appellant made his statement to the Arizona authorities.

The trial court held a hearing on the voluntariness of the confession and found it to be voluntary. A jury trial was thereafter held and the confession, and testimony concerning the circumstances surrounding the giving of the confession, were offered in evidence.

The appellant contends that his confession was the result of the promise that his and Nancy Caldwell's charges in Texas would be dropped. Although it was not raised in the appellant's brief, it is certainly incumbent on us to consider in addition, pursuant to A.R.S. § 13--1715(B) and State v. James, 110 Ariz. 334, 519 P.2d 33 (1974), whether the confession was the product of what may be construed as a promise of leniency, referring to the officer's statement that he would probably get life and not the death penalty.

The admissibility of a confession is proper only when it was freely and voluntarily given and was not the product of either physical or psychological coercion. State v. Edwards, 111 Ariz. 357, 529 P.2d 1174 (1974).

'While '(n)o single litmus-paper test for constitutionally impermissible interrogation has been evolved', the test remains the test of voluntariness. Culombe v. Conn., 367 U.S. (568,) at 601, 81 S.Ct. (1860,) at 1878 (6 L.Ed.2d 1037). If the confession is the result of a free choice of the individual, then it may be used as evidence against him, but if his will has been overborne and his capacity for decision diminished, then the use of his confession is violative of the principles of due process.' 111 Ariz. at 361, 529 P.2d at 1178.

We find that the appellant here did make his confession freely and voluntarily and without coercion or under duress.

Addressing ourselves first to the promise by the prosecutor, Tandy, that Jordan's and Nancy Caldwell's charges would be dropped and that Caldwell would be released if he gave a statement, we note that it was the appellant himself who initiated the 'bargaining.' When first questioned, the appellant knew nothing. After talking with Caldwell, however, the appellant told the officers that he would give a statement if certain conditions were met. The officers cooperated in his desires but never made any offers to induce or coerce the appellant to talk.

We find the case of Taylor v. Commonwealth, Ky., 461 S.W.2d 920 (1970), to be instructive on this particular matter. In Taylor, the facts were very similar to those herein. The two defendants, charged with crimes in both Indiana and Kentucky, offered to make confessions of the Kentucky crimes if the charges against them in Indiana would be dismissed. The authorities agreed and the defendants signed their confessions. At trial they argued that their confessions, having been induced by a promise, were involuntary. The court disagreed, however, finding that, because the proposal for the 'deal' came from the defendant, the promise did not interfere with the appellants' exercise of a free volition in giving the confession. The court then justified their conclusion.

'In Miranda v. Arizona, 384 U.S. 436, the Supreme Court said (at page 478, 86 S.Ct. 1602, at page 1630, 16 L.Ed.2d 694):

". . . Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. . . .'

'We think it is obvious that the 'compelling influences' referred to are ones exerted by the Public authorities in such a way as would be calculated to affect the accused's exercise of a free and voluntary choice of whether or not to confess. Here the promise was Solicited by the accused, freely and voluntarily, so they cannot be heard to say that in accepting the promise they were the Victims of compelling influences.' 461 S.W.2d at 922. Accord, Hunter v. Swenson, 372 F.Supp. 287 (W.D.Mo.1974), Aff'd, 504 F.2d 1104 (8th Cir. 1974).

We agree with the analysis and holding of Taylor. Since the appellant himself initiated the 'deal' here involved by offering to confess if the Texas charges were dropped, we cannot see how the appellant could have been induced to confess by the authorities' agreement to his terms.

'The record reveals all the manifest indicia of comprehension of his rights, waiver thereof, and a continuing desire to make a statement. We do not have to plumb the depths of the defendant's mind to determine ab initio the issue of voluntariness. The police, as reasonable men, may rely on consistent objective manifestations of consent and waiver by a suspect.' State v. Sample, 107 Ariz. 407, 408, 489 P.2d 44, 45 (1971).

We find that the promise not to prosecute in Texas, having been solicited by the appellant, did not render his confession involuntary.

A second 'promise' arguably was made by the police during the questioning prior to the confession when one of the officers ventured the opinion that the appellant would probably get a life sentence in Arizona rather than the death penalty. Although the appellant admitted at the voluntariness hearing that no specific guarantees were made, he did insist in his testimony at trial that 'he was under the impression' that he was promised, in so many words, that he would get a life sentence and therefore be eligible for parole in seven to seven and one-half years. He also claimed that his alleged 'promise' was one of the reasons that he confessed.

The trial court's determination of the admissibility of a confession will not be upset on appeal absent 'clear and manifest' error. State v. Edwards, supra. The court below found the confession to be freely and voluntarily given and therefore admissible.

The statement concerning the sentence he might receive was couched in terms of a mere possibility. Although the record is unclear, it appears that it was made in response to the appellant's questioning the officers about possible sentences he would receive in Arizona....