State v. Knaubert

• Decision Date: 01 June 1976
• Docket Number: CA-CR,No. 1,1
• Citation: 550 P.2d 1095,27 Ariz.App. 53
• Parties: STATE of Arizona, Appellee, v. Michael KNAUBERT, Appellant. 1228.
• Court: Arizona Court of Appeals

Page 1095

550 P.2d 1095

27 Ariz.App. 53

STATE of Arizona, Appellee, v. Michael KNAUBERT, Appellant.

No. 1 CA-CR 1228.

Court of Appeals of Arizona, Division 1, Department B.

June 1, 1976.

Rehearing Denied July 23, 1976.

Bruce E. Babbitt, Atty. Gen., by William J. Schafer, III, Teresa S. Thayer, Asst. Attys. Gen., Phoenix, for appellee

Ross P. Lee, Maricopa County Public Defender by Edmund T. Allen, Deputy Public Defender, Phoenix, for appellant.

OPINION

JACOBSON, Presiding Judge.

After a trial by jury, defendant, Michael Knaubert, was convicted of three counts of first degree rape, two counts of assault with intent to commit murder, one count of armed robbery and one count of lewd and lascivious acts. The defendant was sentenced to not less than 60 nor more than 99 years on all counts except for the lewd and lascivious act conviction for which he received four and a half years to five years. The sentences are to run concurrently.

The charges against the defendant arose out of two separate incidents. In the first, which occurred on March 22, 1974, the defendant picked up a male and a female hitchhiker, drove them to a desert area in the Carefree area and raped and shot the female and robbed and strangled the male.

The second incident occurred on July 12, 1974, when the defendant picked up two female hitchhikers. Using a gun, he took the females to a desert area near Carefree where he raped both of them and forced one of them to perform fellatio upon him. The defendant's primary defense to these charges was insanity.

On appeal, he raises six issues:

1. Because appellant's consent to a search of his bedroom was not voluntary, the trial court should have suppressed the evidence seized during that search.

2. Appellant's confession was not voluntary because of promises made to him.

3. The trial court erred in instructing the jury that there is a presumption of sanity when the appellant produced expert testimony that he was not legally sane at the time the alleged crimes occurred.

4. Appellant was denied his right to a speedy trial.

5. His sentence was excessive.

6. The trial court erred in not granting a defense motion for a directed verdict as to one of the rape charges.

As to the first issue, appellant was taken into custody in connection with the second incident on July 13, 1974. After being informed of his Miranda rights, the defendant confessed to the crimes. The police officer asked the defendant where the gun he used was located and he stated that it was in the desert area where the crime occurred. The defendant went with the police officers to the scene in an attempt to locate the gun. After failing to locate the gun in the desert, the defendant told the police officers that they could find it in his bedroom and gave them permission to retrieve it. He further told the police that the gun was in a footlocker in his bedroom at his parents' apartment.

The police then went to the defendant's parents' apartment where they were admitted without objection by his father. In their initial search of the bedroom, the police could not find the weapon, but the father volunteered the information that a particular trunk belonging to the defendant was in all probability where the gun could be located. The father obtained a key for the trunk and the police opened it. In the trunk, the police discovered various personal items consisting of a ring, necklace, a wallet, an address book and a watch which belonged to the victims of the first incident. ¹ At trial, the defendant's motion to suppress this evidence was denied.

First, appellant contends his consent to this search was not voluntary and that therefore the resulting warrantless search was illegal. This contention is based on the argument that when a defendant is in custody, as compared to a non-custodial situation, the record must affirmatively show that the defendant either knew of or was advised of his right to refuse to consent to the search. Appellant argues that because the record does not affirmatively show such knowledge, the court, as a matter of law, must reverse his conviction.

In our opinion, the Fifth Amendment to the United States Constitution does not require the test proposed by appellant. Rather, the test is whether the consent was voluntary in light of all of the surrounding circumstances. Knowledge of the right to refuse is only a part of this test and is not determinative in and of itself. The United States Supreme Court has stated 'it is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced. It is this careful sifting of the unique facts and circumstances of each case and that is evidenced in our prior decisions involving consent searches.' Schneckloth v. Bustamonte, 412 U.S. 218, 233, 93 S.Ct. 2041, 2050, 36 L.Ed.2d 854 (1973).

Appellant attempts to distinguish Schneckloth by arguing that it only applies to consents given by a defendant who is not in custody. However, this distinction has been rejected by the United States Supreme Court. The Court has stated:

'. . . (t)he fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search. Similarly under Schneckloth, the absence of proof that Watson (the defendant) knew he could withhold his consent, though it may be a factor in the overall judgment, is not to be given controlling significance.' United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 828, 46 L.Ed.2d 598, 609 (1976).

The defendant's reliance on State v. Johnson, 68 N.J. 349, 346 A.2d 66, 18 Crim.L.Rptr. 2097 (1975) is misplaced. In Johnson, the New Jersey Supreme Court imposed a stricter test under the New Jersey State Constitution than required under the Fifth Amendment to the United States Constitution. Defendant has cited no authority that the Arizona Constitution requires that the record show that an in custody defendant knew that he had the right to refuse to consent to the search. Absent such authority, we are unwilling to apply a more stringent requirement under the Arizona Constitution than is imposed by the Fifth Amendment to the United States Constitution. Since defendant's consent was not per se involuntary, we direct our inquiry as to whether under all of the circumstances surrounding the consent, it was in fact involuntary.

In the current case, the defendant was in custody. The inherent coercion of being in police custody is, of course, a significant factor in determining the voluntariness of a consent. See United States v. Rothman, 492 F.2d 1260 (9th Cir. 1973). However, in the current case the defendant was given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In fact, he was given these warnings on two separate occasions while he was in custody. Also, when the police first apprehended the defendant, they asked if they could search his automobile. Prior to this search, he was advised that he had a right to refuse to allow the police to search the car. Accordingly, it appears that appellant was at one point informed of his right to refuse to consent to a search.

Further, he was 'repeatedly' advised that 'he didn't have to do anything that he didn't want to.' Finally the consent to the search was in the context of a confession to the crime. The degree of affirmative assistance given to the police is relevant in determining whether consent exists. State v. Sherrick, 98 Ariz. 46, 402 P.2d 1 (1965). Because the defendant voluntarily confessed that he committed the crimes and actively assisted the police in their search, this evidence would support a conclusion that the defendant voluntarily consented to the subsequent search of his room. See authorities cited, Annot., 9 A.L.R.3d 858, 883 (1966).

We therefore conclude that the evidence supports the trial court's determination that the defendant's consent to the search was voluntary and was not coerced, and that the evidence found as a result of that search was admissible.

Next, defendant claims that the trial court did not make a sufficient finding on the record that defendant's confession was voluntary. The voluntariness issue was raised in the form of a motion to suppress appellant's statements, which was heard contemporaneously with a motion to dismiss and a motion to suppress in court identification. The trial court conducted a hearing prior to the trial on these motions, but at the conclusion, failed to make a specific finding, but rather stated, 'I will deny those motions.' In its subsequent minute order, the court ruled: 'It is Ordered that the motion to suppress statement is denied.' The lack of specificity alleged is the failure to state that the confession was voluntary.

It is well established that a statement may be admitted for consideration by the jury only if the trial judge makes a definite determination that the statement was voluntary. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); State v. Costello, 97 Ariz. 220, 399 P.2d 119 (1965). Our Supreme Court has always insisted that the trial court follow the strict requirements of Jackson in making this determination. State v. Marovich, 109 Ariz. 45, 504 P.2d 1268 (1973); State v. Ramos,108 Ariz. 36, 492 P.2d 697 (1972); State v. Mileham, 100 Ariz. 402, 415 P.2d 104 (1966).

As was stated in Marovich, supra:

'His (Attorney General) argument is that the judge's over-ruling of the motion to suppress was tantamount to a finding of voluntariness, and that to require the ruling to be a finding of voluntariness in so many words 'is to enshrine form over substance.' The argument is persuasive where it is clear that the judge understood Jackson v. Denno, supra, and merely worded his ruling badly. . . . In any event, we think that having repeatedly followed the strict requirements of Jackson v. Denno, supra, from its decision right up to this year, we should not overrule the cases cited above.'...