State v. Kroupa
| Decision Date | 20 January 1972 |
| Docket Number | No. 2,CA-CR,2 |
| Citation | 16 Ariz.App. 254,492 P.2d 750 |
| Parties | The STATE of Arizona, Appellee, v. Melvin Charles KROUPA, Appellant. 266. |
| Court | Arizona Court of Appeals |
Gary K. Nelson, Atty. Gen., by John S. O'Dowd, Asst. Atty. Gen., Tucson, for appellee.
Howard A. Kashman, Pima County Public Defender, by Eleanor Daru Schorr, Deputy Public Defender, Tucson, for appellant.
Contrary to his plea the defendant was convicted by a jury of the crime of second degree burglary and sentenced by the court to a term in the Arizona State Prison of not less than four nor more than five years.
The issues in this case concern the admissibility of defendant's oral and written confessions and the failure of the court to order any mental examination of defendant. The facts shall be recited as they concern the specific issues.
On November 22, 1970, the defendant was apprehended by the police in the act of burglarizing the National Metals Company in Tucson, Arizona. Upon apprehension he was placed in the rear of a patrol car together with an accomplice. Officer Jennings of the Tucson Police Department warned both the defendant and his accomplice of their 'Miranda rights' and upon being asked whether or not they wished to say anything, both indicated that they did not. Officer Jennings then left the patrol car and upon returning a conversation was initiated by the defendant. On direct examination Officer Jennings, at a voluntariness hearing out of the presence of the jury, testified:
'Q. Okay. Do you recall what the subject of the conversation was generally or do you recall any of the specific questions that he asked you?
A. Well, basically he was asking me about how he would make bond in a case like this since he was from out of state and unknown by practically everybody in the state. In other words, he had nobody here to use as a reference.
Q. Okay. This I assume was a two-way conversation. Did you say anything back to the defendant?
A. Yes. As best as I could I tried to answer him.
Q. Okay. Did this conversation--where did this conversation go from that point? Was there anything further to it?
A. After a few minutes of just the general conversation Mr. Kroupa indicated to me that he didn't want to say anything where he was at that time.
Q. Okay. And what happened?
A. He was taken out of the car and to another area.
Q. And what occurred at the other area?
A. Well, I then asked him some questions to which he answered.'
On cross-examination the following questions were asked by defendant's attorney and answered by Officer Jennings:
'Q. . . . You stated that the defendant Mr. Kroupa said he didn't want to speak where he was at or something to that effect. Can you recall exactly what he said?
A. No, I can't. It was as much by word as by gesture.
Q. What was the gesture that he used?
A. The eyes mainly.
Q. Could you go through exactly what he did if you can recall, how he told you by using his eyes he wanted to speak some other place?
A. I knew what he wanted by the words and I knew for sure by the eyes. It was a spontaneous reaction of both his gestures and his words. He would start a sentence and then not complete it because he wanted to get my attention but he told me that he didn't want to sit there with his eyes. It was clear to me what he meant.
Q. An then you looked right at his eyes and you could tell by his eyes he meant to go some place else; is that right?
A. Yes.'
After Officer Jennings started to speak with the defendant in the rear of the auto, another officer, Officer Walsh, appeared on the scene. Officer Walsh again read defendant his 'Miranda rights' and the defendant indicated that he wanted to speak to Officer Walsh. At a later time a written confession was taken from the defendant which contains his signature and a written waiver of his 'Miranda rights.'
At the conclusion of the voluntariness hearing, the trial judge found, beyond a reasonable doubt, that the defendant was properly and fully advised of his constitutional rights, that he understood them, that he waived his constitutional rights and that his statements were wilfully and voluntarily made.
In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) the court stated:
384 U.S. at 473--474, 86 S.Ct. at 1627, 16 L.Ed.2d at 723.
Citing the cases of People v. Randall, 1 Cal.3d 948, 83 Cal.Rptr. 658, 464 P.2d 114 (1970); People v. Ireland, 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580 (1969) and People v. Fioritto, 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625 (1968), the defendant contends that the oral and written confessions were secured in violation of his constitutional rights since he initially indicated to the police that he did not desire to say anything.
We do not agree. In all the cases upon which the defendant relies, the initiation of interrogation after the assertion of Fifth Amendment privileges came from the State and not the defendant. That is not true in the case at hand. Volunteered statements of any kind are not, barred by the Fifth Amendment and their admissibility is not affected by the holding in Miranda. See Miranda v. Arizona, supra, 384 U.S. at 478, 86 S.Ct. 1602, 16 L.Ed.2d at 725--726. A change of mind on the part of the defendant prompted by his own psychological makeup and not by continued interrogation and efforts to convince the defendant to communicate with the officers is not proscribed by Miranda. People v. Randall, supra; People v. Ireland, supra. At the voluntariness hearing the defendant testified. He did not in any manner contradict the testimony of the police officers. Rather, his testimony was that he did not remember anything since he was under the influence of drugs. This brings us to his next contention, which is that he was unable to waive any of his 'Miranda rights' because of being under the influence of drugs.
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State v. Arnett
...volunteered to give a statement to Collier; the interrogation was not initiated by the police. It has been held, in State v. Kroupa, 16 Ariz.App. 254, 492 P.2d 750 (1972), "Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by th......
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State v. Ferguson
...kind is volunteered, it is neither barred by the fifth amendment nor is its admissibility affected by Miranda. State v. Kroupa, 16 Ariz.App. 254, 257, 492 P.2d 750, 753 (1972). The evidence before the trial court was uncontradicted that defendant initiated the conversation and that the stat......
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State v. Robinson, 11059
...given, the subsequent statements, according to Miranda, itself, are admissible. A case very much in point is State v. Kroupa, 1972, 16 Ariz.App. 254, 492 P.2d 750. There the defendant was apprehended by police in the act of burglary. Upon being placed in the back of a police car, Officer Je......
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State v. Small
...kind are not, barred by the Fifth Amendment and their admissibility is not affected by the holding of Miranda.' State v. Kroupa, 16 Ariz.App. 254, 257, 492 P.2d 750, 753 (1972). Furthermore, where there is no interrogation and the defendant utters words which are self-incriminating, these w......