State v. Linden

• Decision Date: 17 February 1983
• Docket Number: CA-CR,Nos. 1,s. 1
• Citation: State v. Linden, 136 Ariz. 129, 664 P.2d 673 (Ariz. App. 1983)
• Parties: STATE of Arizona, Appellee-Respondent, v. Ernest Keelen LINDEN, Appellant-Petitioner. 5712, 1 6149-PR.
• Court: Arizona Court of Appeals

Page 673

664 P.2d 673

136 Ariz. 129

STATE of Arizona, Appellee-Respondent, v.Ernest Keelen LINDEN, Appellant-Petitioner.

Nos. 1 CA-CR 5712, 1 CA-CR 6149-PR.

Court of Appeals of Arizona Division 1, Department C.

Feb. 17, 1983.

Rehearing Denied April 13, 1983.

Review Denied May 24, 1983.

Robert K. Corbin, Atty. Gen., William J. Schafer III, Chief Counsel by Barbara A. Jarrett, Asst. Atty. Gen., Phoenix, for Appellee-Respondent.

Charles F. Hyder, P.A. by Charles F. Hyder, Phoenix, for appellant-petitioner.

OPINION

JACOBSON, Presiding Judge.

The defendant appeals from jury verdicts finding him guilty of burglary, first degree; two counts of kidnapping; and, two counts of armed robbery.The jury found the defendant not guilty of two counts of aggravated assault.Subsequent to perfecting an appeal in this court, the defendant filed a Petition for Post-conviction Relief pursuant to Rule 32,Arizona Rules of Criminal Procedure.A Petition for Review of the trial judge's denial of relief pursuant to Rule 32 has been consolidated with the appeal.

On October 29, 1980, the defendant and Ed McCall posed as Scottsdale detectives to gain entrance into the home of Marvin and Debra Spiegel in Scottsdale, Arizona.After being admitted into the home by Mr. Spiegel, McCall pointed a gun at Spiegel, ordering him into the family room of the home, where they joined the defendant and Mrs. Spiegel.The defendant had already gone into the family room and placed the Spiegels' great dane outside.He had also ordered Mrs. Spiegel, who had arisen from the couch, to sit down and shut up.Both husband and wife were then seated on the couch in the family room.

After the defendant placed surgical type gloves on his hands, he removed tape from his pocket which he used to bind both of the victims' arms behind their backs.Mr. Spiegel was shoved onto the couch face first, as was Mrs. Spiegel.A blanket was placed over her.A third person then entered the home and went to the bedrooms where a search was apparently conducted for jewelry and other valuables maintained at the home.

A short time later, McCall held the gun to Mr. Spiegel's head and requested further information on the location of other valuable jewelry in the home.Shortly thereafter, all intruders left.

The defendant was arrested on February 25, 1981, at approximately 1:00 p.m. by Phoenix police officers.He was advised of his Miranda rights at that time, but no interrogation took place.He was then transported to the main station of the Phoenix Police Department and arrived there at approximately 1:30 p.m.The Phoenix police then notified Detective David Evans, of the Scottsdale Police Department, who was the officer chiefly responsible for conducting the burglary investigation of the Spiegel home.

Detective Evans arrived at the Phoenix Police Department at approximately 2:05 p.m. and he re-advised the defendant of his Miranda rights.After speaking with Evans for a short time, the defendant indicated that he wanted to talk about making a deal.Evans informed him that he did not have the authority to make a deal, that only the County Attorney's office had that power.The defendant then indicated that he wanted to speak with the County Attorney.This was at approximately 3:00 p.m.

Attempts were then made to contact the County Attorney, who arrived at the Phoenix Police Department at 4:00 p.m. to speak with the defendant.What occurred during that conversation was the subject of dispute both at the Motion to Suppressthe defendant's statements and at the trial itself.The County Attorney spoke with the defendant for approximately 15 to 25 minutes and left.

Thereafter, at approximately 5:15 p.m., the defendant gave a lengthy statement implicating himself in the burglary.At trial, the defendant's participation in the burglary was not contested.The evidence regarding his presence and participation was overwhelming.His only defense was that he was acting under duress and coercion, because he feared for his life and his family's safety if he did not cooperate with individuals whom he indicated were involved with organized crime.On appeal, the defendant raises the following issues:

(1)The trial court erred in admitting his confession;

(2)The trial court erred in denying a motion for directed verdict on the counts of kidnapping and aggravated assault;

(3)The trial court made prejudicial remarks during the trial;

(4) Prosecutorial misconduct deprived defendant of a fair trial; and

(5)The trial court abused its discretion in denying Rule 32 relief.

ADMISSIBILITY OF THE CONFESSION

The defendant contends that the trial judge erred in denying his motion to suppress his confession as being involuntary because the evidence showed that: (1)he was denied the assistance of counsel after making a specific request for an attorney; (2) his statement was the result of a promise or a threat by the police; (3) the statement resulted after a long period of incommunicado interrogation; and, finally, (4) the statement was taken during a period of time when his attorney was attempting to contact him.

Initially, we note that the trial court's findings of fact regarding the admissibility of a confession will be upheld by this court if supported by adequate evidence in the record.State v. Jerousek, 121 Ariz. 420, 590 P.2d 1366(1979).The evidence at the suppression hearing on whether the defendant had specifically requested an attorney was in conflict.The trial court has the duty to resolve conflicts in the evidence, and this court will uphold the findings if they are supported by adequate evidence in the record.State v. Rhymes, 129 Ariz. 56, 628 P.2d 939(1981).

At the suppression hearing, all of the police officers testified that the defendant never made any specific requests for an attorney.In his taped confession, when asked whether he had requested an attorney, he stated that "It's been left pretty much up in the air.I don't believe that I ever did request an attorney."One of the officers, who had interviewed the defendant, testified that he could not recall any particular attorney's name mentioned by the defendant, but stated, "There may have been [some attorney's name mentioned].There was a brief conversation about who he should get for an attorney.He was asking me, the way I took it, for my advice on who a good attorney would be."The officer advised the defendant that it would be improper to advise him on anything like that, since he was a defendant in a criminal case and he was a police officer.

We agree that if the defendant invoked his right to counsel during custodial interrogation, the confession following that invocation of counsel is invalid.Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378(1981).The real issue is whether the defendant's inquiry as to "who a good attorney would be" was sufficient to invoke his right to counsel, thus requiring an end to the interrogation.

The defendant's taped statement corroborates the police officer's testimony that whether or not the defendant specifically requested an attorney was left up in the air.Initially, we note that the defendant was a former police officer.He testified that he was trained in the giving of Miranda rights, and understood them.Furthermore, he was advised of his rights on three separate occasions prior to giving his statement.We also note that the defendant did not refuse to speak with the officers, and, in fact, requested the presence of the County Attorney in order to discuss a "deal" with him.The record clearly discloses that rather than pursuing the matter of counsel, the defendant desired to learn what the authorities had discovered about his connection to various criminal activities and to initiate a possible "deal" with the County Attorney.The record shows that the defendant clearly understood his right to counsel and did not make a specific request for assistance of counsel.See, United States v. Bettenhausen, 499 F.2d 1223, 1231(10th Cir.1974)(no invocation of right to counsel where defendant asked interviewing officer if he needed counsel and officer responded that decision was for defendant to make);Collins v. Fogg, 425 F.Supp. 1339, 1341(EDNY, 1977)aff'd, 559 F.2d 1202(2nd Cir., 1977), cert. denied, 434 U.S. 869, 98 S.Ct. 210, 54 L.Ed.2d 147(1977)(request to police officer for recommendation of attorney insufficient to invoke right to counsel and require cessation of questioning);People v. Whitman, 182 Colo. 6, 10, 510 P.2d 432, 434(1973)(no invocation of right to counsel when defendant asked how to contact attorney but made no attempt to do so);Grimsley v. State, 251 So.2d 671, 672(Fla.App.1971)(no invocation of right to counsel where, after being informed of such right, defendant asked officer whether he thought counsel was necessary);Reid v. State, 478 P.2d 988, 999(Okl.Cr.App.1970)(no invocation of right to counsel where defendant told whether to invoke such right was his decision and he thereafter made no effort to do so);Commonwealth v. Weaver, 274 Pa.Super. 593, 418 A.2d 565(1980)(defendant did not invoke right to counsel by asking officer whether he thought she needed an attorney and officer told her that decision was hers to make).

Having concluded that defendant did not invoke his right to counsel, and that no necessity existed to terminate the interview with him, we turn to the other issues raised as to whether his confession was voluntary.Specifically the defendant contends that his confession was involuntary because it was made after many hours of incommunicado interrogation and after promises of a recommendation for a reduced sentence.

In determining the voluntariness of a confession, the trial court must look at the totality of the circumstances surrounding the confession.State v. Hall, 120 Ariz. 454, 586 P.2d 1266(1978).As we noted above, the defendant was arrested at approximately 1:00 p.m. in the afternoon and gave a...