State v. Lombardo

• Decision Date: 07 July 1969
• Docket Number: No. 1819,1819
• Citation: 457 P.2d 275,104 Ariz. 598
• Parties: STATE of Arizona, Appellee, v. Andrew LOMBARDO, Appellant.
• Court: Arizona Supreme Court

Page 275

457 P.2d 275

104 Ariz. 598

STATE of Arizona, Appellee, v. Andrew LOMBARDO, Appellant.

No. 1819.

Supreme Court of Arizona, In Division.

July 7, 1969.

Gary K. Nelson, Atty. Gen., by Carl Waag, Asst. Atty. Gen., for appellee.

Leibsohn & Goldstein, Phoenix, for appellant.

UDALL, Chief Justice:

On November 20, 1965, Andrew Lombardo and Gino Salerno stole two suits from Skomer's Men's Store located in the Park Central Shopping Center, Phoenix. The suits were valued in excess of $100.00. The theft was witnessed by Helen Lipnick, a security officer for Goldwater's Department Store, and Patrick O'Keefe, a security officer for Diamond's Department Store. Lombardo was followed from Skomer's by Lipnick and O'Keefe and arrested in the parking lot with the two suits in his possession. Salerno was picked up later in another part of the center. The two men were jointly tried for grand theft and found guilty by a jury.

The information filed against Lombardo and Salerno charged that:

'* * * ANDREW LOMBARDO AND GINO SALERNO on or about the 20th day of November, 1965, * * *, stole from SKOMER'S two mens suits of the value of more than $100.00, all in violation of Sections 13--661, 13--663, as amended 1963, 13--138, 13--139, and 13--140, A.R.S.;'

It is contended that the above information did not charge a public offense so as to confer jurisdiction upon the court.

Specifically, Lombardo's contention concerns the sufficiency of the description of the stolen property in the information. It is our view that the property was sufficiently described. In State v. Little, 104 Ariz. 479, 455 P.2d 453 (filed June 11, 1969), we ruled that the information was not defective where it charged defendant with stealing 'from GOODYEAR RETREAD PLANT, Goodyear tires of the value of more than $100.00; * * *.' As in the Little case, Lombardo's remedy was by way of a request for a bill of particulars pursuant to Rule 116, Arizona Rules of Criminal Procedure, 17 A.R.S. See also, State v. Terrell, 103 Ariz. 453, 445 P.2d 429 (1968). In a bill of particulars information could have been disclosed by the state concerning the color and fabric of the suits as well as the manufacturers' and brand names. That information was fully developed at trial and the record will be available to Lombardo as a bar to any subsequent action which might be filed against him for the same offense.

Lipnick testified at trial that when she arrested Lombardo in the Park Central parking lot she showed him a card which identified her as a deputy county sheriff. The evidence indicated that the sheriff's office issued the card but did not vest in Lipnick any authority to act on behalf of the department. Lipnick's work was not supervised or controlled by the sheriff's office and she received no pay from them.

Subsequent to the arrest in the parking lot Lombardo was taken by Lipnick and O'Keefe to the security office in Goldwater's and the Phoenix police were notified of the arrest. While both Lipnick and O'Keefe were present in the security office Lombardo stated he would like to pay for the suits. The offer was refused. Lipnick then left to find Salerno. O'Keefe testified that he talked casually with Lombardo for a few minutes about experiences O'Keefe had had in New York. At some point during the conversation Lombardo pulled some money out of his pocket and stated, 'I got $500, what will it cost me to get out of this?' After a hearing was conducted outside the presence of the jury, to determine the voluntariness of the statements, both Lombardo's offer to pay for the suits and his attempted bribe were admitted into evidence.

The admission of the above evidence forms the basis of Lombardo's next contention. He argues that it was improper for the court to admit any statements he made to Lipnick or O'Keefe subsequent to his arrest because he had not been advised of his rights pursuant to Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966). The state argues that Miranda is not applicable because Lipnick and O'Keefe were not 'law enforcement officers.'

Both statements by Lombardo were made spontaneously, not in response to questions asked by either security guard. There is no evidence that any interrogation took place in the security office. As stated in Miranda, supra:

'Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. * * * Volunteered statements of any kind are not barred by the Fifth Amendment * * *.' 384 U.S. at page 478, 86 S.Ct. at page 1630.

The trial judge admitted the statements because he felt they were of a voluntary nature and it is our opinion he did not err. See Deck v. United States, 9 Cir., 395 F.2d 89 (1968); People v. Ashford, Cal.App., 71 Cal.Rptr. 619 (1968).

Although our ruling that the statements were voluntary disposes of the issue of whether the evidence was admissible, we will discuss defendant's contention that the security officers were required to give the Miranda warnings.

In People v. Wright, 249 Cal.App.2d 692, 57 Cal.Rptr. 781 (1967), the defendant was being detained, pending arrival of the police, by hospital security guards for burglarizing an automobile in the hospital parking lot. He was questioned by one of the guards prior to being advised of his rights and in response made incriminating statements. The appellate court ruled that the security guards were not required to give the Miranda warnings.

In State v. Hess, 9 Ariz.App. 29, 449 P.2d 46 (1969), our Court of Appeals determined that private persons conducting a polygraph interrogation of store employees concerning several fires which had broken out in the store, did not have to give the Miranda warnings.

The Miranda doctrine is applicable to situations involving 'custodial interrogation,' or 'questioning initiated by law enforcement officers after a person has been taken into...