State v. Martin

• Decision Date: 05 October 1971
• Docket Number: No. 2097,2097
• Citation: 107 Ariz. 444,489 P.2d 254
• Parties: The STATE of Arizona, Appellee, v. Gordon R. MARTIN, Appellant.
• Court: Arizona Supreme Court

Page 254

489 P.2d 254

107 Ariz. 444

The STATE of Arizona, Appellee, v. Gordon R. MARTIN, Appellant.

No. 2097.

Supreme Court of Arizona, In Banc.

Oct. 5, 1971.

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

Ross P. Lee, Public Defender by James H. Kemper, Deputy Public Defender, Phoenix, for appellant.

UDALL, Justice:

Defendant, Gordon R. Martin, was found guilty by a jury of robbery and was sentenced to a term of not less than 25 nor more than 30 years in prison. The offense of which Martin was convicted consisted of the robbery of a U-Totem market in Mesa. We granted Martin's motion to take a delayed appeal. For the reasons advanced below, the judgment of the trial court is reversed and remanded.

The facts of the case which are relevant to the determination of this appeal are as follows: On April 29, 1962, at about 9:30 in the evening, defendant Martin and a friend, Roger Carl Acton, entered the U-Totem Market at 1605 W. 4th Avenue in Mesa after assuring themselves that no one was in the store except the attendant. Martin attracted the attention of the attendant, Edward McDaniels, while Acton sneaked up behind McDaniels and hit him on the back of the head with a hammer. McDaniels crumpled to the floor; the two men grabbed his wallet and the cash drawer out of the cash register and ran out of the store. They got into McDaniels' car, apparently with the intention of using it as a get-away car, but discovered that the key was not in the ignition. Acton ran back into the store to try to find the key but saw a customer driving up in front of the store, so turned and ran back to the car outside. The two men took the cash contained in the cash drawer and wallet--about $215. They left the empty cash drawer and wallet on the seat of McDaniels' car and took off running across a vacant field to where their car was parked. They headed toward Scottsdale and on the way stopped at a gas station and changed clothes. They then headed out of town and drove to California.

A criminal complaint was filed the next day, April 30, charging Martin and Acton with the offense of robbery. Thereafter, Martin and Acton were apprehended in San Diego. Two Mesa police officers traveled to San Diego and brought both men back to Mesa on May 2, 1962. Martin and Acton were tried jointly before a jury in July, 1962. Each was represented by counsel. The State called as witnesses several people who were at or near the U-Totem Market just before or just after the robbery and who had seen Martin and Acton. The State also called Edward McDaniels, the attendant on duty at the time, as well as the police officers who investigated the robbery. The defense presented no witnesses and neither Martin nor Acton took the stand. The jury returned a verdict finding Martin and Acton guilty of robbery, and they were thereafter sentenced. The issues raised by defendant Martin on appeal can be summarized as follows:

I. Taking Testimony at Hospital. Martin contends that it was prejudicial error for the trial court to transport the defendants, attorneys, jury, and court personnel to a hospital where testimony was taken of the U-Totem attendant, Edward McDaniels, who was still recovering from the injuries inflicted at the time of the robbery.

II. Assistance of Counsel. Defendant argues that he was denied his constitutional right to the effective assistance of counsel because he was not represented by counsel at the preliminary hearing.

III. Use of Co-defendant's Confession. Martin contends that it was error for the trial court to admit as evidence the incriminating confession of the co-defendant, Acton, where Acton did not take the stand at trial.

VI. Due Process and the Remand Hearing. Martin argues that he was denied due process of law when he was remanded for prosecution as an adult as the result of a hearing of which he had no notice and at which he was not present and was not represented by counsel.

V. Finding of Voluntariness. Defendant argues that the trial court failed to make an adequate preadmission finding that his confession was voluntary.

I. TAKING TESTIMONY AT HOSPITAL

Martin contends it was prejudicial error for the trial court to transport the defendants, attorneys, jury and court personnel to a hospital where testimony was taken of the U-Totem attendant, Edward McDaniels, who was still recovering from the injuries inflicted at the time of the robbery.

We find this contention by defendant Martin to be without merit. The purpose of allowing the jurors to view the evidence introduced is to enable them to comprehend more clearly that evidence. We have consistently held that it is within the trial court's discretion to allow the jurors, with proper precautions, to view the scene of the crime or to view an exhibit which, because of size or immobility, cannot be transported to the courtroom. State v. Prewitt, 104 Ariz. 326, 452 P.2d 500 (1969); State v. Smith, 62 Ariz. 145, 155 P.2d 622 (1945). See also Rule 265, Rules of Criminal Procedure, 17 A.R.S. It is the court's duty in so exercising its discretion to weigh the danger of prejudice against the probative value of the evidence. State v. Beers, 8 Ariz.App. 534, 448 P.2d 104 (1968).

In the instant case the evidence involved was the testimony of a witness rather than the viewing of an object or place; however, under the circumstances of this case the above principles nevertheless apply. During the course of the robbery, Edward McDaniels was hit on the top of the head with considerable force with a blunt instrument, resulting in serious injury. He had been in the hospital ever since the robbery and was still there at the time of trial. The State submitted to the trial court an affidavit from McDaniels' physician that McDaniels could not be transported to the courthouse to testify. The testimony of this witness was essential to the case. The trial court took all necessary precautions in transporting the jury and the others to the hospital and in conducting the proceedings while there, including having McDaniels moved to a special ward for the taking of testimony so as to minimize any possible prejudicial influences which might result from a hospital atmosphere.

In the instant case, the trial court acted within its sound discretion in granting the request of the State to take the testimony of the witness at the hospital. The probative value of the evidence far outweighed any possible danger of prejudice to the rights of the defendant. We, therefore hold that Martin's contention of prejudicial error is without merit.

II. ASSISTANCE OF COUNSEL

Defendant argues that he was denied his constitutional right to the effective assistance of counsel because he was not represented by counsel at the preliminary hearing. In support thereof he relies on Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), wherein the U.S. Supreme Court held that the preliminary hearing is a critical stage of a criminal prosecution and that an accused is, therefore, entitled to the effective assistance of counsel at such hearing. The instant case was tried in July, 1962, almost eight years before Coleman v. Alabama, supra, was handed down. We are, therefore, confronted with the question of what retroactive effect that decision has on defendant Martin's rights. This same issue was before us in State v. Riley, 106 Ariz. 318, 475 P.2d 932 (1970). In that opinion we reviewed the guidelines set forth in Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), for determining whether a decision is to be given retroactive application. In Johnson v. New Jersey, the U.S. Supreme Court applied the aforementioned guidelines to the Miranda and Escobedo decisions, and concluded that:

'(R)etroactive application of Escobedo and Miranda would seriously distrupt the administration of our criminal laws. It would require the retrial or release of numerous prisoners found guilty by trustworthy evidence in conformity with previously announced constitutional standards.

'In the light of these various considerations, we conclude that Escobedo and Miranda, like Mapp v. Ohio (367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081), supra, and Griffin v. California (380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106), supra, should not be applied retroactively. * * *' 384 U.S. 719 at 731--732, 86 S.Ct. 1772 at 1780, 16 L.Ed.2d 882 at 891.

In applying the principles set forth in Coleman and Johnson v. New Jersey to the issues raised in State v. Riley, we concluded that the holdings set forth in Coleman should not be applied retroactively.

From the above, we hold that Coleman v. Alabama has no application to the instant case. Even if it did, defendant Martin has made no showing as to how the failure to have counsel at his preliminary hearing prejudiced his cause in any way, and our review of the reporter's transcript of the preliminary hearing has revealed no such prejudice. We accordingly hold that the failure to have counsel at Martin's preliminary hearing in 1962 did not constitute a denial of his constitutional right to the effective assistance of counsel, and hence there was no reversible error.

III. USE OF CODEFENDANT'S CONFESSION

Martin contends that it was error for the trial court to admit into evidence the incriminating confession of his co-defendant, Acton, where Acton did not take the stand at the trial. As authority, Martin cites Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Therein, petitioner Bruton and a co-defendant, Evans, were tried jointly before a jury and were both convicted of armed postal robbery. During the trial a postal inspector testified that Evans had orally confessed to him that Evans and Bruton committed the robbery. The trial court instructed the jury that although Evans' confession was competent evidence against Evans it was inadmissible hearsay against Bruton and, therefore, had to be disregarded in determining Bruton's...