State v. McFall

• Decision Date: 02 June 1967
• Docket Number: CA-CR,No. 2,2
• Citation: 5 Ariz.App. 539,428 P.2d 1013
• Parties: The STATE of Arizona, Appellee, v. Richard McFALL, Appellant. 74.
• Court: Arizona Court of Appeals

Page 1013

428 P.2d 1013

5 Ariz.App. 539

The STATE of Arizona, Appellee, v. Richard McFALL, Appellant.

No. 2 CA-CR 74.

Court of Appeals of Arizona.

June 2, 1967.

Rehearing Denied June 30, 1967.

Review Granted Sept. 26, 1967.

Darrell F. Smith, Atty. Gen., Gary K. Nelson, Asst. Atty. Gen., Phoenix, William J. Schafer, III, County Atty., Pima County, Tucson, for appellee.

Garven W. Videen, Tucson, for appellant.

MOLLOY, Judge.

Richard McFall brings this appeal seeking reversal of his conviction of five counts of obtaining narcotics by fraud or deceit in violation of A.R.S. § 36--1017. The defendant, among his several contentions, raises serious constitutional problems in the area of voluntary confessions and the extent of judicial inquiry mandated to determine the voluntariness of a confession made by a drug addict to the police.

There is surprisingly little disparity in the record as to the '* * * external, 'phenomenological' occurrences and events surrounding the confession.' ¹ The testimony of the two police officers who arrested and interrogated the accused and the testimony of the accused himself, who testified before the court in the absence of the jury on the voluntariness issue (but who did not take the stand in his own defense before the jury), overlaps with little conflict.

The arrest of the defendant occurred on December 14, 1965. The two police detectives, Grant and Hitchcock, were searching for the defendant at the time, having received information from two druggists that forged prescriptions had been passed by the defendant. The detectives had the license number of the defendant's car which they sighted on a side street in the City of Tucson, Arizona, at 11:25 a.m. The police officers were in an unmarked car and were not in uniform. They drove up beside the defendant's car and told him that his left rear tire was going flat. The defendant pulled partially over to the side of the road, slowing his car in the process. Whereupon Detective Grant drew his gun, showed his badge and informed the defendant he was under arrest. The defendant stopped his car and as Detective Grant approached, the defendant stated, 'you got me.' He handed the officer some white pills, later analyzed as containing dilaudid, and a 'narcotics kit' (consisting of a syringe, needle, cotton, a vial of water and a spoon), both of which he pulled from his pockets. The defendant was taken to the police vehicle, and as they got into the car, defendant was advised of his right to remain silent and of his '* * * right to an attorney.' Defendant stated he understood these rights. According to the officers, there was never a threat of punishment nor an offer of reward made to the defendant by them or anyone in their presence--'none whatsoever'--in connection with their dealings with the defendant on the occasions in question.

At the time of his arrest, the defendant informed the officers that he was '* * * pretty strung out, that he had a heavy habit.' In the police vehicle, the defendant stated he had forged prescriptions under the name of a 'Rita Valli,' eight or ten times at numerous drugstores in Tucson to obtain dilaudid, that there was no such person as Rita Valli, and that a prescription pad which he had used was in the trunk of his car. A detective removed a blank prescription pad of a local hospital from the trunk of the defendant's car.

A conflict in the testimony occurs in regard to whether the accused requested 'a shot' of dilaudid pills from the officers after his arrest. The defendant testified that at the scene of the arrest he notified the officers he needed to use some of the tablets. The officers testified they could recall no such request but that it was 'possible' it was made. The defendant testified that wnen they arrived at the police station, he requested for a second time some of the tablets of dilaudid and '* * * they told me that that matter would be discussed after we had taken care of the business at hand, going through the search and their asking questions of me.' At the police station, the defendant was requested to fill out one of the prescription blanks with a prescription similar to those which the defendant had previously forged, and the defendant complied with the request. This prescription was admitted in evidence during the trial as Exhibit 1, and is strikingly similar to several prescriptions established to be forgeries and admitted in evidence. Other than this damaging admission, there was no other evidence introduced during the trial of any admissions or confessions made by the defendant at the police station, the officers confining themselves to what the defendant said to them at the scene of the arrest.

In connection with the sample prescription given at the police station, the following testimony was elicited from the defendant by his attorney:

'Q (by defendant's counsel) You believed when you filled out the form and your conversation at the detective headquarters that you were going to receive the benefit of getting to use the drugs?

'A I believed that I could and certainly I will say that, and also I had to say that no one said I would to me. There was an intimation that I would.

'Q By their actions?

'A Well, for one thing, the reference 'We will talk about that after we take care of this business at hand."

On cross-examination the following came in evedence:

'Q Now, this hope that you had, do you feel that the officer deliberately induced that hope or was it your own desire for a shot that created that hope in your own mind?

'A I would say moreso my own desire. I might be reading something, speaking truthfully, something into there that wasn't there.'

The defendant is 47 years of age and according to his own testimony had been arrested previously 'innumerable' times. He testified that after the interrogation, while he was being taken to jail, he again asked for some tablets and told the officer he was becoming sick. The officer who took the defendant to jail does not recall such a request, but does recall he saw the defendant in the evening on the day of the arrest and at that time the defendant complained of pains in his stomach and of going 'into withdrawals.' Subsequently, either that night or the next morning, the defendant was hospitalized because of his withdrawal symptoms and was committed under a mental health type of hearing to a hospital for about ten days. At the hospital he received a 'shot' to alleviate his symptoms.

The total length of time elapsing between the arrest of the defendant and his being taken to a jail cell after his interrogation is not pinpointed in the record. However, the entire tenor of the testimony is that this procedure took place without any delay and there was no attempt by the defendant at any time to deny his guilt or to avoid co-operating with the police to ascertain the facts pertaining to the forged prescriptions. The defendant's memory of what took place at the scene of the arrest was demonstrated by his testimony to be clear. His testimony agreed, even as to details (i.e., that the officers stopped him by informing him his tire was going flat and that he thanked the officers for so doing), with that of the police officers, with the exception only of his testimony as to requesting dilaudid pills. There is no testimony that the defendant was suffering withdrawal symptoms until after all admissions and/or confessions admitted in evidence had already been made.

On the basis of the testimony heard, the trial court ruled the admissions and confessions made by the defendant to be voluntary, and permitted the testimony to go to the jury subject to the jury's determination of the voluntariness of the statements made.

This case was tried on March 1, 1966, so it is controlled by the decision of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), but not by the decision of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), as determined by the decision of Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 1882, 16 L.Ed.2d 882 (1966).

Our constitutional law pertaining to the admission in evidence in criminal trials, both state and federal, of admissions and comfessions of the accused had been in seething metamorphosis for many years. See Developments--Confessions, 79 Harv.L.Rev., pp. 935--1119 (March 1966).

Many decisions in this area have indicated that perhaps the Court's primary concern in rendering these decisions is to weigh the public policy in favor of permitting a full judicial inquiry into allegedly criminal activity against an abhorrence of forceful and overbearing police methods, which degrade the entire law-enforcement process. The Court has indicated many times that this weighing of policies would be done on a totality-of-circumstances basis, and that the objective circumstances surrounding a confession would outweigh a trial judge's determination as to the subjective state of the accused's mind at the time of the making of a confession. Among the cases making these points are: Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513, 520--521 (1963); Blackburn v. State of Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960); Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959); and, Fikes v. State of Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246, 251 (1957).

Absence of trickery, cajolery, extended interrogation, overbearing conduct, incommunicado questioning, refusal to permit counsel, and/or any of the other conduct condemned in the myriad ² of United States Supreme Court decisions in this area prompts us to believe that the confessions and admissions in this case were properly admitted to be weighed by the jury in its quest for the truth.

As previously pointed out, the instant decision is not controlled by Miranda. As we view the uncontested evidence, the procedure here followed satisfies...