State v. Michael

• Decision Date: 01 February 1968
• Docket Number: No. 1683,1683
• Citation: 103 Ariz. 46,436 P.2d 595
• Parties: STATE of Arizona, Appellee, v. Edward Lee MICHAEL, Jr., Appellant.
• Court: Arizona Supreme Court

Page 595

436 P.2d 595

103 Ariz. 46

STATE of Arizona, Appellee, v. Edward Lee MICHAEL, Jr., Appellant.

No. 1683.

Supreme Court of Arizona, In Banc.

Feb. 1, 1968.

Darrell F. Smith, Atty. Gen., Gary K. Nelson, Asst. Atty. Gen., for appellee.

Walter F. Kessler, Phoenix, for appellant.

McFARLAND, Chief Justice:

Appellant Edward L. Michael, Jr., hereinafter called defendant, was informed against for the crime of murder of an undesignated degree, tried by a jury and convicted of murder of the second degree. The Superior Court of Maricopa County sentenced defendant to the Arizona State Prison for a term of not less than ten years nor more than life. From that conviction and sentence defendant appeals to this Court.

Shortly after midnight on July 6, 1965, the deceased, Florence Michael who was the wife of defendant, was shot to death through the left cheek by a .22 caliber bullet in the bedroom of the Michaels' home in Scottsdale. Defendant had returned to the bedroom for the night about one-half hour before decedent was shot, and at the time of the shooting defendant and the deceased were alone in the bedroom. Four other persons were in the house at the time, including defendant's grandmother, father, and two teenage sons. Defendant's father testified that he saw the deceased alive in the house some four minutes before the shooting. During the course of events following the shooting, defendant, on separate occasions stated to two police officers that he had shot his wife. However, at the trial he denied making the statements, and claimed a complete lack of knowledge as to how the shooting took place. Defendant also admitted placing the .22 pistol, along with another pistol, under the bed sometime before the shooting occurred.

Defendant and his wife had had marital troubles in the past. She had recently returned to the family home in Scottsdale from an extended stay in Louisiana where she had been with the two sons for the past year teaching.

Defendant contends that the trial court erred in denying his motion to quash the information on the grounds that the court did not have jurisdiction over the action for the reason he had not been indicted by a grand jury. Defendant argues that the Fifth Amendment to the Constitution of the United States requiring an indictment by a grand jury before a person can be held to answer for a capital crime applies to the States through the Fourteenth Amendment due-process clause of the Federal Constitution.

A prosecution of a capital crime by information pursuant to the Arizona Constitution, Article II, Section 30, A.R.S., satisfies the due-process requirement of the Federal Constitution, and the specific portion of the Fifth Amendment of the Federal Constitution requiring prosecution of capital crimes by indictment by a grand jury is not applicable to the State. State v. Foggy, 101 Ariz. 459, 420 P.2d 934; State v. Berry, 101 Ariz. 310, 420 P.2d 337; State v. McClendon, 101 Ariz. 285, 419 P.2d 69; Fertig v. State, 14 Ariz. 540, 133 P. 99. See also: Hurtado v. People of State of California, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232.

Defendant contends the trial court erred in permitting Police Officer Thomas Star and Police Sergeant David William Townsend to testify in regard to oral statements of defendant for the reason that defendant had not been previously advised of his constitutional rights. Defendant argues that these statements were admitted in violation of the applicable principles in both Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

The instant case was tried November 1, 1965, after Escobedo, supra, and before Miranda, supra. In Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, the United States Supreme Court held that the Miranda decision was not to be applied retroactively to trials begun before the Miranda decision; hence the instant case is governed only by Escobedo v. State of Illinois, supra.

The first oral admission which defendant contends was erroneously admitted was testified to by Star. Upon reaching defendant's home, Officer Star was immediately met at his patrol car by defendant's father. The officer asked the father, 'What happened?' The father said, 'My son just shot his wife. I think she is dead.' The father and officer then proceeded to the bedroom where the officer saw the deceased, who was obviously wounded, slumped in the chair with blood around the bullet hole in her face. At this time the officer also saw defendant lying on the bed. As the ambulance attendants were moving the deceased's body from the room defendant started to follow them. The officer testified that he took hold of defendant's forearm in an effort to detain him momentarily to ask him a question. When defendant stopped walking, Star released him and asked him, 'Where is the gun?' Defendant then stated, 'I shot my wife. Is she dead? Please help her.' No other persons overheard this particular exchange.

Star admitted that he did not advise defendant of his right to counsel, nor of his right to be silent, nor of his right to know that anything he might say could be used against him before defendant made the above admission. Defendant contends that his constitutionally-guaranteed rights were denied him for the reason that the accusatory stage had been reached under the circumstances within the meaning of Escobedo v. State of Illinois, supra. We agree with the contention.

In State v. Intogna, 101 Ariz. 275, 419 P.2d 59, which, like the instant case, was governed by Escobedo, supra, an officer who was only a block away arrived on the scene shortly after the shooting. He testified that he had reason to believe defendant was in the house, saying

'When I got to the back door of the house itself I opened the door and the Defendant was immediately inside the door. * * * I asked him why he shot, 'Why did you shoot him?' and he stated, 'Because he was threatening me.' And then * * *'

He further testified that he had his gun out at the time. In holding the statement to be inadmissible, we said:

"We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied 'the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as 'made obligatory upon the States by the Fourteenth Amendment,' Gideon v. Wainwright, wright, 372 U.S. 335, at 342, 83 S.Ct. 792, at 795, 9 L.Ed.2d 799, and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.' 378 U.S. at 490, 84 S.Ct. at 1765. * * *

'It is not contended in the instant case that defendant was advised of his rights. The basis of the court's ruling was that the investigation had not reached the accusatory stage. The case at bar was tried before Miranda and the lower court did not have the benefit of this amplification of the meaning of Escobedo. In determining whether the case had passed to the accusatory stage, we must apply the rule in Escobedo, as construed and explained in Miranda. While defendant was not actually arrested when the question was asked as to why he shot deceased, it will be noted from the testimony that Officer Wright had his gun drawn and was within three feet of defendant when he asked the question.

'In Miranda the court said that what was meant by custodial interrogation was questioning initiated by law enforcement officers after a person has been taken into custody. However, the court added: '* * * Or otherwise deprived of his freedom in any significant way * * *' (Emphasis supplied) Certainly a defendant questioned by an officer with a drawn gun within three feet of him was deprived of his freedom in a significant way. Clearly, the officer had no intention of letting defendant escape and defendant himself could not have reached any other conclusion.

'The officer had stated he went into the house because he believed defendant was there. According to defendant's testimony, he told the officer: '* * * I am the man you are looking for.' Then Officer Wright, with his gun drawn, asked the question why he shot Bolen. We are unable to say from these facts that the statement made by defendant was voluntary. It will be noted that while Officer Wright stated he 'grabbed' him after the question was answered, the 'grabbing' of his could hardly be construed as depriving him of his freedom any more than standing within three feet of him with a drawn gun while questioning him.'

In State v. Saunders, 102 Ariz. 565, 435 P.2d 39 (November 29, 1967), we said:

'Officer Scully's action in placing his hand on the defendant's arm and leading him outside to the patrol car, under these circumstances was such an infringement of the defendant's 'freedom of action' that it required that the officer fully advise the defendant of his constitutional rights under Miranda before any questions could be asked. Consequently, the trial court's failure to exclude the defendant's inculpatory statement was prejudicial error.'

The facts in the instant case show that the officer had been informed by defendant's father just before he entered the house that defendant had shot the deceased. Defendant had started to follow the body as it was being removed from the room, but Star took hold of his arm, stopped him and asked, 'Where is the gun?' In effect, this was telling defendant that he (defendant) had knowledge of where the gun was that had been used in killing the deceased, which was asking defe...