State v. Mileham
| Decision Date | 19 May 1966 |
| Docket Number | No. 1577,1577 |
| Citation | 100 Ariz. 402,415 P.2d 104 |
| Parties | STATE of Arizona, Appellee, v. Robert Eugene MILEHAM, Appellant. |
| Court | Arizona Supreme Court |
Darrell F. Smith, Atty. Gen., Gary Nelson, Asst. Atty. Gen., for appellee.
Allen L. Feinstein, Phoenix, for appellant.
Robert Eugene Mileham, hereinafter referred to as defendant, was charged, tried, and found guilty by a jury of the crime of robbery with a prior conviction, in violation of A.R.S. § 13--641 and A.R.S. § 13--643. He was sentenced to serve a term of not less than twenty-five nor more than forty years in the Arizona state prison. Defendant appeals from the verdict and judgment of conviction.
Defendant, during the early evening of Junes 21, 1964, entered the Silver Slipper Bar, 4610 East Van Buren, Phoenix, Arizona, where he entered into casual conversation with a barmaid, hereinafter designated as prosecutrix. Defendant remained in the bar the entire evening, and shortly before 1:00 a.m. on the morning of June 22, 1964, defendant asked prosecutrix, the mother of five children, to assist him in placing a telephone call. Defendant and prosecutrix proceeded to a hallway at the back of the bar where a telephone and restrooms were located.
Prosecutrix testified that defendant displayed a gun at this time, and demanded that she return to the barroom and place two six-packs of beer and bills from the cash register in a paper sack; that she did as he demanded, and, at defendant's insistence, she accompanied him out of the bar and entered his car, parked nearby.
Defendant informed prosecutrix they were going to Payson, Arizona, and, after some difficulty locating the correct route, proceeded in that direction. During the course of the trip defendant pulled off the highway twice, and, on both occasions, according to testimony of prosecutrix, had intercourse with her, which she testified she submitted to through fear for her life.
Upon arrival in Payson prosecutrix was able to escape from defendant, and inform the police of what had occurred. Defendant was taken into custody by police shortly thereafter. Defendant was charged by information with two counts of rape, one count of robbery, and one count of kidnapping with intent to commit rape; all with a prior conviction. Defendant admitted the prior conviction. The trial court declared a mistrial on the two counts of rape and the count of kidnapping with intent to commit rape, when the jury was unable to arrive at a verdict on these three counts.
This appeal raises two questions for review by this court. Defendant first contends the 'trial court erred in admitting over objection evidence of a confession or statement made by defendant without first determining that it was voluntary.'
Detective Sergeant John Fields of the Phoenix Police Department was dispatched to Payson, Arizona, after making an investigation of an alleged theft at the Silver Slipper Bar on June 22, 1964. Detective Fields obtained custody of the defendant at the Payson jail, and placed him in a police vehicle to be transported to Phoenix. Fields testified that he and defendant conversed during this trip concerning the alleged charges. The following testimony on direct examination of Detective Fields by the state led to a hearing held outside the presence of the jury:
'Q I see. At the time that this conversation was made, did you offer any promises or guarantees of immunity to Mr. Mileham in order to induce him to make a statement to you?
'A No.
'Q Did you make any threats or place any duress upon Mr. Mileham at that time to induce him to make any statements to you?
'A No.
'Q Did you inform Mr. Mileham of his right not to speak to you at all?
'A I did.
'Q After having done these things, then did Mr. Mileham have a--make a statement to you concerning the cause now on question before this court?
'A Yes.
'Q Would you tell the Court and jury what was said by you, to him, if anything, and what was said by him to you, if anything?
'A Yes.
'Q What did he say?
'A Beg pardon?
'Q What did he say, what did Mr. Mileham say?
'A I said other things with that, in other words, he didn't answer that particular way to that portion of your question or statement.
'Q In other words, you said anything he would say would be used against him?
'A Partially, yes.
'Q Did you tell him the nature of what you were going to question him about?
'A Yes.
'Q Did you tell him he didn't have to say anything?
'A Yes.
'Q He said nothing about counsel, is that right?
'A Not at that time.
The following statements were made by the court during this hearing:
'THE COURT: If you desire further examination of this witness in the presence of the jury in order that they may determine whether or not this is a voluntary statement, an issue which is to be submitted to them, I am very happy to permit you to do so.
'* * * If you want to offer evidece, affirmative evidence that these things were not done, then the Court may have some basis upon which to rule. * * *
'* * * The question as to foundation in reference to each particular statement which has been made; but at this time, unless you have some affirmative testimony to offer which would rebut that of Officer Fields, I will overrule your objection.'
At the close of the hearing the following occurred:
It is upon the basis of the above colloquy that defendant now claims error by the trial court in failing to make a determination of the voluntariness of any statements made by defendant to Detective Fields.
The state contends the trial court in fact made a determination that the confession of defendant was voluntary. We cannot agree with this position. In State v. Goodyear, 98 Ariz. 304, 404 P.2d 397, rev'd on rehearing, 100 Ariz. 244, 413 P.2d 566 (filed April 22, 1966), we specifically held on rehearing that a 'definite determination as to voluntariness is necessary,' and, quoting from State v. Costello, 97 Ariz. 220, 399 P.2d 119, that such a determination must be made at 'the conclusion of the hearing on voluntariness.' There is nothing in the transcript of the hearing held out of the presence of the jury to indicate that the trial court made such a 'definite determination as to voluntariness.'
The state contends that 'if the court should find that no effective determination was made by the court as to the voluntariness of the statements, the cause should be remanded solely for the purpose of holding such a hearing.' We have recognized two separate and distinct procedures which may be followed in situations such as that presented in the instant case. The first is to remand the case for a new trial. State v. Goodyear, supra; State v. Ortiz, 97 Ariz. 228, 399 P.2d 171; State v. Costello, supra; State v. Owen, 96 Ariz. 274, 394 P.2d 206.
The second is to remand to the trial court for a limited hearing to determine whether the statements or confessions were voluntary. State v. Tannahill, 100 Ariz. 59, 411 P.2d 166; State v. Simoneau, 98 Ariz. 2, 401 P.2d 404. In State v. Simoneau, supra, we said:
'* * * Each case must stand on its own facts as to whether it should be remanded to the trial judge for a limited hearing to determine whether a confession is voluntary or whether a new trial should be granted.' 98 Ariz. at 7, 401 P.2d at 408.
In both Simoneau and Tannahill, supra, we held that where the trial court conducted a hearing on voluntariness but failed to specifically rule the statements voluntary the matter must be remanded to the trial court for a hearing to determine this question. It is our opinion that the nature of this case, and the fact that a hearing was held out of the presence of the jury, make applicable the procedure laid out in State v. Tannahill and State v. Simoneau, supra.
Counsel for defendant argues that we should remand the case for a new trial rather than a hearing on voluntariness because the distinguished trial judge presently sits on our Court of Appeals, and it would be inappropriate for him to rule on this matter. We find this argument without merit. We are not remanding this case for a ruling by the trial judge who conducted the trial but rather to the Maricopa County Superior Court for a hearing and a ruling to be made at the conclusion thereof. State v. Tannahill, supra; State v. Simoneau, supra. This does not require...
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State v. Arnett
...be basically up to the jury to determine the facts . . . on the basis of the evidence which has been presented."); State v. Mileham, 100 Ariz. 402, 415 P.2d 104 (1966) ("The objection is overruled."); State v. Dodd, 101 Ariz. 234, 418 P.2d 571 (1966) (The confession is "prima facie voluntar......
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State v. Wright
...Court of Arizona may wish to consider before we remand the case to the trial court for determination of voluntariness, State v. Mileham, 100 Ariz. 402, 415 P.2d 104 (1966), we have decided to consider the other matters raised by the definite determination whether the purported confession wa......
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Kirk v. State
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