State v. Morse

• Decision Date: 18 September 1980
• Docket Number: No. 4950-PR,4950-PR
• Citation: State v. Morse, 127 Ariz. 25, 617 P.2d 1141 (Ariz. 1980)
• Parties: STATE of Arizona, Appellee, v. James Edward MORSE II, Appellant.
• Court: Arizona Supreme Court

Page 1141

617 P.2d 1141

127 Ariz. 25

STATE of Arizona, Appellee, v. James Edward MORSE II, Appellant.

No. 4950-PR.

Supreme Court of Arizona, In Banc.

Sept. 18, 1980.

Robert K. Corbin, Atty. Gen., William J. Schafer, III, Chief Counsel, Criminal Division, Gerald R. Grant, Asst. Atty. Gen., Phoenix, for appellee.

Donald S. Klein, James W. Stuehringer, Schotland & Stuehringer, Tucson, for appellant.

GORDON, Justice:

Defendant James Edward Morse II was convicted by a jury of theft of a motorcycle, found by the trial judge to have had a prior felony conviction, and sentenced to four years in the Arizona State Prison.

On appeal to the Court of Appeals, defendant raised six issues for review: (1) statements made by defendant to an investigatory officer before defendant was given Miranda warnings were improperly admitted into evidence, (2) the court's refusal to instruct the jury to disregard such statements denied defendant due process, (3) the court erred by instructing the jury that ignorance of the law is no defense, (4) the court's instruction on presumption of innocence was insufficient, (5) the prosecutor's policy of refusing to dismiss allegations of prior convictions once trial had started was unconstitutional, and (6) the court's requirement that defendant be present at his trial on the allegation of a prior felony conviction denied defendant due process.

The Court of Appeals affirmed defendant's conviction and sentence and denied his motion for rehearing. We accepted defendant's petition for review, taking jurisdiction pursuant to A.R.S. § 12-120.24 and Rule 31.19, Rules of Criminal Procedure, 17 A.R.S. We affirm the judgment and sentence of the Superior Court. The opinion of the Court of Appeals, 127 Ariz. 38, 617 P.2d 1154 (1980), is vacated.

The facts relevant to our decision are these: On January 12, 1979, a Tucson police officer patrolling the east side of Tucson was flagged down by a citizen who directed his attention to defendant and two other men sitting on motorcycles in a local shopping center parking lot. The citizen indicated that he believed the motorcycle on which defendant was seated had been stolen from him the week before. The police officer approached the three men and asked them for identification. Defendant was unable to produce either his driver's license or a registration for the motorcycle on which he was seated, a 1978 Yamaha, but identified himself as James Morse. A registration check on the motorcycle's license plate revealed that the plate had been issued to a Mr. Gidley for a '71 Honda. After the officer noticed that the vehicle identification number on the gooseneck of the bike appeared to have been ground off, he ran a registration check on the vehicle identification number found on the engine, which revealed that the bike belonged to a Mr. Manes and that there was no report of it having been stolen.

The officer asked defendant if the motorcycle belonged to him, to which defendant responded that it did. The officer then asked defendant where he got the bike, to which defendant responded that he had bought it from a friend of one of the two men sitting with him. After defendant's companion denied any knowledge about such a purchase, the officer repeated his questions regarding defendant's acquisition of the bike. Upon receiving the same answers, he arrested defendant and administered the Miranda warnings. Defendant then stated that he had lied about purchasing the bike and claimed that he had found it in a desert area near his house. All of these statements were admitted into evidence over defendant's objection at his trial. He asserts in his appeal that the statements in question should have been excluded because they were made in response to police interrogation before he was given his Miranda warnings.

The Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself." U.S.Const. Amend. V. Finding the compulsion to incriminate one's self to be "inherent in custodial surroundings," the Supreme Court in Miranda prescribed certain procedural safeguards-the giving of Miranda warnings-to prevent such compelled self-incrimination during "custodial interrogation." Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Court has defined custodial interrogation as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706.

Defendant here claims that he made the statements in question at a time when he had been "deprived of his freedom" in a "significant way." The United States Supreme Court has recently explained that only where a restriction on a person's freedom has been such as to render him "in custody" are Miranda warnings required. Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). Whether a suspect is "in custody" is determined by an objective test: Would a reasonable man feel that he was deprived of his freedom in a significant way? State v. Hatton, 116 Ariz. 142, 568 P.2d 1040 (1977); cf. Lowe v. United States, 407 F.2d 1391 (9th Cir. 1969); State v. Mumbaugh, 107 Ariz. 589, 491 P.2d 443 (1971). The interrogation in this case occurred in a shopping center parking lot around 12:00 noon and appears from the record to have occurred within a fairly short time period. The questioning was investigatory, in response to a citizen's complaint that the suspect was in possession of a stolen vehicle, for the purpose of determining whether the suspect might have committed a crime. One policeman and three civilians were present during the interrogation. The officer neither told the suspect that he was under arrest nor indicated that he was not free to go. There was no use nor display of force. All of the above factors militate in favor of the position that defendant was not "in custody" when he made the statement in question.

Further, the interrogation here was not the type with which the Miranda court was concerned. The evil to which the Supreme Court addressed itself was "incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights." 384 U.S. at 445, 86 S.Ct. at 1612, 16 L.Ed.2d at 707. The Court explicitly excluded general on-the-scene questioning for the purpose of investigating crime from its definition of "custodial interrogation." 384 U.S. at 477-78, 86 S.Ct. at 1629-30, 16 L.Ed.2d at 725-26. Because we feel the officer's questions in the case before us fall into the category of on-the-scene questioning and not custodial interrogation, we find that Miranda warnings were not necessary, and that the statements made by defendant in response to these questions were properly admitted by the trial court.

Defendant emphasizes that at the time the statements were made, the investigation had focused on the defendant, the officer had probable cause to arrest defendant for driving a motor vehicle without a driver's license or registration, and the officer felt that defendant was not free to go. The United States Supreme Court has rejected the argument " 'that the principle of Miranda * * * should be extended to cover interrogation in non-custodial circumstances after a police investigation has focused on the suspect.' " Beckwith v. United States, 425 U.S. 341, 345, 96 S.Ct. 1612, 1615, 48 L.Ed.2d 1, 6-7 (1976). Is is not the focus of the interrogation but the custody of the suspect which triggers the requirement of Miranda warnings. Beckwith, supra. Similarly, although Arizona courts have recognized that the time of formal arrest is an inadequate guideline as to when Miranda warnings must be given, see State v. Tellez, 6 Ariz.App. 251, 431 P.2d 691 (1967), existence of probable cause to arrest for a crime does not in and of itself require their administration. State v. Kennedy, 116 Ariz. 566, 570 P.2d 508 (App.1977). Rather "(c)ustody is the crucial issue in determining whether such warning is necessary." Id. at 569, 570 P.2d at 511; see State v. Landrum, 112 Ariz. 555, 544 P.2d 664 (1976). The presence of probable cause to arrest defendant here for driving a motor vehicle without a driver's license or vehicle registration did not evoke the necessity of advising defendant of his constitutional rights.

The officer's testimony that the suspect was not free to go during the interrogation adds nothing to defendant's position. The unexpressed intent of a police officer to detain a suspect whom he is interrogating does not constitute "custodial interrogation." United States v. Smith, 441 F.2d 539 (9th Cir. 1971); Lowe v. United States, 407 F.2d 1391 (9th Cir. 1969); State v. Kennedy, 116 Ariz. 566, 570 P.2d 508 (App.1977). But see State v. Mayes, 110 Ariz. 318, 518 P.2d 568 (1974). Defendant offered no evidence at the hearing on the motion to suppress or at trial that the officer communicated in any way his intention to detain defendant.

Defendant requested the trial court to instruct the jury that any statement which the defendant made while in custody before he was given Miranda warnings should be considered involuntary. He now urges that the court's refusal to give such an instruction was error.

Defendant's requested instruction is based on an incorrect legal assumption. The necessity of giving Miranda warnings to a suspect relates not to the voluntariness of a confession but to its admissibility. State v. Stone, 122 Ariz. 304, 594 P.2d 558 (App.1979). Generally, "(t)he admissibility of a given piece of evidence is for the judge to determine." 9 J. Wigmore, Evidence § 2550 (3d ed. 1940). Although the Arizona rule is that the trial court must, upon defendant's request, instruct the jury on voluntariness of defendant's statements, State v. Cobb, 115 Ariz. 484, 566 P.2d 285 (1977), the question of admissibility of...