State v. Mumbaugh

• Decision Date: 09 December 1971
• Docket Number: No. 1845,1845
• Citation: 107 Ariz. 589,491 P.2d 443
• Parties: STATE of Arizona, Appellee, v. David R. MUMBAUGH, Appellant.
• Court: Arizona Supreme Court

Page 443

491 P.2d 443

107 Ariz. 589

STATE of Arizona, Appellee, v. David R. MUMBAUGH, Appellant.

No. 1845.

Supreme Court of Arizona, In Banc.

Dec. 9, 1971.

Dushoff, Sacks & Corcoran by Robert J. Corcoran and Jay Dushoff, Phoenix, for appellant

Gary K. Nelson, Atty. Gen. by Carl Waag, Former Asst. Atty. Gen., William P. Dixon, Asst. Atty. Gen., Phoenix, for appellee.

UDALL, Justice:

This is an appeal by the defendant, David R. Mumbaugh, from a conviction of first degree murder. He was sentenced to life imprisonment in the Arizona State Prison.

On September 30, 1966, the defendant was charged with the first degree murder of Laura Bernstein. Defendant pleaded 'not guilty' to the charge and a Motion to Suppress the confession and other tangible evidence was made an a hearing was held on this Motion and denied. Defendant waived trial by jury and the cause was presented to the Honorable George M. Sterling, late Judge of the Superior Court.

Although the defendant lists six questions for this Court to consider, basically they all revolve around one issue: Whether the defendant was timely and properly given his Miranda warnings as required by the Unted States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). If they were not, then the confession must be suppressed along with the 'fruits' of that confession.

Since the facts are extremely important in deciding this question, we will set them out in detail as follows: Laura L. Bernstein was the victim of a homicide at or about 7:30 p.m. on September 21, 1966; death resulted from multiple stab wounds. Within minutes, defendant reported to the Tempe Police Department that he had found the body of a dead girl and directed them to the scene of the crime, the veranda of the Casa Loma Hotel located at Mill Avenue and 4th Street in Tempe. Defendant at this time explained to the police how he found the body and this explanation was to become the basis of subsequent inconsistencies in his story. These inconsistencies are heavily relied upon by the defense and will be dealt with later.

The following day Det. Schoenfeld of the Tempe Police went to defendant's home to gather information. He inquired into defendant's activities around the time he found the body. On Saturday, September 24, Det. Schoenfeld again visited defendant at his home. From this interview he determined that immediately after defendant had found the body of Miss Bernstein, he went across the street to an apartment and told two men, Messrs. Bennett and Toth, what he had found. All three men then ran outside and defendant proceeded by himself to the police station. That same afternoon, Lt. Hill asked defendant to come down to the police station, which he did. They went to the scene of the crime, and the defendant re-enacted his version of how he had come upon the body, where he had come from and exactly what he saw upon arrival. Since there were fingerprints on the flashlight and footprints on the ground near the body, the police asked defendant if he would consent to be fingerprinted and to bring in his shoes to see if the prints were his in order to facilitate the investigation. Defendant complied. That same night, Det. Schoenfeld went to defendant's home and secured the clothing which defendant claimed he wore on the night of the homicide.

At or about this time the police became aware of small inconsistencies in defendant's story. Since defendant relies upon them we have set them out:

1. Defendant on the night of the murder told police he was coming From Dana Bros. Later he said he was going To Dana Bros.

2. Defendant told police the flashlight near the body was burning when he discovered the body. The police upon arrival at the scene found the flashlight in the 'on' position but not burning.

3. Defendant reported leaving a 'fiend' with the body when he arrived at the police station yet the two men defendant sought help from had never met him before.

4. Defendant's shoes had blood stains on them yet defendant did not remember stumbling into the body as he came upon it.

5. Defendant said there was a second flashlight at the scene of the murder but it was never found.

On September 25th, defendant came to the Police Station inquiring into any new 1. Defendant said he wore a white shirt the night of the murder but Officer Carpenter reported defendant wearing a plaid shirt.

developments in the case. Lt. Hill used this opportunity to try to clarify these inconsistencies. Finally, on September 29th Det. Schoenfeld called defendant and asked him to come down to the station house. At this time the police were aware of other inconsistencies which had arisen:

2. Defendant said he told Messrs. Bennett and Toth that he had found a girl he 'thought was dead.' This conflicted with a statement by Mr. Toth that defendant said, 'A girl has been murdered.'

3. Defendant claimed the blood on his shoes resulted from a bruise he incurred from falling on the way to the police station. No such bruise was observed.

Defendant agreed to come and arrived at 8:05 p.m. and related his story in detail to the police officers. According to the police-report, at about 8:56 p.m. Lt. Hill for the first time notified defendant that they were aware of the inconsistencies in his story and that before they asked him any specific questions concerning these inconsistencies they would give him his Miranda rights. Defendant admits making the confession which followed but contends that his rights were not given until immediately after he confessed. The police report indicated, and the officers testified, that defendant read the sheet, told police he knew of these rights and then signed a waiver. The police then enumerated the inconsistencies they were aware of. Defendant at first changed his story to meet these and then finally:

'Hill:

Now David, now is the time when you are going to have to stand on your own two feet and straighten up your own problems. It's going to be up to you. Nobody else is going to straighten up your problems for you.'

* * *

* * *

'(He then sat very still for several seconds and stated,) 'I did it. I was going to Dana Bros., she started to scream. I said what's the matter. She said get away.' (Mumbaugh paused for several seconds and stated,) 'Then I hit her and when she turned I stabbed her. Then I ran until I got my senses."

* * *

* * *

'Mumbaugh:

. . . I came up and the flashlight came on and that's when I saw her. I came up and she started to scream. I said what's the matter and I hit her. When I did she turned. I didn't hit her very hard, in the arm I think.'

'Hill:

What hand did you hit her with?'

'Mumbaugh:

I hit her with my left hand. I hit her only once. I pulled the knife out with the same hand.'

'Douglas:

How did you get your knife out so fast?'

'Mumbaugh:

I carried it in a special way in my back pocket, above my handkerchief.'

'Hill:

'How many times did you stab her?'

'Mumbaugh:

I don't know. I stabbed her and I stabbed her. I don't know how many times. (At this point Mumbaugh was having some difficulty with his words as he was sobbing at times while talking.).'

'Hill:

Have you ever attacked anyone before?'

'Mumbaugh:

No. If I did they would be dead. I know judo and karate. I took lessons.'

'Hill:

David, how did you get blood on your shoe?'

'Mumbaugh:

My feet might have hit her.'

'Douglas:

How?'

'Mumbaugh:

I kicked her once or twice to make sure she was dead.'

'Hill:

Where?'

'Mumbaugh:

In the head, of course.'

'Douglas:

Did you stab her in the head?'

'Mumbaugh:

I don't think so.'

'Douglas:

Where did you stab her?'

'Mumbaugh:

I thought twice in the back and twice in the chest . . .'

'Hill:

David, what did you do with the knife?'

The defendant then proceeded to tell the police that he had thrown the murder weapon into a canal near 48th Avenue. A subsequent search uncovered the murder weapon. He also told police that the shirt he wore the night of the murder was in the waste paper basket in his room. A subsequent search consented to by defendant's father uncovered the shirt. Defendant later made a second confession when his parents arrived at the police station:

'David:

I did it.'

'Mrs. Mumbaugh:

Why?'

'David:

I don't know.'

'Mrs. Mumbaugh:

How?'

'David:

With my switchblade. . . .'

* * *

* * *

'Mr. Mumbaugh then approached his son and stated:

'Son, do you know what you're saying?"

'David:

Yes I do. Ever since the 8th grade I've wanted to kill somebody. (At this point Lt. Hill read the above mentioned rights to Mr. Mumbaugh and showed him his son's signature, which he identified.)'

CUSTODIAL INTERROGATION

Our first concern is to determine whether the defendant was timely given his constitutional rights as enumerated in Miranda v. Arizona, supra. In order to answer this question we must determine if at any time defendant was under custodial interrogation within the meaning of Miranda. What constitutes 'custodial interrogation' is a question many courts have dealt with since Miranda in 1966, but the question still perplexes courts which seek to lay down a consistent, coherent body of rules the police can predictably work under in performing their job. It is an extremely important concept since the police may not interrogate any person in custody unless his rights are first given and a valid waiver is made. Where defendant is not in custody or deprived of his freedom his answers are not deemed compelled, while the use of inculpatory statements by the prosecution stemming from custodial interrogation without the proper warning and waiver is prohibited. The Supreme Court in Miranda defined custodial interrogation as follows:

'By custodial interrogation, we mean 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.

By way of a footnote the Supreme Court then stated that the 'focus of the investigation' test as...