State v. Powell

• Decision Date: 31 January 1967
• Docket Number: No. 1,CA-CR,1
• Citation: 5 Ariz.App. 51,423 P.2d 127
• Parties: STATE of Arizona, Appellee, v. Leroy Walker POWELL, Appellant. 61.
• Court: Arizona Court of Appeals

Page 127

423 P.2d 127

5 Ariz.App. 51

STATE of Arizona, Appellee, v. Leroy Walker POWELL, Appellant.

No. 1 CA-CR 61.

Court of Appeals of Arizona.

Jan. 31, 1967.

Darrell F. Smith, Atty. Gen., by Philip W. Marquardt, Asst. Atty. Gen., for appellee.

Anne Kappes, Phoenix, for appellant.

McBRYDE, Judge of the Superior Court.

Defendant was charged, tried, and found guilty by a jury of the crime of Grand Theft by Embezzlement, in violation of A.R.S. §§ 13--681, 13--682, and 13--688 as amended in 1956. He was sentenced to serve a term of not less than two years, nor more than three years in the Arizona State Prison, commencing on June 7, 1965. From this judgment of conviction the Defendant brings this appeal.

Defendant was employed as a night-attendant, from 6 P.M. to 6 A.M., at a service station in Glendale, Arizona, and was on duty the evening of September 7, 1964, when the station manager left around 7:30 P.M. At 6 P.M. when defendant went on duty there was $49.94 in the cash box kept on the 'island' of the station. Defendant later was seen by a police officer at about 2 A.M. at which time he was sitting inside the station, which was lighted, and appeared to be sleeping. The police officer again stopped at the station at 5:05 A.M. on September 8, 1964, at which time the station was lighted, the door was open, but the defendant was not present. The station manager was notified, came to the station, and upon inventorying, determined that there should be $213.00 in the cash box, which was found inside the station, but such box contained only charge tickets in the amount of $43.55. No cash was found in the cash box, and the charge of grand theft by embezzlement was subsequently filed against the defendant.

Defendant maintains that he was held up at the station by two men, whom he can only sketchily identify, some time after midnight; that they forced him at gun point to give them the money in the cash box and then abducted him, forcing him to drive them to Texas in his own car. He testified that the two men attacked him and left him by the side of the road near Kleburg, Texas, taking his car, which he has not seen since that time. Defendant claims he awoke in the Johnson County Hospital, from which he was released after an overnight stay. He sought and found a service station operator he knew, who thought there was something wrong and called the city police department; that he was picked up and put in the city jail, from which he was sent to the county jail and then to the State Hospital. Defendant testified that at that time he remembered nothing about the robbery and abduction, but that after treatments and medication his memory started coming back; that he remembered sketches of what happened from his doctors and that in November of 1964, one of the doctors told him there was a criminal charge pending against him.

Evidence was presented by the State, of Roy Brockway who testified that he was the Sheriff of Kaufman County, Texas; that on February 19, 1965, he went to the Terrell State Hospital, Terrell, Texas, with a warrant from Arizona and had defendant released from the hospital to him. That during the automobile trip from the State Hospital to the Kaufman County, Texas, jail, Sheriff Brockway informed the defendant that he was under arrest on the Arizona warrant and informed him of the charges against him, and that during a conversation with defendant while defendant was in custody under the warrant, he made certain statements to the Scheriff. At a hearing held before the Court in the absence of the jury, Sheriff Brockway testified that he did not advise defendant of his rights; that he made no threats or coercions to adduce defendant to make a statement; and that he did not use any promises or inducements. Thereafter, the Court ruled that the oral confessions or admissions made by defendant to the Sheriff were free and voluntarily made and would be admitted into evidence. The Sheriff then testified before the jury that the defendant 'was definitely under arrest'; that he did not tell defendant of any legal rights to counsel or that statements made would be used against him. Also, that he asked defendant if he wanted to be extradited to Arizona, that defendant answered that he was guilty and wondered if he could get probation; and that the Sheriff told him he did not know the whole nature of the charge at that time.

The testimony of this principal conversation between the Sheriff and the Defendant is in conflict. The defendant claims that the Sheriff had informed him of the charge and that he was under arrest. He also claims that he told the Sheriff that he was not guilty of the crime he was charged with, but that he asked if he were guilty, did the Sheriff think he would get probation.

Two questions are presented by Defendant on appeal: (1) Whether evidence that defendant made inculpatory statements to the Sheriff while in his custody under a warrant of arrest charging the offense for which he was tried and while he was without the assistance of counsel, although counsel was not requested, is admissible when defendant was not advised of his right to counsel or that he had a right to remain silent, or that anything he said would be used against him; and (2) Whether the complained-of instruction by the Court constitutes a comment on the evidence in violation of Article 6, Section 27 of the Arizona Constitution, A.R.S., by taking from the jury the question of whether defendant did in fact make the oral confession and incriminating statements.

The second question raised by Defendant will be first considered here. Defendant's contention in this question is that the complained-of instruction constituted a comment on the evidence in violation of Art. 6, Sec. 27 of Arizona Constitution by taking from the jury the question of whether defendant did in fact make the oral confessions and incriminating statements. We do not think this to be so. The lower court did properly conduct a hearing outside the presence of the jury and did make a determination as to the voluntary essence of such oral admission or confessions and admitted the same into evidence. We feel that the instruction given was legally correct, although not necessarily the best or the recommended instruction. However, since no objection was made by the trial counsel to the form of the instruction, the question cannot now be raised on appeal by the appellant counsel. State v. Monks, 1 Ariz.App. 518, 405 P.2d 456 (1965), 17 A.R.S. Rules of Criminal Procedure, 495, Rule 272, 17 A.R.S. Rules of Criminal Procedure, 493, Rule 51, and other cases cited therein. And although this Court must search the record for fundamental error in all criminal appeals, A.R.S. Section 13--1715, in the instant case, after examining the record, transcript and trial court's instructions as a whole, it is our opinion that the defendant was not prejudiced by the trial court's instruction and no reversible error was found as to such instruction.

The first question raised by Defendant will now be considered. Defendant's contention is that the admission of Sheriff Brockway's testimony resulted in a violation of defendant's rights under the 6th and 14th Amendments to the United States Constitution by reason of the following circumstances: defendant was in the custody of law enforcement officer, Sheriff Brockway, under arrest on an Arizona warrant charging the offense for which he was later tried, and therefore, the crucial accusatory stage of the proceedings had been reached; defendant at that time had a right to remain silent and to have the assistance of counsel; that the Sheriff did not advise defendant ...