State v. Sands, 2

• Decision Date: 08 January 1985
• Docket Number: CA-CR,No. 2,2
• Citation: 145 Ariz. 269,700 P.2d 1369
• Parties: The STATE of Arizona, Appellee/Cross-Appellant, v. Royce Calvin SANDS, II, Appellant/Cross-Appellee. 3075.
• Court: Arizona Court of Appeals

Page 1369

700 P.2d 1369

145 Ariz. 269

The STATE of Arizona, Appellee/Cross-Appellant, v. Royce Calvin SANDS, II, Appellant/Cross-Appellee.

No. 2 CA-CR 3075.

Court of Appeals of Arizona,

Division 2.

Jan. 8, 1985.

Reconsideration Denied Feb. 22, 1985.

Review Denied April 23, 1985.

Robert K. Corbin, Atty. Gen. by Bruce M. Ferg, Tucson, for appellee/cross appellant

Alex A. Gaynes, Tucson, for appellant/cross appellee.

OPINION

BIRDSALL, Chief Judge.

On January 21, 1983, a jury convicted appellant Royce Sands II of the following: Count I, Assault, a Class 1 misdemeanor; Counts IV, V, X, XI, XII, and XIV, Aggravated Assault, Class 3 felonies; Counts VI and VII, Kidnapping, Class 3 felonies; Count VIII, Resisting Arrest, a Class 6 felony; and Count XV, Unlawful Possession of Marijuana, a Class 6 felony. ¹ He was sentenced to six months in jail for the first assault conviction, one and one-half years in prison for the two Class 6 felonies and given ten year sentences for each of the other eight felony convictions. All ten prison terms were to be concurrent and all were consecutive to the six-month jail term.

All charges arose from a six-day episode in May 1982. The basic facts are that overnight May 13-14, appellant assaulted his pregnant wife. She escaped from their mobile home and a neighbor took her to Kino Hospital where she was treated for her injuries. The assault was reported to the Pima County Sheriff's office and charges were filed against her husband.

When officers sought to arrest appellant on May 14, he reacted violently. Thus began a hostage/barricade situation, in which appellant's four children were in the home with him and he threatened the use of weapons against anyone trying to arrest or remove him from the home. The county S.W.A.T. team was called in and the hostage negotiation team went into service. Late in the evening, following several hours of telephone conversations with the appellant, one of the negotiators was permitted to approach the home to ascertain that the children were alive and uninjured.

Upon determining that they were, the S.W.A.T. team and the negotiators withdrew. Telephone conversations continued over several days, but the appellant and children did not leave the home. On May 19, under pretense of consulting with appellant concerning charges of improper activities by sheriff's officers, Sheriff Clarence Dupnik and a deputy, Stan Cheske, together with appellant's then-attorney, ² entered the home with the intention of arresting appellant. During that encounter, appellant at all times possessed a firearm. The children were also in the home at the time. Sheriff Dupnik agreed, after consulting with a justice of the peace, to give "immunity" to the appellant, purporting to hold him harmless for all activities which had transpired up to that time. This agreement took the form of a witnessed document written and signed by Dupnik.

Shortly after the sheriff, deputy, and lawyer left the home, another deputy grabbed one of appellant's children playing outside the home, appellant ordered his dog to attack the officer, and another deputy shot and killed the dog. Appellant then began firing rounds from his home at deputies in the area and into a home nearby where a command post had been established. No other shot was fired by the officers until near dark when one of them attempted to shoot out a porch light on the home and failed. S.W.A.T. officers had been recalled to the home when the shooting broke out and telephone conversations between appellant and the negotiator continued until darkness, when appellant finally surrendered.

On appeal appellant cites the following as errors: I) The admission of testimony and tapes of the conversations between appellant and the hostage negotiator, Kevin Gilmartin, a psychologist; II) Refusal to dismiss the charges on the basis of the sheriff's guarantee of immunity to appellant; III) Jury misconduct; IV) Submitting four of the aggravated assault counts to the jury; V) Refusal of the appellant's requested self-defense instructions, and VI) that governmental misconduct, specifically that of the sheriff and magistrate and appellant's counsel, deprived appellant of due process.

The state cross-appeals from the sentence on the issue of whether the court erred in finding that some of the events were committed on the same occasion and therefore could not be treated as prior convictions pursuant to A.R.S. § 13-604(H) (1984 Supp.).

I

Appellant first argues that the evidence concerning his conversations with Dr. Kevin Gilmartin, including tape recordings of the conversations which occurred over several days, should have been ruled inadmissible.

Appellant argues three theories which he claims ought to have mandated suppression of the conversations. Two of these, that the statements he made were involuntary and that he was entitled to Miranda warnings, may be summarily rejected. Appellant was at no time in custody at the time of making the statements to Gilmartin. The United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) set forth the following:

"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.

We cannot find that a man in his own home, possessing weapons, food, and supplies, with a vehicle at his disposal, a telephone, and resisting arrest can be said to be in custody. There was no error in the denial of appellant's motion to suppress on this ground.

A separate voluntariness hearing was conducted to determine whether appellant's statements were voluntary. On January 6, 1983, the first day of trial, the judge ruled that the statements were voluntarily and freely made, denying the motion to suppress on that ground. The trial court, in determining whether incriminating statements are freely and voluntarily made, must examine the totality of the circumstances. Its determination will not be upset on appeal absent clear and manifest error. State v. Hein, 138 Ariz. 360, 674 P.2d 1358 (1983). Nothing suggests appellant's statements to Gilmartin were anything but voluntarily made. In fact the appellant initiated some of the phone calls himself.

A more difficult issue concerning the conversations with Gilmartin involves a claim of psychologist-client privilege. A.R.S. § 32-2085 (1984 Supp.Pamph.) provides:

"The confidential relations and communications between a psychologist certified as provided in this chapter ... and his client are placed on the same basis as those provided by law between attorney and client. Unless the client has waived the psychologist-client privilege in writing or in court testimony, a psychologist shall not be required to divulge, nor shall he voluntarily divulge, information which he received by reason of the confidential nature of his practice as a psychologist, except that he shall divulge to the board any information it subpoenas in connection with an investigation, public hearing or other proceeding. The psychologist-client privilege shall not extend to cases in which the psychologist has a duty to report nonaccidental injuries and physical neglect of minors as required...."

Gilmartin was a psychologist employed by the Pima County Sheriff's office as a psychologist. He has a doctorate in clinical psychology from the University of Arizona and is a certified psychologist. As an officer of the sheriff's department, he was involved in hostage negotiation situations and, prior to involvement in the present case, had participated in some 30 hostage or barricade situations. On May 14, 1982, Gilmartin was initially brought into this situation and from a house next door to appellant's conversed by telephone with him. Some of the conversations were both monitored by other officers and tape recorded by Gilmartin. In all, appellant and Gilmartin talked by telephone for over 20 hours. One of the longest periods of conversation was approximately six hours on the first day, May 14, after Gilmartin first convinced appellant to stay on the line with him and talk. The purpose of his participation was to defuse what appeared to be a volatile and dangerous situation for appellant's children in the mobile home and for officers outside the home. He testified that the purpose of hostage negotiation is to calm and soothe the hostage-taker and to bring about a peaceful resolution of the confrontation.

In order for any privilege to exist it is necessary that the relationship of psychologist-client be established. Because the statute places the privilege on the same basis as that of attorney-client, we look to the cases involving the latter for authority. With reference to the attorney-client privilege, whether such a relationship has been created is a question to be decided by the trial judge. Lietz v. Primock, 84 Ariz. 273, 327 P.2d 288 (1958). The determination is to be made in consideration of all the circumstances surrounding the privilege. United States v. Kovel, 296 F.2d 918 (2d Cir.1961). The burden of showing the relationship, the confidential character of the communication, and other necessary facts, is that of the party claiming the privilege. United States v. Kovel, supra. The determination made by the trial court is conclusive absent an abuse of discretion. Heffron v. Los Angeles Transit Lines, 170 Cal.App.2d 709, 339 P.2d 567 (1959). See also State v. Sturgis, 113 Ariz. 311, 553 P.2d 665 (1976) (doctor-patient privilege). With regard to the doctor-patient privilege, our Arizona Supreme Court has said:

"In the case at bar, Steelman claimed that it had been his understanding during each interview that the doctors were treating him for his withdrawal symptoms. The doctors, on the other hand, testified that they made it clear that they were psychiatrists sent by the District Attorney's Office. The...