State v. Stone

• Decision Date: 20 March 1979
• Docket Number: No. 1,CA-CR,1
• Citation: 122 Ariz. 304,594 P.2d 558
• Parties: STATE of Arizona, Appellee, v. Roman R. STONE, Appellant. 3191.
• Court: Arizona Court of Appeals

Page 558

594 P.2d 558

122 Ariz. 304

STATE of Arizona, Appellee, v. Roman R. STONE, Appellant.

No. 1 CA-CR 3191.

Court of Appeals of Arizona, Division 1, Department A.

March 20, 1979.

Rehearing Denied April 23, 1979.

Review Denied May 8, 1979.

John A. LaSota, Jr., Former Atty. Gen. by William J. Schafer, III, Chief Counsel, Criminal Division, Asst. Atty. Gen., Crane McClennen, Asst. Atty. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender by Joel M. Glynn, H. Allen Gerhardt, Jr., Deputy Public Defenders, Phoenix, for appellant.

OPINION

FROEB, Judge.

Appellant, Roman R. Stone, was charged by information in Counts I and II with kidnapping with intent to hold and detain as a shield or hostage in violation of A.R.S. § 13-492, and in Counts III and IV with robbery while armed with a gun in violation of A.R.S. §§ 13-641 and 13-643(B). The State also alleged that appellant had been convicted of a prior felony, namely, robbery while armed with a knife (Maricopa County Superior Court Cause No. CR-90425). Following a trial by jury, appellant was found guilty on all counts, and the prior conviction was proven. The trial court entered judgment and sentenced appellant to concurrent terms of twenty to fifty years on Counts I and II, this to be consecutive to the sentence of fifteen years to life previously imposed on the prior conviction, and concurrent terms of fifteen to forty years on Counts III and IV, these to be consecutive to the terms on Counts I and II. Appellant appeals from the judgments and sentences of the trial court, presenting the following issues for our consideration:

1. Whether appellant was given adequate Miranda warnings prior to questioning following his arrest;

2. Whether appellant had a constitutional right to act as co-counsel with his court-appointed attorney;

3. Whether there was sufficient evidence to support the jury's guilty verdict on two counts of kidnapping with intent to hold or detain as a shield or hostage;

4. Whether appellant was improperly convicted of a prior felony conviction because that conviction was based on inadmissible hearsay evidence;

5. Whether the voluntariness jury instruction should have included a reference to the Miranda rights.

On February 25, 1977, Officer Daniel Day of the Maricopa County Sheriff's Office was sent to Maricopa County Hospital to transport a prisoner back to jail. Upon arriving at the hospital, Day was advised by two officers that he was to remain at the hospital with appellant. Apparently, appellant had attempted suicide at the prison, and was being treated for resulting injuries in the emergency room of the hospital. The attending physician directed Officer Day to transport appellant from the emergency room on the first floor to the fourth floor. After Day and appellant had entered an elevator, appellant pointed what appeared to be a small caliber pistol at Day. In actuality, it was a pistol fashioned from soap. Appellant then removed Officer Day's fully-loaded 357 magnum service revolver. At appellant's direction Day and appellant left the hospital and proceeded toward the hospital parking lot, where appellant forced Day to remove his leg irons.

Day was directed to flag down an approaching vehicle driven by James Moye. Appellant ordered the driver to "move over," and told Day to drive them away from the hospital. During the trip, appellant took money and clothing from Day and Moye. Appellant forced Day to drive the car to several places and ultimately released Day and Moye in the area of Crown King on the morning of February 26, 1977. Day obtained a ride from a passing motorist to Bumble Bee, where he contacted local authorities.

In the meantime, Patrolman Neil Flores of the Department of Public Safety received an all points bulletin to be on the lookout for appellant. The following day Flores identified appellant at a gas station in Cordes Junction. Since he was off duty, Flores went home and informed local authorities that he had seen appellant. He then returned to the Cordes Junction area and, after spotting the suspect vehicle again, blocked the road with his car, causing the two cars to collide. Appellant was arrested, read his Miranda rights from a standard "rights card," transported to Prescott, and then from Prescott to Phoenix by Detectives Bud Cheatham and Ed Scott. While enroute to Phoenix, Detective Scott advised appellant of his Miranda rights from memory. Thereafter, appellant made several incriminating statements which were subsequently admitted into evidence at appellant's trial.

VOLUNTARINESS OF ADMISSIONS

Appellant argues on appeal that he was not given adequate Miranda warnings prior to questioning following his arrest and that the trial court committed reversible error by allowing into evidence certain admissions made by appellant during that questioning. Specifically, appellant contends that at the hearing in which the trial court determined the voluntariness of the admissions in question, there was no evidence presented by the State that appellant was explicitly told, prior to any questioning, that he had a right to an attorney during subsequent questioning. The transcript of the voluntariness hearing shows that the only evidence presented by the State concerning the extent of the Miranda warnings given appellant prior to his admissions was that appellant was advised by Detective Scott

that he had the right to remain silent; that anything he said could be used against him; and that he had a right to have an attorney present with him prior to questioning; and if he couldn't afford one, the State would provide him with one.

It is arguable whether the trial court committed initial error by allowing appellant's admissions into evidence solely on the basis of the testimony concerning the Miranda warnings given by Detective Scott. However, we believe that any initial error committed by the trial court at the voluntariness hearing was cured by the subsequent introduction at the trial of evidence that each requirement of Miranda had been met prior to the questioning of appellant. See Samuels v. United States, 397 F.2d 31 (10th Cir. 1968). The record on appeal shows that at the trial the State presented uncontradicted testimony that, immediately following appellant's arrest, one of the arresting officers, Sgt. Leonard, read appellant a full Miranda warning from a standard Miranda "rights card." This "rights card" included a specific warning that appellant had the right to the presence of an attorney both prior to and during questioning. Under Arizona law, once a defendant has been fully advised of his rights, there is no requirement that the warnings be repeated each time questioning is resumed. State v. Allen, 111 Ariz. 125, 524 P.2d 502 (1974); State v. Miller, 110 Ariz. 597, 522 P.2d 23 (1974). We hold that any error committed by the trial court at the voluntariness hearing was completely dissipated.

HYBRID REPRESENTATION

Appellant next argues that the trial court erred in denying appellant's request to act as co-counsel with his court-appointed attorney. It is appellant's contention that he has a constitutional right, under the federal and state constitutions, to act as co-counsel with his assigned attorney. We cannot agree.

It is established that a criminal defendant, both in federal and state court, has a federal constitutional right to represent himself, or, in the alternative, to be represented by counsel. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Many federal courts have held, however, that an accused has no federal constitutional right to hybrid representation, that is, to represent himself and be represented by an attorney at the same time. United States v. Williams, 534 F.2d 119 (8th Cir. 1976); United States v. Hill, 526 F.2d 1019 (10th Cir. 1975); United States v. Wolfish, 525 F.2d 457 (2nd Cir. 1975); United States v. Dujanovic, 486 F.2d 182 (9th Cir. 1973).

We also reject appellant's suggestion that the Constitution of the State of Arizona, art. 2, § 24, which provides that "the accused shall have the right to appear and defend in person, And by counsel," (emphasis added) should be interpreted to mean that an accused has a state constitutional right to hybrid representation. We think that art. 2, § 24, was intended to give an accused the right to represent himself or the right to be represented by counsel, but not the right to have his case presented in court both by himself and by counsel acting alternately or at the same time. The decisions of the state courts of California, governed by a nearly identical constitutional provision, support our interpretation of art. 2, § 24. See, e. g., People v. Mattson, 51 Cal.2d 777, 336 P.2d 937 (1959). We agree with the following statement by the California Supreme Court in People v. Mattson:

(D)espite the constitutional and statutory provisions that defendant has the right to appear and defend in person And with counsel, defendant is not entitled to have his case Presented in court both by himself and by counsel acting at the same time or alternating at defendant's pleasure. So long as defendant is represented by counsel at the trial, he has no right to be heard by himself; conversely, when defendant has intelligently declined the aid of counsel he has no right to interrupt the trial with a demand for legal assistance. (citations omitted.)

51 Cal.2d at 789, 336 P.2d at 946.

In light of the foregoing, we conclude that there is no constitutional right to hybrid representation under either the federal or our state constitution. Since appellant did not waive his right to appointed counsel, and since appellant does not claim that he was denied effective representation by his appointed counsel, the trial court did not err in refusing to allow appellant to appear as co-counsel with his court-appointed attorney.

SUFFICIENCY OF THE EVIDENCE

Appellant next argues that there was insufficient evidence introduced...