State v. Toney

• Decision Date: 24 September 1976
• Docket Number: No. 3209,3209
• Citation: 555 P.2d 650,113 Ariz. 404
• Parties: STATE of Arizona, Appellee, v. Robert Lee TONEY, Appellant.
• Court: Arizona Supreme Court

Page 650

555 P.2d 650

113 Ariz. 404

STATE of Arizona, Appellee, v. Robert Lee TONEY, Appellant.

No. 3209.

Supreme Court of Arizona, In Banc.

Sept. 24, 1976.

Bruce E. Babbitt, Atty. Gen., Phoenix, by Heather A. Sigworth, Asst. Atty. Gen., Tucson, for appellee

Albert R. Gamble, Tucson, for appellant.

HAYS, Justice.

This is an appeal from a conviction of murder in the second degree returned by a Appellant was fifteen years old when he and his codefendant, Jerry Thomas, were arrested for the brutal beating murder of an alleged homosexual. He was remanded to adult court and tried there.

jury on May 2, 1975, and a sentence of sixty years to life, imposed on June 13, 1975. We have jurisdiction pursuant to the Arizona Constitution, art. 2, § 24, art. 6, § 5, and Arizona Revised Statutes, §§ 12--120.21(A)(1) and 13--1711.

Eyewitness testimony at trial revealed that the beatings began with a fight outside the V.F.W. Club, a teen hang-out in Tucson. During this fight, both Thomas and appellant, and possibly others, overcame the victim. Further eyewitness testimony, as well as testimony from defense witnesses, including appellant, established that appellant and Thomas then carried the already badly beaten victim to the victim's own car, loaded him in the back seat and drove off with him.

The victim was later found by police in a desert area next to a school. The body, still burning, had been nearly incinerated by appellant and three other companions, not including the codefendant Thomas. However, medical testimony established the cause of death as 'massive skull fracture with diffused brain hemorrhage.' The results of another test showed that the victim was dead before his body was burned.

Appellant's own testimony revealed that he and the three others had gone there to destroy the body after appellant and codefendant had parted. There was testimony that this was not appellant's idea, but the idea of one of the other boys.

Appellant took the stand in his own behalf and testified, in essence, that after they left the V.F.W. with the victim, his codefendant, Thomas, became uncontrollably violent and that it was he, not appellant, who continued beating the victim in the car and after at the schoolyard, until the victim succumbed. Appellant testified that he tried to stop Thomas several times, incurred a severe blow to the head himself in so doing, but because of Thomas' rage, he was unsuccessful in preventing the murder.

Codefendant Thomas took the stand for the defense also, and, in essence, exonerated appellant with a similar story. He had already pled guilty to murder in the second degree and had begun serving his sentence of 30 to 50 years. Thomas' testimony was, however, impeached through the use of a statement he had given the police shortly after the murder, which placed the entire blame for the beating on appellant.

Appellant's testimony was also disputed by the introduction into evidence of a taped statement given by him to police shortly after his arrest.

The questions appellant raises on appeal are these:

1. Did the trial court err in failing to suppress appellant's inculpatory admissions?

2. Did the trial court err in refusing to give an instruction, requested by defense, on aggravated assault?

3. Was the verdict contrary to the weight and sufficiency of the evidence?

4. Was the sentence imposed cruel and unusual, or excessive, under the circumstances?

FAILURE TO SUPPRESS

Appellant contends that three factors combine to make his statements involuntary: (1) his physical impairment caused by the blow to his head, (2) his tender age, and (3) the coercive effect of a police officer's remark to appellant that others involved had already given statements so that he too may as well tell his story.

It is not contended that appellant was not read the Miranda warnings. They were read to him both at the scene of the arrest and before the statement was taken. The concern is with whether, under the circumstances, appellant understood the rights, and whether they were freely and intelligently waived.

The constitutional privilege against self-incrimination applies to juveniles. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Nowhere is it suggested in Gault, however, that a juvenile cannot make a voluntary statement to police. The test, in Arizona, to determine whether a juvenile has made a voluntary statement is the 'totality of circumstances' test, as it is with adults. Arizona Rules of Procedure for Juvenile Court, Rule 18; State v. Taylor, 112 Ariz. 68, 537 P.2d 938 (1975), Cert. denied, 424 U.S. 921, 96 S.Ct. 1127, 47 L.Ed.2d 328 (1976); State v. Mattox, 113 Ariz. 252, 550 P.2d 630 (1976). A minor has the capacity to make voluntary inculpatory statements, even of capital offenses, without the presence or consent of counsel or other responsible adult, and the admissibility of such a statement depends not on his age alone but on a combination of that factor with other circumstances, including his intelligence, education, experience and ability to comprehend the meaning and effect of his statement. People v. Lara, 67 Cal.2d 365, 62 Cal.Rptr. 586, 432 P.2d 202 (1967), Cert. denied, 392 U.S. 945, 88 S.Ct. 2303, 20 L.Ed.2d 1407 (1968); West v. United States, 399 F.2d 467 (5th Cir. 1968), Cert. denied, 393 U.S. 1102, 89 S.Ct. 903, 21 L.Ed.2d 795 (1969).

At the suppression hearing, the trial court heard testimony from the police officers who took appellant's statement. They indicated that appellant was read his rights at least twice and said he understood them; that his mother, although not read the rights, was informed her son was under arrest for murder and where he would be taken if she wanted to come there or obtain an attorney for him; that appellant began to talk quickly and cooperatively right after being informed of his rights; that he never indicated he did not want to discuss the event with the police; that he never complained about his head injury or feeling ill; and he never indicated he wanted to talk to an attorney or his mother.

There was also testimony before the court that appellant had completed the tenth grade in school, had prior contract with the Miranda warnings because of previous arrests, was of normal intellectual capacity and, in fact, was probably above normal. The appellant, on cross-examination, admitted he did well in school, had had at least seven hours of sleep before the morning when he was arrested, and that he was advised that because of the type of crime he was arrested for he could be sent to adult court.

Finally, the court listened to the taped statement itself and, among other things, heard the remarks appellant made about his head injury. The court concluded thereafter that the statement was made voluntarily, intelligently and without force or duress.

After reviewing the entire record, we agree. The trial judge's determination that a statement is voluntary and admissible will not be disturbed on appeal unless there is clear, manifest error. State v. Sanders, 101 Ariz. 410, 420 P.2d 281 (1966); State v. Edwards, 111 Ariz. 357, 529 P.2d 1174 (1975). We hold there was no error in failing to suppress the statement.

FAILURE TO INSTRUCT ON AGGRAVATED ASSAULT

During the struggle at the VF.W. Club, appellant was seen to have given the victim a severe kick in the head. However, the victim was not unconscious when taken away in the car. There was testimony that he sat up in the back seat but was pushed back down, by appellant, as they drove off.

Appellant's contention is that, based on the kick to the victim's head, he was entitled to an instruction on aggravated assault, in addition to the instructions given on murder in the first and second degrees. He argues that his own testimony established an element of the 'lesser included offense' of aggravated assault. That may 'While an assault and battery are always included in an unlawful homicide, they are not degrees of such offense requiring the court where death results to instruct that the defendant may be found guilty thereof.' State v. Myers, 59 Ariz. 200, 208, 125 P.2d 441, 444 (1942).

very well be true. However, we have previously ruled on this point, saying:

See also State v. Contreras, 107 Ariz. 68, 481 P.2d 861 (1971).

Both appellant and his codefendant, Thomas, testified that the victim was alive when they arrived at the schoolyard. In fact, he made one last, futile effort to escape. They both also testified that he was then administered the fatal beating with a lamp and a piece of rock that was there in the schoolyard. Medical testimony established that the victim's skull was virtually broken in half.

Instructions on lesser offenses are justified only when there is evidence upon which the jury could convict of a lesser offense and, at the same time, find that the state had failed to prove an element of the greater crime. State v. Schroeder, 95 Ariz. 255, 389 P.2d 255 (1964), Cert. denied, 379 U.S. 939, 85 S.Ct. 347, 13 L.Ed.2d 350 (1964); State v. Hatten, 106 Ariz. 239, 474 P.2d 830 (1970). Instructions on lesser offenses are not justified if the state of the record is such that the defendant can only be guilty of the...