Appendix — Arizona v. Bravo

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88-175 ‘ $ puprare cout, US. |

— fiLED

NO. 68__ JAN 6 1989

COSERH F. A sata JR.

IN THE SUPREME COURT OF THE UNIT ae

October Term, 1988

STATE OF ARIZONA,

Petitioner,

ALEXSANDRO VINCENTE BRAVO,

Respondent.

ON WRIT OF CERTIORARI TO THE

ARIZONA SUPREME COURT

APPENDICES TO

PETITION FOR WRIT OF CERTIORARI

ROBERT K. CORBIN

Attorney General of

the State of Arizona

CRANE McCLENNEN

Assistant Chief Counsel

(Counsel of Record)

(State Bar No. 003080)

PAUL J. MCMURDIE

Assistant Attorney General

(State Bar No. 010386)

1275 W. Washington

Phoenix, Arizona 85007

Telephone: (602)542-4686

APPENDIX A

[Filed September 20, 1988]

IN THE SUPREME COURT

OF THE STATE OF ARIZONA

En Banc

STATE OF ARIZONA,

Supreme Court

Appellee, No. CR-86-0015-AP

Vv. Pima County

Nos. CR-13184

ALEXSANDRO VINCENTE BRAVO, CR-13421

Appellant.

ee ee a a ae ee ee ee

Appeal from the Superior Court

of Pima County

The Honorable Gilbert Veliz, Judge

AFFIRMED IN PART, REVERSED IN PART

REMANDED

Robert K. Corbin, Attorney General Phoenix

By William J. Schafer III

Paul J. McMurdie

Assistant Attorneys Geéueral

Attorneys for Appellee

Curtis & Cunningham Tucson

By George H. Curtis

Attorneys for Appellant

MOELLER, Justice

JURISDICTION

A jury convicted defendant Alexsandro

Vincente Bravo of the felony murder of

Shang Ngor (Julie) Wong. The same jury,

in a joint trial, also found Bravo guilty

of armed robbery, aggravated robbery, and

aggravated assault committed against

Raland Tinker one day before the Wong

murder. Defendant was sentenced to three

concurrent twelve-year terms on the

Tinker convictions and a consecutive term

of life imprisonment without possibility

of parole for twenty-five years on the

Wong murder. He appeals directly to this

court. We have jurisdiction pursuant to

Bean come. Oct. 6, § $(3}; A.R.S.

§§ 13-4031, -4033, -4035.

ISSUES

The principal issues we deal with are:

(1) Whether all of defendant's

in-custody statements to

-A-2?-

(2)

(3)

investigating officers should

have been suppressed on grounds

of involuntariness, or whether

it was sufficient to suppress

those portions taken after the

officers continued their

interrogation notwithstanding

defendant's invocation of his

right to remain silent?

Whether the testimony of witness

Danny Champion should have been

suppressed as fruit of the

poisonous tree?

Whether the court properly

excluded a hearsay statement of

Reynaldo Tapia which tended to

implicate a person other than

defendant in Wong's murder?

(4) Whether the testimony by a jail

counselor and a psychiatrist on

the issue of voluntariness

violated defendant's rights

because the testimony was based,

in part, on defendant's exercise

of his constitutional rights?

We affirm all of the trial court's

rulings except that relating to the

Champion testimony, which testimony must

be suppressed because it was illegally

obtained.

A. The Tinker Robbery.

Because of the nature of the issues

raised on appeal, we set forth the facts

of these interrelated offenses in some

detail. On December 12, 1981, Charles

Craig's Colt .38 Special was stolen from

Tucson's Desert Inn Hotel. Also stolen

were some unusual Federal brand bullets

which Craig used in the .38. The next

evening, December 13, 1981, Raland Tinker

left his room at the La Quinta Motel in

Tucson and walked to his Chevy Blazer in

the parking lot. Tinker put some items

in the back of his Blazer and locked the

back part of the Blazer. As he walked

around the venicle to get into the

driver's seat, two men came out from

between some cars parked nearby and

approached him. The first man, holding a

gun, said, “This is a holdup. I want

your money, your wallet, and this is a

real gun.” [The same in tnen approacneu

Tinker with the gun held high, partially

obscuring his face, and ordered Tinker to

~lie face down on the ground. Tinker, whi

was familiar with firearms, hought the

gun was either a .32 or .38 caliber

Colt. Tinker obeyed, laid down on his

stomach, and removed his wallet from his

back pocket and placed it near his head.

The wallet contained some credit cards, a

Washington state fishing license, and a

hidden $50 bill. The second man, who

Tinker never saw, checked Tinker's

pockets. The first man then struck

Tinker on the head with the gun; the gun

discharged, sending a bullet into

Tinker's midsection.

After the attack, Tinker was taken to a

local hospital where he was treated. The

bullet removed from his abdomen was

preserved for evidence. Although Tinker

was shown severai photographic lineups by

the police shortly after the crime, he

was unable to identify the one attacker

he had seen. None of the line-ups shown

to Tinker contained a picture of the

defendant. Tinker described his attacker

as a Mexican or Hispanic male between 17

and 19 years old, standing 5'10" and

weighing approximately 150 pounds.

B. The Wong Murder.

At approximately 9:00 a.m. on

December 14, 1981, the day after the

assault and robbery of Tinker, an

assailant entered the H&W Market near

Tucson High School. The assailant shot

and killed Wong, a sixty-seven year old

woman who was one of the owners of the

store. Rolice arriving on the scene

found Wong, who had been shot through the

left eye, laying on the floor near the

front counter of the store. A television

located in the back of the store was on,

as waS a sewing machine near it. The

drawer to the cash register was open and

contained only change. Later, during an

autopsy, a bullet lodged in Wong's head

was removed and preserved for evidence.

;

Police connected the Tinker and Wong

crimes through ballistics analysis eine

revealed that the unusual bullets removed

from the victims' bodies probably came

from the same Colt .38 or .38 special

revolver. Analysis also revealed that

the fired bullets had characteristics

Similar to those which had been stolen

from Charles Craig at the Tucson Inn.

However, no matching gun was ever found.

C. The Defendant's In-Custody Statements.

Nearly two and one-half years later, on

April 4, 1984, defendant Bravo was

arrested in Benson, Arizona, for

attempting to steal a police car in broad

daylight. He was incarcerated in the

Cochise County jail in Bisbee. While

being booked, he was extremely

disoriented and it was impossible to

communicate with him. As described by

One witness, he was “literally bouncing

—

off the walls." Jail personnel observed

3 ; . P ie

. Bravo banging his head against jail bars

and walls and had to physically restrain

him. He openly masturbated continuously,

engaged in other public displays of

sexual conduct, and asked other inmates

for sexual favors.

ton Salas a Micarati eco ed, CARP Rs i OS AE oe

The jail psychiatrist initially thought

2S SORA

defendant's condition was due to acute

drug intoxication and decided to let the

BEM ar nat:

defendant “dry out.” However,

defendant's condition did not improve.

Therefore, eight days after his arrest,

the jail psychiatrist placed defendant on

Haldol, a powerful psychotropic

medicine. He also prescribed Symmetrel

NRT IN ated es dy etait WR WB PG RGr) or be

to control the physical side effects of

Haldol. The Haldol was administered to

Li han Meine Ped

Noes

Tee ae

make defendant more manageable, to clear

his thought processes, and to help

defendant communicate. While

EE OB, Be) Satin)

a ARE nd lat

aise I.

defendant's behavior improved somewhat,

jail personnel testified that he was

still disoriented.

By April 17, 1984, after five days of

medication, defendant's abnormal public

sexual activity ceased. At approximately

noon on that day, defendant asked a

detention officer if he could use the

jail phone. He made a phone call.

Approximately two hours later, he asked

to talk to a detention officer. An

officer went to defendant's cell where,

without any prompting from the officer,

defendant told the officer that he had

killed an old woman in an armed robbery

in Tucson. The officer then asked

defendant if he would like to speak to

the jail counselor, Nancy Kirkman.

Defendant agreed to speak to Kirkman

and was escorted to her office by two

officers. According to Kirkman,

-A-10-

defendant was nervous and visibly upset.

Defendant told Kirkman that he had “lived

with it” long enough and that he needed

to confess to a crime. Kirkman told

defendant that she had to call a police

detective because she could not keep

confessions in confidence. She then told

defendant that if he desired she would

summon a detective. Defendant said that

is what he desired. Kirkman then

summoned a detective to her office.

Before the detective arrived, defendant

again told Kirkman that he had murdered a

lady in Tucson. While defendant and

Kirkman waited for the detective’s

arrival, Kirkman advised defendant that

he should consider exactly what he eer

to tell the detective because it could be

used against him. :

Detective Martinez, who was stationed

in the same building, arrived a-short

-A-11l-

time later and read defendant his rights

pursuant to Miranda v. Arizona, 384 U.S.

436, 86 S. Ct. 1602, 16 L. Ed. 2d 694

(1966). Kirkman was present during the

reading of the Miranda rights and she

attempted to explain the meaning of each

of the rights to the defendant in terms

er See we ey a)

he could understand. Kirkman took the

inte RS

time to explain the Miranda rights to

defendant because her cbservation of his

behavior led her to believe that he might

be incapable of understanding his

rights. Defendant acknowledged that he

understood his rights by either nodding

his head or saying “yes.”

After Martinez finished reading

pian sab A ONS ell RS whe is aN bee APA RANG 6 plan ished OP eitnd Halbalvl geet Men ie Dh

defendant his rights, defendant became

visibly upset and invoked his Miranda

rights by saying, “I don't want to say

anything now." Martinez honored

OAT SEAM nibind Lbs BD ot BAPE elas

defendant's invocation of rights and

-A-12-

immediately left the room. However, the

defendant shortly thereafter asked

Kirkman to summon Martinez again, which

she did. Kirkman, after observing

defendant exercise his rights, came to

believe that he did indeed understand

them. When Martinez returned, he again

informed defendant of his Miranda rights

and Kirkman again explained the rights to

defendant. Defendant again acknowledged

that he understood his rights.

In an unrecorded conversation,

defendant then told Martinez that he had

shot an elderly lady, possibly in

May 1982, near Tucson High. He thought

the name of the store was the "C&W

store." Defendant said he shot the lady

with a .38 special because she attempted

to stop his robbery of the store.

Defendant first said he threw the 38

special into the Santa Cruz River and

-~A-13-

then said that he had sold it. Martinez

then contacted the Tucson Police

Department which dispatched homicide

Detectives Perry Lowe and Edward Gonzales

to Bisbee to talk with defendant.

Lowe and Gonzales, who were introduced

to defendant as members of the Tucson

Police Department, conducted a

tape-recorded interview of the

defendant. Lowe and Gonzales

interrogated the defendant at length.

The resulting statements by the defendant

are at the heart of three of the four

principal issues in this appeal. Early

in the interrogation, defendant

implicated himself in both the Wong

murder and the theft of the gun from the

Desert Inn.

However, after making those

incriminating statements, defendant

invoked his right to remain silent by

-A-14-

ladle Yess is

Re Oe TAN

]

”

stating, “Well, I don’t wanna answer any

more -- any more questions, you

continued to question him, correct?

A. I don't remember the

sequence.

At another pretrial hearing, Officer -

Lowe explained his theory of continuing

to questron Bravo after he invoked his

Miranda rights thusly:

-A-17-

pa eee

PO eR Le ne ae

I didn't feel at that particular

point there was enough facts to

indicate whether he was telling me

the absolute truth or not.

I wanted to hear from him some

other thing that would verify or

refute what he had to say. If he

came up with some entirely

different thing that couldn't have

been happening, I would have said

this wasn't the man. And I needed

to get a little more information,

I felt. So, I went on and talked

to him.

I didn't really think he wanted

to terminate it as -- just seemed

like he just wanted to get off

that particular subject at that

time.

D. The Witness Danny Champion.

It was only during the interrogation

which occurred after defendant invoked

his rights that he directly incriminated

himself in the La Quinta robbery of

Tinker and disclosed the existence of the

Witness Champion. After acquiring

Champion's name from defendant, Detective

Lowe went to Champion's home in Tucson

within the next few days. Champion was

-A-18-

not home. Lowe left his business card

and requested that Champion come to the

police station. On May 2, 1984, Champion

did come to the police station and was

interviewed by Lowe and Gonzales.

Although most of the interview was

recorded, the first five or ten minutes

were not recorded. During that brief

period, the detectives and Champion made

a deal. The detectives told Champ:on

that they were aware of his participation

in the robbery of Tinker at the

La Quinta, but that if he would testify

against defendant they would not charge

him with the La Quinta robbery, so long

as he was not the shooter. The

detectives also agreed to help Champion

out on some unrelated marijuana charges.

At trial, Lowe and Gonzales denied

Champion's claim that they threatened to

“bust his ass" if he failed to cooperate.

-A-19-

At the initial interview with Lowe and

Gonzales, Champion denied that defendant

had ever told him he had shot and killed

someone else. However, after the

interview, Champion consulted with

counsel. Counsel, in turn, recontacted

the detectives and in a statement two

weeks after the first one, Champion

claimed that he had heard the defendant

confess the Wong murder in the presence

of one Jerry Galvan.

At trial, Champion provided damning

evidence against defendant on both the

Tinker and Wong charges. Regarding

Tinker, he testified that he and

defendant robbed him on December 13,

1981, because defendant just decided to

rob someone that day. Champion, armed

with a .22, said he accompanied

defendant, who carried a .38 Smith &

Wesson, over to the La Quinta Inn.

-A-20-

Champion stated that they saw a man leave

his hotel room and walk out to his

truck. According to Champion, Bravo

approached the man and forced him to lay

on the ground. Champion identified

Tinker as the man who he and Bravo had

robbed. Champion claimed that when the

defendant attempted to strike Tinker on

the head with his gun, he, Champion, the

good samaritan, tried to stop defendant

by putting his arm between the gun and

Tinker's head, but that the gun went

off. Champion said that the ei iet

contained no money, some credit cards and

a fishing license from Washington. On

the Wong murder charge, Champion 7

testified that he had heard defendant

confess the Wong murder to Jerry Galvan.

VOLUNTARINESS OF DEFENDANT'S STATEMENTS

Before trial, defendant moved to

Suppress all of his April 17 Cochise

-A-21-

County jail statements as involuntary.

The trial court suppressed only the

portion of his taped statement made after

defendant invoked his Miranda rights.

The state did not object to that

suppression order at trial and does not

here. The trial court refused to

suppress the other statements, finding

that they were voluntary. Basically,

defendant contends that his statements

and his initial waiver of Miranda rights

were involuntary by reason of his mental

condition and the effect of the

medication he was taking. The trial

court held an extensive evidentiary

hearing and found the statements and the

waiver to be voluntary.’

‘In a later section of this opinion, we

deal with the propriety of permitting

testimony at the suppression hearing to

be based, in part, on defendant's

invocation of constitutional rights.

-A-22-

The expert witnesses at the suppression

hearing all agreed that defendant

suffered from a mental illness, although

they did not agree upon the nature of the

iliness or its effect upon defendant's

ability to appreciate his constitutional

rights. Some experts idabitied that the

Haldol defendant was taking improved his

ability to think by slowing his otherwise

confused thought processes.

After carefully considering all the

evidence, the trial court found the

statements to be voluntary. In doing so,

the trial court relied heavily on its own

evaluation of the taped statement and

placed little weight on defendant's

involuntary movements during the

interview, finding that those movements

were a side effect of Haldol not

affecting defendant's ability to

understand the questions. In accordance

-A-23-

with Jackson v. Denno, 378 U.S. 368, 84

S. Ct. 1774, 12 L. Ed. 2d 908 (1964), the

issue of voluntariness was also submitted

to the jury following the trial court's

pretrial preliminary determination.

Confessions are prima facie involuntary

and the state must show by a

preponderance of the evidence that a

confession was freely and voluntarily

given. State v. Thomas, 148 Ariz. 225,

714 P.2d 395 (1986). Mental illness

alone will not preclude the admission of

an Bis Soryeene a voluntary confession unless

the illness renders the declarant unable

to aeentaal the meaning of the

statements made. State v. Porter, 122

Ariz. 453, 456, 595 P.2d 998, 1001

(1979). Once the trial court has

properly considered all the circumstances

Surrounding an interrogation, the trial

court's determination that a confession

-A-24-

was voluntary will not be disturbed on

appeal absent clear and manifest error.

State v. Graham, 135 Ariz. 209, 211, 660

P.2d 460, 462 (1983).

In evaluating defendant's present

claim, the recent Supreme Court case of

Colorado v. Connelly, 479 U.S. 157, 107

S.Ct. 515, 93 L. Ed. 2d 473 (1986), is

most instructive. Connelly approached a

police officer in downtown Denver and

announced that he had murdered someone.

The officer immediately advised him of

his Miranda rights, but Connelly

confessed anyway “because his conscience

had been bothering him.” Connelly

proceeded to provide details of the

homicide to several officers in a 7

coherent fashion, enabling the officers

to link Connelly's confession to a

previously unsolved murder. The

following night, while in custody,

-A-25-

Connelly became disoriented, began

hearing voices, and stated that the

voices had directed him to confess. He

was initially found incompetent to stand

trial, but was found competent in an

evaluation conducted several months later.

At a suppression hearing, a

psychiatrist described Connelly as

suffering from chronic schizophrenia and

as being in a psychotic state the day he

confessed. The trial court suppressed

the confession as involuntary. The

Colorado Supreme Court affirmed, stating

that “the ultimate test of voluntariness

is whether the statement was the product

of a rational intellect and a free

will.” People v. Connelly, 702 P.2d 722,

728 (Colo. 1985).

The United States Supreme Court

reversed. According to the Court, the

Supreme Court of Colorado failed to

-A-26-

recognize “the essential link between

coercive activity of the State, on the

one hand, and a resulting confession by a

defendant, on the other." 479 U.S. at __

107 6. Ct. at $21, 93 &. Eé.. 24 at 483.

The Court specifically rejected an

inquiry into a defendant's motivation for

speaking or acting as he did when the

defendant does not claim that

governmental conduct coerced the

confession. The Court squarely held

“that coercive police activity is a

necessary predicate to the finding that a

‘confession’ is not voluntary within the

meaning of the Due Process Clause of the

Fourteenth Amendment." 479 U.S. at,

107 &. Ct. at $22, 93 t. Ba. 24 at 484.°

*The defendant here has asserted only

federal constitutional grounds in support

of his suppression argument.

-A-27-

In the instant case, there is

absolutely nothing in the record

demonstrating any coercive police tactics

insofar as the unsuppressed statements

—~—

are concerned. See also State v.

Cete.seo, 156 Ariz. 125, 134-137, 750

P.2d 883, 892-95 (1988) (following

Connelly).

Nor can defendant prevail by claiming

that his waiver of Miranda was

involuntary. In Connelly the Supreme

Court rejected the same argument:

There is obviously no reason to

require more in the way of a

“voluntariness” inquiry in the

Miranda waiver context than in the

Fourteenth Amendment confession

context. The sole concern of the

Fifth Amendment on which Miranda

was based, is governmental

coercion. . . . The voluntariness

of a waiver of this privilege has

always depended on the absence of

police overreaching, not on free

choice in any broader sense of the

word.

eee ee ee 7 G. Ct. at $23, 93 L.

Ed. 2d at 486.

-A-28-

Despite the similarities between

Connelly and this case, there is one

Significant difference. In this case,

defendant alleges that the state’s

decision to treat him with a powerful

psychotropic medicine rendered his

statements involuntary. The power of

Haldol is undisputed, and there is a

potential for abuse of medications in

questioning prisoners. However, it is

clear that in this case, the medication

was prescribed for wholly legitimate

purposes. Neither the jailers nor the

doctor prescribing the Haldol had any

idea at all that defendant may have been

involved in serious crimes unrelated to

the relatively minor one for which he was

in custody. No questioning was even

contemplated.

The Haldol was prescribed for a proper

purpose and it did not, in fact, produce

-~A-29-

either an involuntary confession or an

involuntary Miranda waiver. Jails and

prisons must necessarily provide proper

medical treatment for prisoners. Indeed,

statements obtained from prisoners

deprived of proper medical treatment may

sometimes be considered coercive. See

Greenwald v. Wisconsin, 390 U.S. 519,

Sea, Ge Gs Ct. 1192, 1154, 20 L. Ed. 2d

77, 79 (1968) (sSuspect's statements

involuntary in part because he was

interrogated without access to his high

blood pressure medication); Sloan v.

Estelle, 710 F.2d 229, 232-33 (5th Cir.

1983), cert. denied, 464 U.S. 1048 (1984)

(defendant unsuccessfully argued that

confession was coerced because he was

denied access to his medication for

bronchial asthma).

Our previous case law has held that if

a defendant was so intoxicated that he

-A-30-

could not understand the meaning of his

statements, then the statements were

involuntary. State v. Laffoon, 125 Ariz,

484, 487, 610 P.2d 1045, 1048 (1980). In

State v. Clabourne, we held that the test

for voluntariness when a defendant is

under the influence of narcotics or

mental disabilities is whether the

condition renders him unable to

understand the meaning of his statement.

142 Ariz. 335, 342, 690 P.2d 54, 61

(1984). The trial court looks to the

totality of the circumstances to

determine whether the accused was able to

reason, comprehend, or resist. State v.

Laffoon, 125 Ariz. at 487, 610 P.2d at

1048. However, after Connelly and

Carrillo, the question of-~voluntariness,

for purposes of the federal constitution,

must focus on police conduct, and not

solely on the mental state of the

-A-31-

defendant. State v. Tucker, No. 6711,

slip op. at 29 (Ariz. Sup. Ct. June 2,

1988) (finding that an intoxicated

defendant's statements were voluntary

within the meaning of the due process

clause of the fourteenth amendment and

were not obtained in violation of his

fifth amendment rights).

Like the trial court, we have listened

to the taped portions of the statements

and have reviewed all of the other

evidence which was before the trial court

on the issue of voluntariness. There is

ample evidence to support the trial

court's finding.

ADMISSIBILITY OF CHAMPION'S TESTIMONY

We have previously set forth at some

length the circumstances concerning the

continued interrogation of defendant

after he invoked his Miranda rights. It

was during this interrogation that the

officers first learned of the witness

Champion who had not surfaced as a

witness in the two and one-half years

Since the La Quinta robbery and the Wong

murder. The detectives immediately

attempted to contact Champion. When they

did so, they made a deal with him by

which he would testify against defendant

on the La Quinta robbery in return for

immunity on the La Quinta crimes and

"help" on some other unrelated offenses.

Upon further reflection and after

consulting with an attorney, Champion

also provided the police with evidence of

defendant's purported confession to the

Wong murder as well, although he denied

any such knowledge at the time of his

first interview with the police.

Defendant moved to exclude Champion's

testimony as “fruit of the poisonous

tree," pursuant to Wong Sun v. United.

-A-33-

States, 371 U.S. 471, 83 Ss. Ct. 407, 9 &.

Ed. 2d 441 (1963). The issue is whether

“the connection between the lawless

conduct of the police and the discovery

of the challenged evidence has ‘become so

attenuated as to dissipate the taint'" of

the violation. Id. at 487, 83 S. Ct. at

417, 9 &. Se. 26 at 457.

The critical case in the resolution of

this issue is United States v. Ceccolini,

435 U.S. 268, 96 S. Ct. £654, 35 &. Ea.

2d 268 (1978). In Ceccolini a policeman

on his lunch break visited a flower shop

and began conversing with an employee who

was also his friend. During the

conversation, the officer noticed an

envelope and, after examining the

envelope, discovered evidence of a

gambling operation. The officer asked

the employee who owned the envelope. The

-A-34-

employee told the officer that the

envelope belonged to Ceccolini.

Coincidentally, the FBI had been

conducting an ongoing investigation into

gambling in the area and the flower shop

had been under surveillance for some

time. As a result, the identity of

Ceccolini and the employee were already

known to the FBI. The officer's

supervisor notified the FBI. Four months

later, the FBI interviewed the employee.

The employee told the agent that she was

studying police science in college and

was willing to testify against

Ceccolini. She did and Ceccolini was

convicted of perjury. He challenged the

admissibility of her testimony on the

grounds that it was the fruit of an

illegal search.

The Supreme Court held that the

employee's testimony was properly

-A-35-

admitted despite the causal connection

between the illegal search and the |

testimony. The Court went beyond the

preexisting “independent source” and

“inevitable discovery” exceptions to the

exclusionary rule in order to admit the |

testimony. The Court also distinguished

between physical evidence and live

witnesses:

Witnesses are not like guns or

documents which remain hidden from

view until one turns over a sofa

Or opens a filing cabinet.

Witnesses can, and often do, come

forward and offer evidence

entirely of their own volition.

And evaluated properly, the degree

of free will necessary to

dissipate the taint will very

likely be found more often in the

case of live-witness testimony

than other kinds of evidence. The

time, place and manner of initial

questioning of the witness may be

such that any statements are truly

the product of detached reflection

and desire to be cooperative on

the part of the witness. And the

illegality which led to the

discovery of the witness very

often will not play any meaningful

-A-36-

ae rnrtcenene we

part in the witness’ willingness

to testify.

Id. at 276-77, 98 S. Ct. at 1060, 55 L.

gG.-26 at 3277.

Additionally, the Court noted that

there can be great injury to the public

when an eligible witness is precluded

from testifying. “Rules which disqualify

knowledgeable witnesses from testifying

at trial are... ‘serious obstructions

to the ascertainment of truth' ‘

[oe ase, Se 6. Ct. at 1061, 55 L. Ed.

2d at 278 (citing C. McCormick, Law of

Evidence § 71 (1954)).

In Ceccolini the Court concluded that

the following factors militated toward

admitting the employee's testimony: the

witness’ willingness to testify, the time

lapse between the illegal search and the

initial contact with the witness, the

subsequent time lapse between the contact

with the witness and the witness’

-A-37-

seis fs sie TREO pA CCBA Md ead Pei RENEE NNER RR als RNR ON SPATS AN ein ir tes

testimony, the independent and

preexisting surveillance of the flower

shop by the FBI, and the absence of any

intent by the officer to find evidence of

an illegal gambling operation. 435 U.S.

at 279-80, 98 S. Ct. at 1062, 55 L. Ed.

2d at 279.

The principles of Ceccolini have

evolved into a four-factor test to be

used to determine the admissibility of

tainted live-witness testimony: (1) the

willingness of the witness to testify;

(2) the role played by the illegally

seized evidence in seinen the witness'

cooperation; (3) the proximity between

the illegal behavior, the witness’

decision to cooperate and the actual

testimony at trial; and (4) the police

motivation in conducting the search.

United States v. Hooton, 662 F.2d 628,

632 (9th Cir. 1981), cert. denied, 455

-A-38-

U.S. 1004 (1982) (citing United States v.

Leonardi, 623 F.2d 746, 752 (2nd Cir.),

cert. denied, 447 U.S. 928 (1980)).

In this case the trial court concluded

that three of the four factors favored

the state, and that the testimony of

Champion was admissible. We disagree and

hold that Champion's testimony must be

exc luded.

A. Police Motivation

In weighing the factor of police

motivation (to take the last factor

first), we believe it is appropriate to

look at the extent and nature of the

violation. The illegality in Ceccolini

was virtually accidental when compared to

the violation in this case. The officers

in this case were experienced homicide

detectives from a large metropolitan

police force. They were thoroughly

familiar with Miranda. Miranda is clear:

-A-39-

Once warnings have been given, the

subsequent procedure is clear. If

the individual indicates in any

manner, at any time prior to or

during questioning, that he wishes

to remain silent, the interrogation

must cease.

384 U.S. at 473-74, 86 S. Ct. at 627,

L. Ed. 2d at ___ (emphasis added.)

The suspect's right to cut off

questioning must be “scrupulously

honored." State v. Hatton, 116 Ariz.

142, 146, 568 P.2d 1040, 1044 (1977); see

also Michigan v. Mosley, 423 U.S. 96, 96

S. Ct. 321, 46 L. BG. 24 313 (1975). The

violation in this case did not occur in

any mirky, ill-defined area of law where

reasonable persons could differ on

Miranda application. This was a clear

violation of black letter Miranda law

known to all qualified police officers.

The excuses offered by the officers for

continuing the questioning after the

defendant invoked his rights are

-A-40-

frivolous. If the United States Supreme

Court had intended that in-custody

interrogation of prisoners could be

conducted and continued solely at the

discretion of the interrogating officer,

it would not have promulgated the Miranda

rule. For the officers to contend that

they may continue questioning after the

defendant's invocation of rights for the

purpose of trying to exonerate him is

merely the flip side of their contending

that they may continue questioning him to

see whether his answers fail to exonerate

him, i.e., to see whether his answers

incriminate him.

Our review of the tape and of the

transcript of defendant's interview with

the detectives indisputably reveals that

the police were actively searching for

information and for witnesses. The

following passage is but one example

-A-41-

one

i See

demonstrating the frivolity of the

present claim that the officers were

simply attempting to-see whether

defendant was falsely confessing to the

Wong murder:

Lowe:

Bravo:

Lowe:

Bravo:

Lowe:

Bravo:

Lowe:

Bravo:

Lowe:

Do you remember

being over at La Quinta

and robbing a man there?

No. I didn‘t do that.

You didn't do that.

Uh-um.

What if I told you the

same gun that [sic] was

used in the La Quinta

shooting was the same gun

that shot the. old lady?

What's La Quinta?

I'd kine of like to know

about the night before

you did this? [the

murder J :

I don't remember. Why

would I remember the

night before?

Because you should

remember everything

before or after. A time

period that

-A-42-

;

Bravo: I guess I do.

Lowe: You think you do?

Bravo: Because I was in La

Quinta, too. I did that,

too.

Finally, the police obtained Danny

Champion's name by asking a specific

question which falls outside their

purported rationale for continuing the

interview after Bravo's invocation of his

Miranda rights. When they asked defendant

“[wlho was with you [during the robbery]?"

and elicited Danny Champion’s name, they

were not confirming anything, but were

instead seeking new information.

The Supreme Court approved of the

eyewitness testimony in Ceccolini in part

because “[t]here is, in addition, not the

Slightest evidence to suggest that Biro

[the officer] entered [the wremises]

with the intent of finding tangibie

evidence .. . much less any suggestion

-A-43-

that he entered the [premises] .. . with

the intent of finding a willing and

knowledgeable witness. ..." 435 U.S.

at 279-88, 98 S. Ct. at 1062, 55 L. Ed.

2d at 279. Indeed, the Ceccolini

decision stated: “Of course, the

analysis might be different where the

search was conducted by the police for

the specific purpose of discovering

potential witnesses.” Id. at 276 n.4, 98

=o. Gee Ot 4060 8.4, 55 L. Ed. 24 at 277

n.4 (emphasis added).

The police in this case did exactly

what the Supreme Court suggested would

have been improper for the officer

involved in Ceccolini to do. They were

attempting to find witnesses when they

violated the defendant's Miranda rights.

The stated philosophy of the detectives

was to ignore the requirements of Miranda

and to let the courts sort it all out

later. The state is ill-served by such

~A-44-

disregard for the law, and this case and

the resulting reversal is a prime example

of such ill-service. The factor of

police motivation strongly militates in

favor of exclusion.

B. Time Lapse

In considering the factor of time

lapse, the trial court found that the

length of time between the illegal

behavior of the police, the witness‘

decision to cooperate, and the actual

testimony at trial went in favor of the

state. These three factors had been

considered in Ceccolini to determine if

the testimony given by the witness was an

act of free will. 435 U.S. at 279-80, 98

S. Ct. at 1062, 55 b&b. Bd. 246 at 279.

The trial court found that the eighteen

months between the “behavior of the

police attinec* and Champion's actual

trial testimony placed the time lapse

factor on the side of the state. Given

-A-45-

tet

the circumstances of this case, we

believe that the trial court applied this

factor too mechanically. In Ceccolini,

the Court noted that “[s]Jubstantial

periods of time elapsed between the time

of the illegal search and the initial

contact with the witness, on the one

hand, and between the latter and the

testimony at trial on the other.” Id.

The Ceccolini court found these lapses of

time to be significant because the

witness maintained a willingness to

testify despite an opportunity to back

out.

However, an examination of the time

periods involved in this case, we

believe, indicates that the time lapse

factor favors exclusion. As for the

first time period, the police contacted

Champion immediately following their

illegal interview with the defendant. As

for the second time period, it is true

-~A-46-

there was an eighteen-month gap between

Champion's initial police interview and

his trial testimony. But as soon as

Champion cut a deal with the police (a

mere two weeks after the Miranda

violation), he opened himself up to

significant harm if he refused to

testify. If he did not keep his end of

the agreement by being a cooperative

witness, the state would prosecute him

for the La Quinta robbery and would also

refuse to help him on his outstanding

marijuana charges. As a matter of fact,

his marijuana charges were still pending

when he gave his trial testimony. In

effect, Champion had no real opportunity

to back out once he made his deal without

suffering extremely adverse personal

consequences.

Under these circumstances, the

eighteen-month period is of little

Significance because, unlike the witness

-~A-47-

ips A etl

in Ceccolini, it did not indicate that

Champion had a long-term willingness to

testify. Indeed, the record indicates he -

was demonstrably reluctant to testify at

trial.

At trial Champion intimated that he

felt forced to testify. His hostility

while testifying ultimately led to the

prosecutor stating:

I would ask for leave to use

leading questions with

Mr. Champion, because I think

especially after his testimony

yesterday, he's a hostile

witness. He's not a state's

witness. He's accused the state

of threatening him with his --

with, quote: "™ busting my ass."

I submit he's hardly a fully

cooperative state's witness.

So I would ask leave to ask

leading questions, and I think

that would solve the problem.

Here the time-lapse factor favors

exclusion.

C. Role of Unlawful Interrogation

The third factor which the court

considered in Ceccolini was the

~h~46-

connection between the illegally-obtained

evidence and the role it played in

gaining the witness' cooperation. The

trial court properly found that this

factor cut against the state. The plain

fact is that, two and one-half years

after the crimes, the police didn't have

a clue that Champion was a potential

witness in either the Wong or Tinker

cases. The identity of Champion came

solely and exclusively from the illegal

questioning and the state never would

have found Danny Champion without it. In

Ceccolini, on the other hand, the Court

noted that both the identity of the

witness and her relationship with the

defendant were well known by the police

prior to any police impropriety. 435

oo. oc are, Se @. Ct. @t 1062, 55 L. Ed.

4G at 279.

At least two courts have excluded live

witness testimony in cases where the

identity of the witness was completely

-A-49-

unknown to the police before the

misconduct. In United States v. Scios,

590 F.2d 956, 963 (D.C. Cir. 1978), the

court excluded the testimony because

"“Massa's existence as a potential witness

was entirely unknown to the authorities

before they searched Scios'‘s files." In

Commonwealth v. Lahti, 398 Mass. 829, 501

N.E.2d 511 (1986), cert. denied,

U.S. ., AOT-S. Ct. 1893 ¢€1987), the

cour. proved the exclusion of testimony

where the police engaged in misconduct

designed to discover witnesses apparently

unknown to them. Because the unlawful

interrogation led directly to the witness

Champion and he would not otherwise have

been discovered, this third factor weighs

heavily in favor of exclusion.

D. Willingness of Witness to Testify

The trial court found that the final

factor -- the alleged willingness of the

-A-50-

witness to testify -- weighed in favor of

the state. This factor may be the most

difficult of the four to evaluate and has

been subject to disparate interpretations

by state and federal courts.

The Court's application of the

willingness-to-testify standard was

straightforward in Ceccolini. The

witness in Ceccolini was not a suspect in

the case, she was studying police

science, and she had an affirmative

interest in testifying. We do not think

that Champion, who was summoned from the

streets some two and one-haif years after

the crimes in question, and who was

immediately told that the police were

aware of his participation in the

La Quinta robbery, can be said to have

made statements which were “truly the

product of detached reflection and a

desire to be cooperative on the part of

DPE HART.

the witness.” 435 U.S. at 277, 98 S. Ct.

at 1060, 55 L. Ed. 2d at 277. He clearly

testified to avoid prosecution on the

La Quinta robbery and on his outstanding

marijuana charges.

We do,- however, recognize that

Ceccolini is not limited to cases

involving “good-citizen” witnesses. See,

e.g., United States v. Schaefer, 691 F.2d

639 (3d Cir. 1982) (witness’ decision to

testify was a voluntary decision to

promote his own interests with respect to

sentencing); see also Hooton, 662 F.2d

628 (Ceccolini not limited to

good-citizen witnesses testifying out of

Civic duty); Leonardi, 623 F.2d 746

(permitting testimony of unindicted

co-conspirator); United States v.

Brookins, 614 F.2d 1037 (5th Cir. 1980)

(testimony was in no way coerced although

partially induced by grant of immunity);

-~A-52-

United States v. Stevens, 612 F.2d 1226

(10th Cir. 1979), cert. denied, 447 U.S.

921 (1980) (fact that testimony of an

accomplice came as part of a plea bargain

into which the accomplice entered did not

diminish volition of his coming forward

to implicate defendant); People v.

Briggs, 709 P.2d 911 (Colo. 1985)

(describing distinction between coerced

and voluntary immunized testimony).

However, what the Supreme Court focused

on in Ceccolini was the presence of

realistic options. The witness in

Ceccolini had the option not to testify

and yet she still chose to do so many

months later. Here, Champion had no

realistic options. He arrived at the

police station and was confronted with

the officers' accusations. They

explained to him that if he agreed to

cooperate and testify they would agree

-A-53-

PO eee eee ae ieee ee

not to charge him with the La Quinta

crimes and would also help him in his ~

pending marijuana charges. Obviously, |

the implication is that he will be

prosecuted if he doesn't testify. The

trial court stated that Champion's deal

and resulting testimony were voluntary

because the officers did not have |

probable cause to arrest Champion. They

did, of course, have defendant's

statement (albeit illegally obtained)

implicating Champion in the La Quinta

robbery. More importantly, Champion was

not under the impression the police could

not arrest him. Throughout, he

maintained that they threatened to do

just that if he did not cooperate.

In United States v. Scios the court

Said:

In the present case, it is plain

that Massa's giving of testimony

-- before the grand jury, and

presumably at the trial -- is

-A-54-

LON TENET oat MNT

purely and simply a product of

coercion. Massa's decision to

testify is not i matter of choice,

or free will, but made solely to

avoid being jailed for contempt.

His decision to testify in such

circumstances can hardly be what

Judge Burger had in mind in Smith

and Bowden when he spoke of the

"human personality whose

attributes of will, perception,

memory and volition interact to

determine what testimony he will

give."

590 F.2d 956, 961 (D.C. Cir. 1978)

(citations omitted).

Champion's testimony here is similarly

coerced. Obviously, he was initially

unwilling to testify -- for two and

one-half years he had not felt the urge

to step forward and confess. At the

station he was told that the police knew

of his participation in the La Quinta

robbery. From the questions during his

interview, he could not have been unaware

that there was an Ongoing homicide

investigation and that he was quite

possibly a suspect in it. He could avoid

~_ i. Fe...

being charged for the La Quinta robbery

and get help on his unrelated marijuana

charges only if he agreed to testify.

The state makes much of the two-week

period between the time the deal was made

and the second interview, claiming the

time span is evidence that Champion's

testimony was the product of his free

will. We disagree. The two

interrogations are interrelated. A

review of the transcript of the first

interrogation reveals that the two

homicide detectives were clearly

interested in the Wong murder. They

repeatedly asked Champion about his

activities the day of the murder. His

return two weeks later, after

consultation with his attorney, to relate

defendant's aileged confession to the

Wong murder is intrinsically linked to

the coercion exerted upon him at the

first interrogation.

-A-56-

In short, under the circumstances of

this case, all four Ceccolini factors

favor the suppression of Champion's

testimony because it is the direct result

of illegal police activity and it is not

sufficiently attenuated to be otherwise

admissible.

ADMISSIBILITY OF REYNALDO TAPIA'S

STATEMENTS

At trial, defendant sought to blame

both the Wong murder and the La Quinta

robbery on one Frank Martinez. Martinez

testified and denied any involvement in

either of the crimes. Another witness,

Johnny Urias, testified that Martinez had

admitted that he had committed the

La Quinta robbery and had shot a Chinese

lady (presumably Mrs. Wong). Defendant

sought to have another witness, Reynaldo

Tapia, testify similarly to Urias, but

Tapia invoked the fifth amendment.

-A-57-

Defendant then sought to introduce a

tape-recorded statement that Tapia had

given to the police. In the statement,

Tapia claimed that he and Martinez were

sniffing glue in a park when Martinez

left to rob “that Chinese store” and

returned “about one and one-half hours

later .. . breathing hard and very tired

and started telling everyone there that

he shot the lady at the store.”

On appeal, defendant initially claims

that the trial court erred in sustaining

Tapia’s claim of fifth amendment

privilege. Because defendant never

objected to Tapia's invocation of the

privilege in the trial court, that issue

is waived on appeal. Rule 103(a), Ariz.

R. Evid. 17A A.R.S.; see generally State

v. Thomas, 130 Ariz. 432, 435, 636 P.2d

1214, 1217 (1981). If Tapia successfully

claims the privilege at a retrial,

-A-58-

however, the admissibility of his

statement may again be an issue so we

deal with it now.

The defendant urges the admissibility

of Tapia's statement under

Rule 804(b)(5), Ariz. R. Evid. -- the

residual hearsay exception for

unavailable witnesses.’ Rule 804(b)(5)

allows hearsay evidence to be admitted if

it possesses adequate circumstantial

guarantees of trustworthiness, is

evidence of a material fact, and if |

justice would be served by its

admission. State v. Smith, 138 Ariz. 79,

*We note that Rule 804(b) (3)

specifically relates to statements

against interest where the declarant is

unavailable and may impose a more

stringent standard of corroboration than

does Rule 804(b)(5) when the statement

against criminal interest is being

offered to exculpate an accused.

However, as noted, both in the trial

court and here, the statement has been

offered, and the legal issue presented,

solely under Rule 804(b)(5), so we deal

with it as such.

-A-59-

84, 673 P.2d 17, 22 (1983), cert. denied,

465 U.S. 1074 (1984). The statement must

be both strongly probative and

circumstantially reliable. See State v.

Ramirez, 142 Ariz. 171, 177, 688 P.2d

1063, 1069 (App. 1984).

In State v. Robles, 135 Ariz. 92, 659

P.2d 645 (1983), this court rejected a E

mechanical approach to Rule 804(b)(5) and

held that a trial court should examine

each case individually by analyzing a

number of factors including:

1. The presence of oath or

cross-examination.

2. The ability of the declarant

to perceive clearly.

3. The amount of time between the

event and the declaration.

4. The presence of corroborative

evidence.

5. The self-incriminatory nature |

of the declaration. |

6. Whether the declaration was

unambiguous and explicit.

-A-60-

Whether multiple levels of

hearsay are involved.

Id. at 95, 659 P.2d at 648.

The trial court complied with Robles

and made the following individualized

findings and observations concerning the

proffered testimony, which we summarize

as follows:

No presence of

cross-examination in the prior

interview.:

The time between the alleged

confession and the crime was

short, weighing for the

defense.

While there was corroboration

due to the fact that appellant

had presented another witness

who also testified that

Martinez had confessed to him;

the fact that Tapia's

Statement was not against his

own interest and that he

incriminated Martinez in his

own murder case rendered the

third factor neutral for

either side.

The witness’ statement, while

initially unambiguous, was

retracted somewhat in

interviews with the

prosecution,

-A-61- .

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5. That there are multiple levels

of hearsay as appellant

offered to introduce what the

police said Tapia said

Martinez said.

The trial court then noted the unique

unreliability of the proffered evidence:

So, that's, you know -- and then

ultimately the thing that strikes

me as peculiar in this case is

that unique situation where Tapia

is now labeling Martinez as the

killer in a case where he's

charged with first-degree murder.

And that places a whole

difficult aspect of evaluation

that should be inquired by the

jury, and which can't be inquired

by the jury if he takes the Fifth

amendment.

So, under all those

Circumstances, it seems to me very

difficult so say “Well, it's fair

to bring all this evidence in, you

know; it’s such a -- so close on

the line.

But that aspect to me is so

important that the jury should be

able to determine, you know,

something of this nature. Until

he takes the Fifth they don't

know, you know, that he's named

Martinez as a killer in another

matter. Is he amplifying his --

his case by testifying that

Martinez was a killer in another

case also?

-A-62-

Well, you say "No, that's not

true because he made this

statement originally in ‘82, and

this happens in ‘84."

a. &

It leads to such collateral

issues that the probative value at

a certain point becomes

questionable, specifically since

we've already got before the jury sea

that Martinez told the gentleman

yesterday that he had shot a

Chinese woman and that he had been

involved in -- I also don't

remember -- the La Quinta robbery

was also mentioned. I can't

remember if he specifically said

that. .

So, we've already got the

statement from Martinez through

this other witness who had none of

these complications that in fact

that this had occurred.

So, I think that under that

analysis, the motion to permit all

the evidence, that hearsay

evidence pursuant to that rule is

denied.

This is exactly the type of analysis,

tailored to the individual case, that is

required by Robles. Exclusion of this

type of evidence by the trial court will

not be disturbed on appeal absent a clear

-A-63-

i —

abuse of discretion. Robles. There was

no such abuse of discretion so we affirm

the decision of the trial court.

TESTIMONY BY THE STATE'S WITNESSES

ON VOLUNTARINESS

Defendant argues that his rights were

violated by the manner in which the

state's experts testified both at the

pretrial motion to suppress and at

trial. At the time of the suppression

hearing, Nancy Kirkman, a counselor for

the Chochise Crees jail, testified

regarding the events surrounding Bravo's

statements. Kirkman used defendant's

initial invocation of his right to remain

Silent as some evidence that the

defendant's statements were voluntary.

At the same hearing, Edward Gelardin, a

physician specializing in psychiatry who

twice evaluated Bravo for competency,

also testified. In support of his

opinion, he relied on the fact that

-A-64-

defendant invoked his right to remain

silent as well as on that portion of the

statement obtained in violation of

Miranda. Gelardin did not specifically

mention any particular portion of the

suppressed statement. At trial, Gelardin

also testified that defendant's responses

to questions from Detectives Lowe and

Gonzales were rational and coherent.

Defendant claims that the trial judge

erred in permitting the witness to use

his Miranda rights invocation as a

partial basis for their opinions.

Arizona courts have recognized that

protection against self-incrimination

includes freedom from adverse

consequences flowing from defendant's

exercise of his fifth amendment rights.

[ooree -. Cerri iio, 196 Ariz. 125, 750

P.2d 883 (1988). Normally, any reference

by a judge or a prosecutor about a

defendant's protected silence will

-A-65-

constitute fundamental error. State v.

Anderson, 110 Ariz. 238, 517 P.2d 508

(1973). Miranda warnings carry an -

implicit assurance that a defendant's

choice to remain silent will carry no

penalties. Carrillo, 156 Ariz. at 134,

750 P.2d at 887 (citing Doyle v. Ohio,

426 U.S. 610, 618-19, 96 S. Ct. 2240,

2245, 49 L. Ed. 2d 91, 96 (1976)).

Having said that, we find it helpful to

discuss the pretrial and trial

proceedings separately.

A. Pretrial Testimony

At the pretrial motion to suppress

Kirkman testified as follows:

THE PROSECUTOR: Now, in terms

of Mr. Bravo, and in terms of his

behavior, emotional state at the

time that you were speaking to him

in your office, did you believe

that Mr. Bravo was understanding

what was being said to him and

understanding what he was saying?

THE WITNESS: Initially, I

wasn't sure whether or not Alex:

was understanding.

-A-66-

I was convinced that he did

understand at the point in which

he became -- well, I don't know if

he became frightened or not. The

point at which he decided not to

talk to Frank Martinez appeared in

reaction to what I had been

telling him, that it indeed was a

very serious thing, that he was

about to tell the detective, that

it could be used against him.

And he appeared aware of that

and that's what changed his mind.

And I think at that point I

became convinced that Alex did

know that, that he did understand.

Dr. Gelardin testified at the pretrial

voluntariness hearing as follows:

And then, as I understand it,

after he’s read his rights, he has

some brief second thoughts and --

which is kind of a rational

response one might expect to

hearing one's rights; it reminds

you of all the trouble you may be

in later.

And so, he -- the fact that he

has some second thoughts, and I

feel like he barely presumes that

was the basis of his second

thoughts, so that interaction to

me is important.

If such evidence were presented to a

jury as evidence of defendant's

-A-67-

consciousness of guilt or of his sanity,.

it would be error. The first use is

prohibited by Doyle v. Ohio, 426 U.S.

610, 96 S. Ct. 2240, 49 L. Ed. 2d 91

(1976), and the second is prohibited by

Wainwright v. Greenfield, 474 U.S. 284,

106 S. Ct. 634, 88 L. Ed. 2d 623 (1986).

However, Bravo claims that his confession

and his initial waiver of Miranda rights

were involuntary because of his mental

condition and because of the medication.

We recently held that neither Doyle nor

Wainwright forbids the evidentiary use of

a defendant's invocation of his Miranda

rights to rebut defendant's contention

that he did not understand his rights.

In Carrillo we said:

[W]e believe there are limits on

how far an accused may stretch the

Wainwright principle. It strains

—~Teality to hold that a defendant

may invoke Miranda to stop further

questioning and later freely argue

that contemporaneous admissions

were involuntary because he could

not assert his Miranda rights. We

-A-68-

do not penalize defendant for

exercising his Miranda rights. We

do not believe the implicit

promise of freedom from penalty

recognized in Doyle and Wainwright

embraces the concept that

defendant may simultaneously claim

his rights and, without fear of

contradiction, claim he did not

understand the rights he claimed.

We hold that evidence of exercise

of Miranda rights was admissible

on the question of comprehension

of those rights.

Carrillo, 156 Ariz. at 131-32, 750 P.2é

at 889-90.

Additionally, in Carrillo, we held that

in order for a waiver of Miranda rights

to be voluntary, a defendant must

understand his rights and intend to waive

them and that the decision to waive must

not have been compelled by governmental

impropriety. We held that a trial

court's finding that a mentally retarded

defendant made a knowing and intelligent

waiver of his Miranda rights was

Supported by the interrogating officer's

testimony that defendant actually

-~A-69-

understood his rights, and by a police

psychologist's testimony that defendant

understood the Miranda warnings. Just as

in this case, the psychologist in

Carrillo based his opinion in part on the

defendant's exercise of his

constitutional rights during an

interrogation. 156 Ariz. at 130, 750

P.2d at 888. There was no error in the

receipt of the experts' opinions on

voluntariness at the pretrial motion to

suppress.

B. Trial Testimony

Before Dr. Gelardin testified at trial,

the trial court carefully instructed him

to avoid any reference to the suppressed

portion of the confession and to discuss

only his conclusions from studying the

confession. This approach, suggested by

the trial court, was approved in

Wainwright. In Wainwright, the state

argued to the Court that post-Miranda

-A-70-

silence is vital evidence of a

defendant's sanity and therefore should

be admissible. 474 U.S. at __, 106 S.

Ct. at 640, 88 L. Ed. 2d at 631-32. The

Court acknowledged that the state had a

legitimate interest in proving

defendant's rationality. The Court

suggested that that interest could be

constitutionally fulfilled “by carefully

framed questions that avoided any mention

of the defendant's exercise of his

constitutional rights to remain silent

and to consult counsel.” 474 U.S. at __,

106 S. Ct. at 640, 88 L. Ed. 2d at 632.

We believe that the trial court's

control over Gelardin's testimony kept

his testimony within constitutional

bounds. Moreover, Rule 703, Arizona

Rules of Evidence, provides that an

expert may base an opinion on facts or

data which “need not be admissible in

evidence.” State v. Mauro, 149 Ariz. 24,

~A-Ti~

32, 716 P.2d 393, 401 (1986), rev'd on

other grounds, o.8: wer was GS.

1931, 95 L. Ed. 2d 458 (1987). The

expert is also not precluded from using

evidence even if the evidence is

suppressed by the trial court. State v.

Mitchell, 106 Ariz. 492, 497, 478 P.2d

517, 522 (1978). Gelardin did not

mention the suppressed confession or

defendant's invocation of his rights;

therefore his testimony did not violate

any constitutional right of defendant.“

CONCLUSION AND DISPOSITION

The trial court's ruling concerning the

admissibility of the non-suppressed

“In a portion of the prosecution's

final argument to the jury, the

prosecutor arguably refers to the

defendant’s invocation of rights. In

fact, no such evidence was before the

jury. For the first time in his reply

brief, the defendant claims error by

reason of the prosecutor's argument.

Since we are remanding for other reasons

and have no reason to believe the

misstatement will be repeated, we do not

deal with it further.

-A-72-

portions of the defendant's statements is

affirmed, as is its ruling excluding the

Tapia statement. There was no error in

the receipt of the Gelardin and Kirkman

testimony at the suppression hearing or

at the trial. However, the failure of

the police to honor defendant's Miranda

rights require the suppression of the

Champion testimony. Defendant's

convictions are reversed and this cause

is remanded to the trial court for a new

trial in accordance with this opinion.’

*In making this remand, we are mindful

that the felony murder conviction is

apparently based on a jury finding that

defendant attempted an armed robbery of

Mrs. Wong and that the jury found

defendant not guilty of a completed armed

robbery of Mrs. Wong. We are also

mindful that no lesser-included offense

instruction was given on attempted armed

robbery. We have no way of knowing how

the parties may elect to proceed

hereafter. We caution the parties that

the order of remand herein should not be

read as impliedly deciding any legal

issues other than those expressly

resolved in this opinion.

-A~73-

JAMES MOELLER, Justice

CONCURRING:

FRANK X. GORDON, JR., Chief Justice

STANLEY G. FELDMAN, Vice Chief Justice

JAMES DUKE CAMERON, Justice

WILLIAM A. HOLOHAN, Justice

~A-74-

APPENDIX B

MOTION FOR RECONSIDERATION

IN THE SUPREME COURT

OF THE STATE OF ARIZONA

STATE OF ARIZONA, No. CR-86-0015-AP

Appellee, (Pima County

Superior Court

Cause Nos. CR-13184

and CR-13421)

ALEXSANDRO VINCENTE

BRAVO, MOTION FOR

RECONSIDERATION

Appellant.

ee ee ee ee ee a ee

The State of Arizona hereby moves this

Court to reconsider the opinion rendered

on September 30, 1988, for the reasons

Stated in the following Memorandum of

Points and Authorities.

DATED this 5th day of October, 1988.

Respectfully submitted,

ROBERT K. CORBIN

Attorney General

/S/ Crane McClennen for

PAUL J. McCMURDIE

Assistant Attorney General

Criminal Division

Department of Law

fei a. Spent OD Ny 2

1275 W. Washington, lst Floor

Phoenix, Arizona 85007

Telephone: (602)255-4686

(State Bar Membership

No. 010386)

Attorneys for APPELLEE

MEMORANDUM OF POINTS AND AUTHORITIES

Appellee believes the Court's opinion,

dated September 30, 1988, is in error

—

based on the following:

A. The United States Supreme Court

has held that evidence derived

from a Miranda violation is not to

be suppressed; therefore, this

Court erred by holding to the

contrary.

In this Court, appellant argued that

his statements made to the police were

involuntary and therefore in violation of

the Fifth Amendment. State v. Bravo,

No. CR-86-0O015-AP, slip op. at 12-17

(Ariz.Sup.Ct., Sept. 20, 1988). This

Court properly rejected this contention.

Id. at 17. Appellant likewise argued

that the use of the testimony of Danny

Champion, whose identity was learned by

the police in violation of Miranda, was

in violation of the Fifth Amendment and

should have been suppressed. (Opening

Brief at 13-18.) This Court held that,

because Champion's identity was learned

through a Miranda violation, Champion's

testimony must be suppressed as a “fruit

of the poisonous tree" because there was

insufficient evidence to “dissipate the

taint.” Id., slip op. at 17-30. The

Court is in error in this holding as the

"fruit of the poisonous tree” doctrine

does not apply to Miranda violations.

Oregon v. Elstad, 470 U.S. 298, 305-08

(1985); Michigan v. Tucker, 417 U.S. 433,

446 (1974).

In Michigan v. Tucker, supra, the Court

was asked to extend the fruit of the

poisonous tree doctrine of Wong Sun v.

United States, 371 U.S. 471 (1963), to

Suppress the testimony of a witness for

the prosecution whose identity was

discovered as the result of a statement

taken from the accused in violation of

Miranda. Michigan v. Tucker, supra, 417

U.S. at 446-47. The Court rejected the

argument holding that, because there was

no actual infringement of the suspect's

constitutional rights, the case was not

controlled by the doctrine expressed in

Wong Sun that fruits of a constitutional

violation must be suppressed. Id., 417

U.S. at 451-52.

The United States Supreme Court

affirmed the Michigan v. Tucker analysis

in Oregon v. Elstad, supra. The issue in

Elstad was whether a confession made

after the police gave a suspect proper

Miranda warnings was inadmissible on the

grounds that the police had obtained a

Prior unwarned admission from the

Suspect. In considering the issue with

respect to the fruit of the poisonous

tree doctrine of Wong Sun, the Court made

clear that a violation of Miranda is not

a violation of the Fifth Amendment

itself. Id., 470 U.S. at 306-07.

Rather, the Court,noted that Miranda

established a nonconstitutional

prophylactic rule, the violation of which

creates an irrebuttable presumption of

coercion that is applicable in only a

limited number of circumstances. Id.

When an unwarned statement is used in

Situations when the presumption does not

apply, “the primary criterion of

admissibility [remains] the ‘old’ due

process voluntary test.” Id., 470 U.S.

at 307-08 (citations and quotations

l. For instance, while the presumption

requires suppression of unwarned

statements for purposes of the state's

Case-in-chief, the presumption does not

bar introduction of the incriminating

Statements for impeachment purposes on

cross-examination. See Harris v. New

York, 401 U.S. 222 (1971).

a = =

omitted). Based on the foregoing, and

relying heavily on Michigan v. Tucker,

supra, the Court held that, when there is

no actual infringement of a suspect's

constitutional rights, Miranda violations

do not require the exclusion of

derivative evidence. Id. The Court

stated that this principle applies

regardless of whether the alleged fruit

of the Miranda violation is a witness,

article of evidence, or the accused's own

voluntary testimony. Id., 470 U.S. at

308.

Courts that have been asked to suppress

derivative evidence based on Miranda

violations after Elstad have uniformly

stated that the exclusionary rule does

not apply to such evidence. Unit

States v. Cherry, 759 F.2d 1197 (5th Cir.

1985); United States v. Bengivenga, 845

F.2d 593 (5th Cir. 1988); United States

v. Johnson, 816 F.2d 918 (3d Cir. 1987

=Be-¢«

Martin v. Wainwright, 770 F.2d 918 (i1lth

Cir. 1985); State v. Wethered, No.

54357-7 (Wash.Sup.Ct., May 12, 1988);

Bush v. State, 523 So.2d 538

(Ct.Crim.Apps. Ala. 1988); In re: Owen F,

70 Md.App. 672, 523 A.2d 627

(Ct.Spec.App. Md. 1987); State v.

Dellorfana, 128 N.H. 628, 517 A.2d 1163

(N.H. 1986). In United States v. Cherry,

supra, the Fifth Circuit Court of Appeals

was faced with a second appeal of

Cherry's conviction. In the first

appeal, the court had held that

derivative evidence from a Miranda

violation must be suppressed. Cherry was

again convicted and appealed. On the

second appeal, the court stated:

Our statement in Cherry I that

Cherry's consent to the second

search was the tainted produce of

the violation of his Miranda

rights does not survive the

Supreme Court's holding in

Elstad. While Cherry's confession

and other incriminating statements

= =

remain inadmissible under the

prophylactic rule, the validity of

Cherry's consent and the

admissibility of the derivative

evidence depend solely on whether

they are the product of an actual

violation of a constitutional

right.

United States v. Cherry, supra, 759 F.2d

at 1210 (emphasis added).

In Martin v. Wainwright, supra, the

court was faced with a situation where

the police failed to honor the suspect's

request to “cut off" questioning. Id.,

770 F.2d at 928. The court held that the

portion of the statement made after the

request was made was in violation of

Miranda and was to be suppressed. Ild.,

770 F.2d at 924. The court held,

however, that this portion of the

Statement was still “voluntary” and not

in violation of the Fifth Amendment.

ia. ve. f.20: at- 325. Therefore,

derivative evidence from the Miranda

= =

violation was not subject to the

exclusionary rule. Id., 770 F.2d at 928.

On appeal, appellant asserted that the

statements given, and the evidence

derived from those statements, were in

violation of his Fifth Amendment rights.

(Arguments I and II.) The state

responded by arguing that the statements

made by appellant were voluntary, and

that if involuntary, they need not be

excluded under the test of United States

v. Hooton, 662 F.2d 628 (9th Cir. 1981).

The state noted, however, that in

Michigan v. Tucker, supra, the Court held

that a Miranda violation did not warrant

the suppression of testimony from a live

Witness derived from the violation.

(Appellee's Answering Brief at 26, n.5.)

In its opinion, this Court found the

Statements were voluntary under the Fifth

Amendment, but ordered the derivative

evidence from the Miranda violation

-B-9-

suppressed. Slip op. at 39. In ordering

the suppression, the Court relied on Wong

Sun v. United States, supra; United

States v. Ceccolini, 435 U.S. 268 (1978);

and various other state and federal

cases. However, in each of the cases

cited by this Court, there was an actual

constitutional (Fourth or Fifth

Amendment) violation_of the accuseds'

rights. Not one of the cited cases

stands for the proposition that a Miranda

violation invokes the “fruit" doctrine of

Wong Sun. Given Tucker, Elstad, and the

cases cited above, it is clear that Wong

Sun does not apply to Miranda

violations. Therefore, if appellant's

statements are “voluntary"’ as this

2. There is nothing in the record which

would indicate that appellant's will was

overborne by the police when they did not

cut off the questioning. Martin v.

Wainwright, supra. Appellant did not

testify or claim that he desired that the

questioning cease because he no longer

-f-10-

Court found them to be, this Court should

withdraw its opinion, dated September 20,

1988, and reissue an opinion in

conformity with Michigan v. Tucker, and

Oregon v. Elstad, affirming the

conviction. =

B. Assuming this Court maintains an

“Arizona” rule providing that

derivative evidence from a Miranda

violation can be suppressed, this

Court has misapplied United States

v. Ceccolini and United States v.

Hooton, and has failed to defer to

the discretion of the trial court.

In United States v. Ceccolini, supra,

the Court held that, in applying the

wanted to talk with the police. The tape

clearly indicates appellant did want to

talk with the officers, but was

physically tired. Although appellant

indicated he wanted the questioning to

cease, he freely gave answers to

non-threatening questions until his

medication became intolerable. At that

point, appellant refused to answer any

further questions. The entire statements

were voluntary and not in violation of

the Fifth Amendment. Martin v.

Wainwright, supra. If this Court has

concerns over this issue, it should

remand for an evidentiary hearing.

United States v. Cherry, supra.

-B-11l-

“poisonous tree doctrine” to live-witness

testimony, the courts should consider

(1) the length of the road between the

illegal action and the testimony of the

witness at trial, (2) the degree of free

will exercised by the witness, and

(3) the fact that the exclusion of the

witness’ testimony “would perpetually

disable a witness from testifying about

relevant and material facts.” United

States v. Ceccolini, supra, 435 U.S. at

273-78; United States v. Hooton, supra,

662 F.2d at 632. The Court in Hooton

stated that, when police misconduct does

not induce the witness' cooperation, the

testimony will not be suppressed even

though the illegal activity was one step

in a series of events that led to the

witness testifying. United States v.

Hooton, supra; United States v. Leonardi,

623 F.2d 746, 752 (2d Cir.), cert.

denied, 447 U.S. 928 (1980). In

-B-12~

determining if police misconduct

encroached on the witness' free will, the

trial court should consider: (1) the

willingness of the witness to testify;

(2) the role played by the

illegally-obtained evidence in gaining

the witness’ cooperation; (3) the

proximity between the illegal behavior,

the witness’ decision to cooperate and

the actual testimony at trial; and

(4) the police motivation in engaging in

the improper conduct. United States v.

Hooton, supra. As such factors are

factual in nature, deference should be

given to the trial court's findings. See

State v. Chapple, 135 Ariz. 281, 660 P.2d

1208 (1983). The trial court made the

following findings regarding the issues

concerning the witness’ free will:

1. Police Motivation. The police were

investigating a 2-year-old homicide and

were trying to determine whether

-B-13-

appellant was involved. The trial court

found the following:

I find that the police were

interested in trying to determine

if in fact this was just a person

who was making a statement

regarding that incident from which

he could have obtained the

information either from the

newspapers or from having attended

Tucson High, or whatever, and in

an attempt to determine whether or

not they were to exclude this as

some type of attention-getting

device or a statement made by a

person who had given some

indication of being mentally ill

at one time. So, I don't think at

that point the motivation was

necessarily directed at trying to

obtain the identification of a

witness that would help establish

the State's case."

(R.T. Of Nov. 21, 1985, at 1-2, emphasis -

added.) This Court rejected the trial

court's factual finding and inserted

instead an evil motive not found by the

trier-of-fact. Such an evil motive is

clearly not borne out by the record.

While the police did ask questions that

led to Champion's name, such questioning

was necessary so the police could check

~§~t4-

to see if appellant's story was true.

While such a scenario is in violation of

Miranda, the state takes exception with

this Court's factual finding that it was

improperly motivated, and asserts that

such a finding has no support in the

record.

2. Proximity between the illegal

behavior and the witness’ decision to

cooperate and testify. While there was

approximately 18 months from the improper

police behavior that led to the

suppression of appellant's statements and

the time of the witness’ testimony at

trial, the decision by Mr. Champion to

cooperate was only weeks after the police

misconduct. The trial court found,

however, in resolving this factor, that

the fact that the witness did not have to

testify, and apparently decided to

proceed with the testimony even after 18

-B-15-

months had passed, would attenuate the

illegal behavior. (Id. at 2-3.)

Again this Court, without the benefit

of observing the witnesses, supplants the

trial court's finding. This Court states

"he [Champion] opened himself up to

Significant harm if he refused to

testify." At the time the police talked

with Champion, they promised him that he

would not be charged if he talked with

them about the La Quinta robbery. Any

statements made by Champion regarding La ©

Quinta could never be used to prosecute

him for the La Quinta robberies.

Champion was represented by counsel and

knew that fact. There is nothing in the

record that supports this Court's

conclusion that Champion could be

prosecuted for the La Quinta robberies.

Furthermore, Champion stated when first

questioned, “If I wouldn't have been

involved [in the La Quinta robbery], I

-B-16-

would have called the cops on him to tell

you the truth.” This Court's findings

are speculative and should not replace

those of the trial court.?®

3. The role played by the

illegally-obtained evidence in gaining

the witness‘ cooperation. This criteria

weighed against the state as the

illegally-obtained evidence led the

police to the witness and was used to

ensure the witness' cooperation.

4. The willingness of the witness to

testify. The trial court believed the

testimony of the police officers:

[T]hat there was no indication

that [Champion] was to be charged

unless he made a statement. Part

of the reason I find that is --

find that way is because two weeks

later when he had really no

motivation whatever but, I guess,

trying to clear his conscience,

Champion comes in and tells [the

detectives] statements about what

the defendant allegedly stated to

3. See also Finding No. 4, infra.

«B-17-

him regarding the homicide case.

That's one factor I'm considering.

Number two, the -- at the time

this is occurring, the police

officers had really no -- no

evidence whatsoever or sufficient

to arrest the Witness Champion for

the robbery at La Quinta, had no

probable cause.

And we have the witness -- the

testimony of two witnesses, police

officers, who indicated nothing of

that nature was mentioned; that

what in fact was mentioned was

that it in fact he had been -- had

not been the trigger man or the

one with the gun, that he would

not be charged.

Seems to me that that's a more

plausible approach than saying

when they didn’t have probable

Cause to arrest “We're going to

arrest you if you don't cooperate."

In addition, I considered the

fact that apparently that was the

first time such a statement had

been raised by Mr. Champion,

to-wit: That he had been

threatened, although the case has

been pending and apparently he has

made statements to counsel and

Other folks prior to this time.

And it seems to me that -- also,

the pressures that he must feel at

this point to be testifying

against a person who was a friend,

-B-18-

as he indicated, for approximately

five years before this whole

business occurred.

(R.T. of Nov. 21, 1985.) This Court

again disregards the above findings, and

speculates that Champion had no other

options. Nowhere does such a hypothesis

find credence in the record. Again, this

Court merely second-guesses the trial

court.

The trial court then balanced the

findings and concluded that under Hooton

and Ceccolini, the costs of exclusion

outweighed its benefit and denied the

motion. This Court dispensed with

balancing the costs and merely stated

that such evidence should be excluded

based on this Court's new factual

findings. Clearly, justice is not served

by the short shrift this Court gives such

an analysis. As stated by the United

States Supreme Court, "“[{A] living witness

is not to be mechanically equated with

-B-19-

the proffer of inanimate evidentiary

objects illegally seized .... [T]he

living witness in an individual human

personality whose attributes of will,

perception, memory and volition interact

to determine what testimony he will

give.” United States v. Ceccolini, 435

U.S. 268, 277 (1978), quoting from Smith

v. United States, 117 U.S.App.D.c. l,

3-4, 324 F.2d 879, 881-82 (1963). This

Court's mechanical application of the

Hooton test fails to take into

consideration the very concept that makes

the suppressing of live witnesses unique

under the exclusionary rule. Live

witnesses should not be suppressed unless

State's violation of the accused's

constitutional rights coerce the witness

into testifying. United States v.

Hooton, supra. No such coercion can be

found in this record.

-B-20-

CONCLUSION

Based on the foregoing, the state

requests that this Court reconsider its

opinion dated September 20, 1988, and

affirm the conviction.

DATED this Sth day of October, 1988.

Respectfully submitted,

ROBERT K. CORBIN

Attorney General

/S/ Crane McClennen for

PAUL J. MCMURDIE

Assistant Attorney General

Attorneys for APPELLEE

COPIES of the foregoing mailed

this 5th day of October, 1988, to:

GEORGE HASKEL CURTIS

Curtis & Cunningham

5610 East 22nd Street

Tucson, Arizona 8571l

/S/ Crane McClennen

CRANE MCCLENNEN

7593d clp

CRM86-0274

-B-21-

APPENDIX C

ORDER OF THE ARIZONA SUPREME COURT

SUPREME COURT

STATE OF ARIZONA

201 WEST WING STATE CAPITOL

1700 WEST WASHINGTON

PHOENIX, ARIZONA 85007-2866

TELEPHONE (602) 255-4536

November 10, 1988

RE: STATE OF ARIZONA vs. ALEXSANDRO BRAVO

Supreme Court No. CR-86-0015-AP

Pima County No. CR-13421/13184

GREETINGS:

The following action was taken by the

Supreme Court of the State of Arizona on

November 8, 1988, in regard to the

above-referenced cause:

ORDERED: Motion for Reconsideration =

DENIED.

Copy of Order Affirming in Part, Reversing

in Part and Remanding for New Trial

(Mandate) enclosed.

DAVID R. COLE, Clerk

TO:

Hon. Robert K. Corbin, Attorney General,

1275 W. Washington, Phoenix, AZ 85007

ATTN: William Schafer, Esq. and

Paul J. McMu iv, Esq.

George H. Curtis, Esq., Curtis &

Cunningham, 5610 E. 22nd Street,

Tucson, AZ 85711

Alexsandro Bravo, Box B-52579, Arizona

State Prison, Florence, AZ 85232

Stephen D. Neeley, Esq., Pima County

Attorney, 110 West Congress, Tucson,

AZ 85701

ee oe

APPENDIX D

APPELLANT'S OPENING BRIEF

STATE

STATE OF ARIZONA,

Plaintiff,

vs.

ALEXSANDRO VINCENTE

BRAVO,

Defendant.

[Dated August 8, 1986]

IN THE SUPREME COURT

OF ARIZONA

No. CR-86-0015

(Pima County

Superior Court

#CR-13184 and

CR-13421)

Nee ee Oe ee Se”

APPELLANT’

S OPENING BRIEF

CURTIS & CUNNINGHAM

Attorneys at Law

‘i * om

GEORGE HASKEL CURTIS

Attorney for Appellant

THE CONFESSION OBTAINED AND USED BY THE

STATE WAS INVOLUNTARILY GIVEN, THEREBY

OBTAINED IN VIOLATION OF THE FIFTH

AMENDMENT OF THE UNITED STATES

CONSTITUTION.

As previously related, Det. FRANK

MARTINEZ was called down to interview

appellant on April 17, 1984, while

appellant was incarcerated in the Cochise

County Jail. When appellant was advised

of his rights, he stated that he did not

want to say anything to the officer (tr.

11/26/85, p. 9). Shortly thereafter, he

agreed to talk, waived his rights, and

stated to the detective that he shot an

elderly lady, possibly oriental, in

Tucson, perhaps in 1982. (Tr. 11/26/85,

Pee eee oe

athaten

When that interview was concluded, Det.

PERRY LOWE, and Det. GONZALES of the

Tucson Police Department traveled to

Bisbee and also took a statement of

appellant's, this time taped, still on

April 17, 1984. No notice was given

until the following day to appellant's

attorney that any such statement was

being taken.

Appellant strongly urges this court to

hold that such confession, taken of a

severely mentally disturbed person, was

involuntary and obtained in violation of

the Fifth Amendment-to the United States

Constitution. By permitting use of such

statements, the law has taken the

blackjack out of the hands of the police,

only to be replaced by the hypodermic

needle.

The state was providing and injecting

appellant with a psychotropic medicine

= >

—

designed to cause appellant to become

more manageable, and to lessen one's

suspicions.

"Q. It is used to lower the

Suspicions that are considered to

be undue suspicions in a paranoid

schizophrenic, I take it?

A. That’s cight.

Q. That's one of the sided [sic]

effects when someone's suffered

from psychosis, particularly

paranoid schizophrenia?

A. That*s righkt.*

That testimony was given by the State's

own psychiatrist, DR. EDWARD S.

GELARDIN. (tc. 16726765, B. 62.)

The question of the State's ability to

first treat, and then benefit from, the

designed effect of the drugs is of

Significant proportions with today's ever

increasing medical technology. At what

point is the line drawn in use of

statements given while under the

influence of these psychotropic

medications.

=) Pe

There is no question that confessions

re prima facie involuntary and the State

ears the burden of persuasion that one

s the product of a free and voluntary

ali. -Stene ©. Benect; i239 Ariz. 35, 579

'.2d 542/1978).

Clearly, appellant continued to suffer

i psychotic delusional state of mind.

(fhis was confirmed by the Cochise County

Jail's nurse, NANCY KIRKMAN, (tr.

10/28/85, p.24, lines 21-25). The day

after appellant gave his statement,

1S. COUSEY found him to still be

jisoriented, confused, and preoccupied.

(Tr. 11/27/85, p.54, lines 17/18). This

nental state was a direct result of a

"blantantly" [sic] psychotic state of

nind, probably paranoid schizophrenia.

(Tr. 11/27/85, p.12, lines 20-25).

As DR. DAVID GURLAND testified,

appellant was under the influence of

sedating medication, still in a very

jisturbed state, at- the point of the

juestioning. A false belief was a

jefinite possible symptom of such state

of mind. (Tr. 11/27/85, p.18).

Appellant requests this Court, as it

jid in State v. Claborne, 142 Ariz. 335,

590 P.2d 54, (1984), to review the tape

and transcript of the statement. That

statement is the product of a mentally

ill person, even then experiencing severe

ohysical reaction from the medication,

one who had no ability to resist the

questioning.

On four occasions, once to

DET. MARTINEZ, and three times on the

tape, appellant stated he did not want to

answer questions. His inability to

maintain that posture is a product of his

psychotic state and the medication's

effects. His continued participation on

the tape evidences an inability to

exercise his will, which was anything but

“free” at the time. As reflected on the

tape, he never answered the question as

to whether he understood and desired to

waive his right to remain silent.

JUSTICE FRANKFURTER, in his plurality

opinion in Culombe v. Connecticut, 367

U.S. $68, 81 S.Ct. 1860, 6 L.Ed. 1037

(1961), wrote an impressive paragraph

quite appropriate to this case. He wrote:

"At the other pole is a cluster of

convictions each expressive, in a

different manifestation, of the

basic notion that the terrible

engine of the criminal law is not

to be used to overreach

individuals who stand helpless

against it. Among these are the

notions that men are not to be

imprisoned at the unfettered will

of their prosecutors, nor

subjected to physical brutality by

officials charged with the

investigation of crime. Cardinal

among them, also, is the

conviction, basic to our legal

order, that men are not to be

exploited for the information

necessary to condemn them before

the law, that, in Hawkins' words,

a prisoner is not “to be made the

deluded instrument of his own

conviction.” 2 Hawkins, Pleas of

the Crown (8th ed. 1824) 595.

This principle, branded into the

consciousness of our civilization

by the memory of the secret

inquisitions, sometimes practiced

with torture, which were borrowed

briefly from the continent during

the era of the Star Chamber, was

well known to those who

established the American

governments. Its essence is the

requirement that the State which

proposes to convict and punish an

individual produce the evidence

against him by the independent

labor of its officers, , [sic] not

by the simple, cruel expedient of

forcing it from his own lips.”

(Emphasis added.)

The totality of the circumstances

2vidence that appellant's will was

»verborne by the following factors:

a. Psychotic delusional state of

mind.

b. Voice hallucinations that told

him what to do. coe

c. Heavily medicated by a drug

designed to reduce suspicion

and induce a state of trust.

Ambivalence in decision.

e. Continued disorientation for

the period of April 11, 1984

through April 18, 1984.

f. His almost “catatonic” state

on April 16th.

ointhn

g. Failure of notification of his

attorney.

h. Initial introduction as

"friends", relating to the

police detectives.

i. His failure to specifically

waive his right.

j. His repeated request not to

answer additional questions.

State v. Edwards, 111 Ariz. 357, 529

P.2d 1174, (1975), summed up the law in

suppressing a questionable confession as

follows:

“If the confession is the result

of a free choice of the

individual, then it may be used as

evidence against him, but if his

will has been overborne and his

Capacity for decision diminished,

then the use of his confession is

violative of the principles of due

process. Rogers v. Richmond, 365

me Aig ee es Pe a P

2d 760 (1960).”

Appellant requests this Court to hold

that confessions made while the

individual is acting under the influence

of drugs intended to increase trust and

lessen suspicions, are by definition

involuntary, in that the individual is no

longer exercising his free will.

Specifically, in the case at hand,

request is made to suppress all of

appellant's statements, as they all

occurred as a direct result of the

intended effects of the medication.

II '

THE USE OF THE TESTIMONY OF DANNY

CHAMPION WAS OBTAINED IN VIOLATION OF THE

FIFTH AMENDMENT TO THE UNITED STATES

CONSTITUTION.

The trial court ruled that from the

point on page 5 of the tape recorded

statement to the end, appellant's

constitutional right to end questioning

at any point had been violated, and the

remaining portion of that confession

could not be used in evidence.

EE A A a ES SE SON AR cr te ee

Disregarding the law of Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct. 1612, 16

L.Ed.2d 694 (1966) and the twenty years

of cases after that, the officer in

guestion, in as open and insulting a

manner aS possible to the laws of the

United States, completely ignored

appellant's request to end the

questioning. The officer took it upon

himself' to violate the law and to attempt

to profit therefrom. Unfortunately, he

succeeded at the trial level.

Contained in that illegally obtained

portion of the contession is the first,

and only, reference the police received

concerning the possible second assailant

in the Tinker case, that being the name

of DANNY CHAMPION.

After a defense request to suppress the

testimony of DANNY CHAMPION under the

doctrine of the “fruit of the poisonous

-D-11l-

tree”, the court permitted his

testimony. That testimony, truthful Or

not, was the only evidence which actually _

linked appellant to the TINKER case, as

there was no actual identification of

appellant, nor was his confession

concerning that crime able to be used, as

previously discussed.

Beginning with Wong Sun v. United

States, 371 U.S. 471, 86 S.Ct. 407, 9

L.Ed.2d 441 (1963), evidence obtained

from unlawfully gathered evidence may not

be used at trial, unless the challenged

evidence has become “so attenuated as to

dissipate the taint”, Nardome v. United

States, 308 U.S. 338, 60 S.Ct. 266, 84

L.Ed. 307 (1934).

The exclusion of witnesses has been

upheld to further the objections of Wong

Sun, supra. United States v. Socios, 590

F.2d 956 €1978).

-D-12-

The United States Supreme Court, in

United States v. Ceccolini, 435 U.S. 268,

98 S.Ct. 1054, (1978), set forth

constitutional guidlines [sic] for the

exclusion of witness testimony under the

“poisonous tree" doctrine.

These guidelines were also succinctly

set forth in United States v. Horton, 662

F.2d 628 (9th line, 1981). They were as

follows, (with a discussion of the

evidence as it relates to DANNY CHAMPION):

1. Willingness of witness to testify:

The free will of the witness coming

forward is significant. Hits testimony is

more readily lawfully used if he “steps

forward” and offers himself as a witness,

than if he remains in hiding and must be

threatened to testify.

MR. CHAMPION, for three years, remained

in hiding. He talked to the police only

after they came after him. As to. the

-D-13-

substance of his testimony, it is

significant to note the following:

11/20/85,

p. 98, lines 19-25, p. 99,

lines 1-2.)

“a.

Okay. At that time did you

tell the officers about the

incident at La Quinta back in

1981?

They tole [sic] me first.

They told you. What did they

tell you?

They told me what was going

on before -- what had been --

they gave me that -- Alex

Bravo's statement. They told

me from what -- not -- not on

tape, but they told me what

he had told them. And I just

agreed with them.”

Furthermore, he agreed to talk only

because:

5-12.)

"A.

(Tr. 11/20/85, p. 99, lines

Well, I don't recall. Like

for one, I never told neither

you two, but I was in a sense

forced to come down here

because Perry Lowe's partner,

when I got picked up, when I

went down to the Police

Department, he did state that

if I walked out of there and

talked to the attorney, I'd

get my ass busted. Excuse my

-D-14-

(Tr.

language, but that's what he

said.”

Det. LOWE admitted CHAMPION was “quite

hesitant” to say anything about the

La Quinta robbery. (Tr. 11/20/85, p.

144.)

This is hardly the public spirited

citizen that the police would have come

up with even without the illegally

obtained confession.

2. The significance of the illegally

obtained evidence in obtaining the

knowledge and testimony of the witness;

and

3. The proximity between the criminal

events, the alleged police conduct, the

in.tial witness contact and the trial

testimony.

In both of these points, the facts

Clearly disclose that but for the

continuation of the questioning, the

police would never have even questioned

CHAMPION, let alone have been able to

provide a story for him and to apply

pressure to “talk.” 2

Although the crime occurred December of

1981, the investigation still had no

leads and certainly none which involved

CHAMPION.

Furthermore, immediately after they

received the information about CHAMPION,

they brought him in and questioned him.

The information from CHAMPION directly

resulted from the police misconduct, and

occurred immediately following the

misconduct. There is no lapse of time to

show that the police did not desire to

profit from their actions. To permit

CHAMPION'S testimony is a signal that the

court condones this behaviour [sic].

-D-16-

4. The police motivation in the

misconduct.

On page 5 of the confession, continuing

to page 6, the following statements were

made by the appellant:

"A. Well, I don't wanna answer

anymore questions.

CG. What's that?

A. I already said what I could.

PL. Do you know RICKY GERMANY?

A. Uhmm. I'm not his friend

though.

PL. Why aren't you his friend?

A. Because .. . he doesn't like

me.

PL. When did he stop liking you?

A. When we started fighting.

PL. When was that?

A. I don't remember.

PL. That was after the shooting

or before the shooting?

A. After the shooting. No more

questions.

PL. OK, just relax.

A. I can't with that stuff.

PL. Can you lean back?

A. No.

PL. Stretchit [sic] out.

The questioning continued.

Of course, the prosecution was also

familiar with the guidelines set forth in

Horten, supra. As a result, testimony

was presented on this issue by Det. LOWE,

-D-17-

- Yr

t |

testimony which insults one's

intelligence. He claimed that the only

reason that he failed to comply with

appellant's repeated requests to cease

being questioned was because he needed

additional facts to confirm appellant's

involvement in the homocide [sic]. (Tr.

11/20/85, p. 150.)

First of all, this hardly shows

innocent mistake, as the purpose of a

confession is to prove involvement by the

person being questioned. Secondly, facts

had already been brought out as to where

the victim was shot, the location of the

store, the number of shots, the time of

day, etc. Third, after the request to

stop questioning was made, the iki wate

new area of the TINKER (La Quinta)

robbery was discussed. This was hardly

designed to elicit information confirming

the WONG case. Fourth, LOWE suggests

that actually he just didn't believe

-D-18-

appellant meant all questions, just about

the “particular thing” LOWE had asked him

petoees. Gee. 224720765, p. 151.)

Further, that appellant didn't seem to be

“strenuously” objecting (Tr. 11/20/85,

p.150). (Appellant was unaware that to

curtail questioning, a police officer had

to be convinced that a defendant was

"strenuously" objecting.)

Finally, however, the true motive of

LOWE was omitted as to why the

questioning continued. He simply felt,

due to the court system, he might be able

to get away with it. He states:

"A. I have been aware of the

Miranda decision and the

different rulings from

different courts and which is

admissible and which is not

admissible and when it can be

used and when it can't be

used.

And I believe -- if I believe

that I'm trying to protect

everyone's rights and find

out what is the truth, ! let

the judge make that decision.”

-D-19-

In other words, why abide by the law of

the land when a judge might let you get

away with it. The failure to stop

questioning after the repeated requests

by appellant is as open and flagrant 4

violation as has been seen in quite some

time. To suggest to the trial court that

this officer “innocently” continued

questions is an insult.

Appellant suggests in each section of

the guidelines the law clearly requires

that CHAMPION'S testimony be suppressed.

To rule otherwise effectively terminates

the exclusionary rule. The purpose of

that rule is not to exclude evidence, but

to see that police officers respect an

individual's constitutional rights. Such

was not the case herein.

-D-20-

APPENDIX E

APPELLEE'S ANSWERING BRIEF

[Filed October 27, 1986]

IN THE SUPREME COURT

OF THE

STATE OF ARIZONA,

Appellee,

-VS-

ALEXSANDRO VINCENTE

BRAVO,

Appellant.

STATE OF ARIZONA

NO. CR-86-0015

PIMA COUNTY

SUPERIOR COURT

CAUSE NOS.

CR-13184

AND CR-13421

Sl i dl i i ed

APPELLEE'S ANSWERING BRIEF

ROBERT K. CORBIN

Attorney General

WILLIAM J. SCHAFER III

Chief Counsel

Criminal Division

PAUL J. MCMURDIE

Assistant Attorney General

Department of Law

1275 W.. Washington,

lst Floor

Phoenix, Arizona 85007

Telephone: (602)255-4686

Attorneys for APPELLEE

ARGUMENTS

THE TRIAL COURT DID NOT ABUSE

ITS DISCRETION BY DETERMINING

THAT THE STATEMENTS MADE BY

APPELLANT WERE VOLUNTARY UNDER

THE DUE PROCESS CLAUSE AND,

THEREFORE, ADMISSIBLE.

Appellant contends that the confessions

btained and used by the state were

nvoluntarily given in violation of the

ifth Amendment due to the mental

isability of appellant and the

ledication prescribed by jail

hysicians. (Appellant's Opening Brief,

t 6-12.) Appellee disagrees

Before a confession can be used in the

(rial court, the state must show by a

preponderance of the evidence that the

fonfession was freely and voluntarily

ide. State v. Graham, 135 Ariz. 209,

660 P.2d 460, 462 (1983). At trial,

he trial court must look to the totality

tt the circumstances in evaluating the

lls Den

©...

handed

a |

—= «

—

poe

Cf)

hadhend

ae)

voluntariness of a confession. Boulden

vy. Holman, 394 U.S. 478, 89 S.Ct. 1138, ‘s

32 L.Ed.2d 433 (1969); State v. Graham,

supra. The totality of the circumstances

includes both the characteristics of the

accused and the details of the

interrogation. State v. Hensley, 137

Ariz. 80, 88, 669 P.2d 58, 66 (1983). In

assessing these factors, the trial court

must determine whether the confession was

the product of an essentially free and

unconstrained choice by its maker or

whether his will has been overborne and

his capacity for self-determination

critically impaired. Schneckloth v.

Bustamonte, 412 U.S. 218, 225, 93 S.Ct.

2041, 2047, 36 L.Ed.2d 854 (1973); State

v. Hensley, supra. Once the trial court

weighs and evaluates these circumstances,

nowever, its ruling will not be

overturned on appeal unless it is clear

effin Bee

and manifest error. State v. Graham,

Supra.

An accused's confession is coerced

where the will was overborne or the

confession not the product of a rational

intellect and free will. Townsend v.

Sain, 272 U.S. 293, 307, 63 S.Ct. 745,

754, 9 L.Ed.2d 770 (1963). The standard

of overbearance is applicable whether the

coercion is in the form of physical

intimidation, psychological pressure, or

drug-induced. Townsend v. Sain, supra.

A mental illness alone, however, will not

preclude the admission of an otherwise

voluntary confession unless the illness

rendered the declarant unable to

understand the meaning of the statements

;made. State v. Porter, 122 Ariz. 453,

156, 595 P.2d 998, 1001 (1979). Hence,

the test for voluntariness, in cases

where a defendant is under the influence

of narcotics or has mental disabilities,

is whether these problems render him

unable to understand the meaning of his

statements. State v. Clabourne, 142

ALiz. Zac, 282, 690 P.2G 54, 61 (1984);

Wolfrath v. La Vallee, 576 F.2d 965 (2d

Cir. 1978), cert. denied, 439 U.S. 933

(defendant's confession while under the

influence of morphine, demerol, and

sodium luminal was admissible given

testimony of his coherency during

questioning); People v. Kincaid, 87

Iil.2G@ 107, 57 111.Dec. 610, 429 N.E.2d

508 (1981) (fact that accused was under

the influence of haldol when he confessed

did not automatically render confession

inadmissible, but was a factor to

consider in determining if defendant's

will was overborne); Blanchard v. State,

247 Ga. 415, 276 S.E.2d 593 (1981)

(defendant's confession while under

influence of phencyclidine administe.ed

while in mental hospital was admissible

as he was capable of understanding

gravity of his action).

In the instant case, the following

evidence was presented to the trial court

regarding appellant's confessions:

Nancy Kirkman (called by the state,

R.T. of Oct. 28, 1985, a.m., at 4-49;

S.7.-08 OGt. 26, 1985, 2... at.4+ 31).

Ms. Kirkman, a counselor with the Cochise

County Sheriff's Department, stated that

she was present on April 4, 1984, when

appellant was booked in the county jail.

(Id., a.m. session, at 6.) Ms. Kirkman

stated appellant was very disturbed,

unable to communicate, and was literally

bouncing off the walls. (ig. 2 ¢,)

Initially, Kirkman believed appellant was

under the influence of PCP. (Id.) On

April 12, 1984, the county's psychiatric

counseling service put appellant on a

Psychotropic medication - haldol. (Id.

sentie

at 9.) An anticholenergic drug,

symmetrel, was administered to help

prevent side effects from the haldol.

(Id.) Haldol is a psychotropic

medication which clears abnormal

confusion and allows for communication.

(Id. at 12.) On April 16, 1984,

appellant's mental condition had

improved, and he was more reasonable and

communication was possible. (Id. at

11-12.) On April 17, 1985, eer

Officer Jack Willick brought appellant

into Kirkman's office and indicated that

appellant had stated he wanted to confess

to a crime. (Id. at 14.) Ms. Kirkman

took appellant into her office, and

Without being questioned, appellant told

Kirkman that he had lived with it long

enough and that he needed to confess to a

Crime -- that he had murdered a lady in

Tucson. (Id. at 14, 17.) Ms. Kirkman

Stated to appellant that whatever he said

to her concerning a crime or jail

security would not be held in confidence

and that she did not want to hear his

confession; but she would call a

detective if he wanted. (Id. at 15-16.)

Appellant indicated he wanted to talk to

the detective. (Id. at 16.) Ms. Kirkman

summoned a detective to her office.

(Id.) Ms. Kirkman then explained to

-appellant who was coming and that

whatever appellant said to the detective

could be used against him. (Id. at 18.)

Appellant was, however, “very determined

to make this confession." (Id.) ,

Detective Martinez arrived and he and

Kirkman explained to appellant in great

detail each of the rights under Miranda.

(Id. at 19.) Appellant elected not to

speak and Detective Martinez left the

room. (Id. at 20.) Martinez entered the

elevator to leave when appellant stated

“please make him come back, I want to

-R-2-

talk to him.” (Id. at 22.) From the

time Martinez left the room until

appellant requested his return, no words

were spoken between appellant and

Kirkman. (Id. at 22.) Martinez and -

Kirkman again explained to appellant his

Miranda rights. (Id. at 22-23.)

Appellant indicated he wanted to talk and

Kirkman left the room. (Id. at 25.)

Ms. Kirkman found appellant's

conversations and actions during the

incident on the 17th to be responsive and

appropriate under the circumstances, and

in her opinion appellant understood what

was happening. (Id. at 23-25.) During

the time appellant was with Ms. Kirkman,

there were no observable physical side

effects of haldol. (Id., p.m. session,

Jack Willick (called by the state, R.T.

of Oct. 21, 1985, p.m., at 40-89).

Officer Willick, a detention officer for

. -E-9-

Cochise County, stated that, prior to

April 17, 1984, he was unable to carry on

a normal conversation with appellant.

(Id. at 43.) On April 17, 1984,

appellant changed and Officer Willick was

able to engage in a normal conversation

with him. (Id. at 44-45.) At

12:15 p.m., appellant asked Willick if he

could make a telephone call. (Id.)

Willick escorted appellant to the

recreation room and appellant placed a

phone call without any assistance from

the jailer. (Id. at 46.) Appellant

engaged in a normal phone call for

approximately 10 minutes, whereupon he

was escorted back to his cell. (Id. at

46.) On the way back to his cell,

appellant and Willick engaged in light

conversation. (Id. at 48.) Appellant

hesitated upon entering his cell and

acted as if something was bothering him.

(Id.) Willick asked appellant if there

-E-10-

was anything he could do. (Id.)

Appellant indicated no, and Willick

stated if there was, to give him a call.

(Id.) At 2:15 p.m., appellant summoned

Willick to his cell. (Id. at 49.)

Appellant indicated to Willick that he

| vantiel to tell somebody about a very bad

thing he had done, which was bothering

his conscience, and stated, "I killed an -~

old Chinese woman in an armed rebbery in

ps Tucson." (Id. at 50.) Officer Willick

| asked appellant if he wanted to talk with

Ms. Kirkman the counselor. (Id.)

Appellant stated that he did wish to

speak with Ms. Kirkman. (Id.) Willick

escorted appellant to Kirkman's office.

(Id.) Mr. Willick indicated that during

| the time period he was with appellant on

April 17, appellant was alert and his

s conversation was easy to understand.

'{id. at $2.)

-E-1ll-

Frank Martinez (called by the state,

R.T. of Oct. 21, 1985, p.m., at 90-124).

Frank Martinez, Cochise County Detective,

stated that he had never met appellant

until on April 17, 1984, when he was

summoned to Nancy Kirkman's office to

take a statement regarding a crime. (Id.

at 91-92.) Upon entering the room,

Detective Martinez read appellant his

Miranda rights. (Id. at 95.) After

Martinez read each right, Ms. Kirkman

explained them to appellant, and

appellant indicated he understood.

(Id.) After all of the respective rights

were read, appellant indicated he did not

wish to speak with the detective. (Id.

at 100.) Detective Martinez honored

apellant's request and left the room.

(Id. at 100-01.) As Martinez entered the

elevator, Ms. Kirkman summoned Martinez

back to her office indicating appellant

-E-1l2-

nad changed his mind. (Id.) Detective

Martinez and Kirkman readvised appellant

of his rights and appellant stated that

he just wanted to get it off his chest,

waived his rights, and confessed. (Id.)

Detective Martinez stated that in the

30-45 minutes that he was with appellant,

appellant was responsive to all

conversations and seemed to understand

what he was doing. (Id. at 96, 102-05,

108.)

Perry Lowe (called by state, R.T. of

Oct. 28, 1985, p.m., at 78-112). Perry

Lowe, detective for Pima County, stated

that on April 17, 1984, Frank Martinez

telephoned him in Tucson and indicated

that he had an inmate in Bisbee that had

confessed to a homicide in Tucson. (Id.

at 79.) Detective Lowe and his partner,

Ed Gonzales, traveled to Bisbee to talk

with the inmate. (Id.) The detectives

talked with appellant and the entire

-E-13-

conversation was tape recorded. (Id. at

81.) See transcript of the conversation

in the appendix, infra. Detective Lowe

stated that, in observing appellant, he

appeared to be responsive and understood

what he was saying. (Id. at 82.)

Detective Lowe further stated, however,

that during the interview, appellant

appeared to be suffering physical

discomfort from the medication given

him. (Id. at 100.)

Edward Gelardin (called by the state,

R.T. of Oct. 28, 1985, p.m. session, at

35-77). Dr. Gelardin, a physician

Specializing in psychiatry, evaluated

appellant twice as a court-appointed

expert to determine appellant's

competency to stand trial. tam. @€ 37.)

The evaluations occurred on June 22,

1984, for Cochise County, and on

October 18, 1984, for Pima County.

(Id.) At the conclusion of both

-~E-14-

evaluations, Dr. Gelardin found appellant

competent to stand trial. (Id. at 38.)

Dr. Gelardin, after evaluating the

statements made by witnesses, appellant's

statements to him in his evaluation

regarding his confession, and after

listening to the taped confession,

concluded that on April 17, 1984,

appellant was capable of understanding

his statements and did, in fact,

understand them. (Id. at 39-40.) The

doctor found that the answers in the

taped confession indicated that appellant

was well oriented, that he tried to

protect himself at times and protect his

friends at other times. (Id. at 41.)

That the questions asked appellant tested

his memory and appellant's answers

compared well with the actual facts

indicating his memory and perception were

not distorted. (Id.) Dr. Gelardin

stated:

-E-15-

[I]t seems to: me that he well

understands what he's being asked,

and not only understands his

responses, but seems to have at

least some feeling for which

questions make him look bad and

which answers make him look bad --

which answers make him look good.

And also he has an ability to be

consistent with his story, because

there was one point where the cops

: were trying to put words in

his mouth, and he wouldn't let

them. .. . So that ability to

stick to one's story, you know,

not only implies his ability to

remember, but to remember what's

important and keep track of the

whole proceeding in a way.

(Id. at 41-42.) The doctor also noted

that appellant's consistent feelings of

guilt or uneasy conscience would imply

that he was aware that what he did was

wrong and that there would be tough

consequences from his confessing. (Id.

at 43.) Upon review of the entire

record, Dr. Gelardin could not find any

evidence that indicated that appellant

did not comprehend the statements made on

April 17, 1984. (Id. at 52.)

Dr. Gelardin stated the drug haldol will

-E-16-

remove paranoid undue suspiciousness and

allow a “calm, normal function of mind

without lowering [the] level of

consciousness." (Id. at 61-62.)

Susan Cousy (called by appellant, R.T.

of Oct. 15, 1985, at 6-52). Ms. Cousy,

Clinical Director of the Cochise

Community Counsel Services, stated that

on April 1l, 1984,_-she ordered that

appellant be placed on 5 milligrams of

haldol and 100 milligrams of symmetrel.

(Id. at 27.) Ms. Cousy did not see

appellant again until April 18, 1984,

where she found him to be “somewhat

disoriented and confused." (Id. at 28.)

John Calahar (called by appellant, R.T.

of Oct. 29, 1985, at 5-24). Mr. Calahar,

appellant's trial attorney on the Cochise

County charges, stated that on April 16,

1984, he interviewed appellant in the

Cochise County Jail. (Id. at 6.)

Mr. Calahar perceived appellant, during

the interview, to have difficulty

understanding the questions asked of him

and Calahar would have to re-ask the

questions. (Id. at 8.) Based on this

interview, Mr. Calahar believed that on

April 16, 1984, appellant was unable to

understand much of anything. (Id. at

15.) On cross-examination, however,

Mr. Calahar admitted that all of

appellant's answers to his questions were

responsive and accurate. (36, OG 29.)

Richard Hinton (called by appellant,

a.T.. o€ Oct. 21, 1965; 2.8. session, at

4-36). Mr. Hinton, a clinical

psychologist, stated that he had met with

appellant on September 25, 1984, for a

pre-Rule li screening, and on March 14,

1985, for a determination of competency

to be sentenced. (Id. at 5-6.) Upon

review of appellant's abnormal behavior

upon initial intake into the county jail,

and his subsequent action on April 17,

1984, Dr. Hinton concluded:

[IJ]£ [appellant] was demonstrating

all of the symptoms which we have

described, I would -- I would

conclude that he was psychotic and

therefore unable to competent --

not competent in any legal way at

that time, at the time that all of

those behaviors were being

demonstrated.

However, the description of him

is that he does appear to have

improvements and exacerbation of

his behavior. And during times of

improvement I personally have seen

him to be a person who was

competent and free of any

Significant indication of mental

illness.

So, uSing some backward

reasoning, I may conclude that he

was at [the time of his

confession] not showing any signs

of -- of psychosis as described by

Ms. Kirkman. And therefore, he

was competent.

(1a. at 23=24.3

David Rubin (called by appellant, R.T.

Of GGG. 21, 1965; O.m. session, at

2-38). Dr. Rubin, a psychiatrist, stated

that on May 10, 1984, he interviewed

appellant to determine his competency to

-~E-19-

stand trial. (Id. at 4.) Dr. Rubin,

based on his perception of appellant from

that interview, felt appellant's judgment

on April 17, 1984, would have been

impaired, but to what extent he could not.

say. (Id. at 10.) After listening to

the taped confession, however, Dr. Rubin

conceded that appellant's statements were

relevant, logical, and coherent. (Id. at

34-35.)

David Gurland (called by appellant,

R.T. o£ Oct. 15, 1965, at 52-88).

Dr. Gurland, a psychiatrist, stated that

he performed a court-ordered evaluation

of appellant on October ll, 1984. (Id.

at 54.) Based on the facts presented to

him, Dr. Gurland believed that, on

Apri:i 17, 1984, appellant had the mental

Capacity to understand only the right not

to answer any more questions. (Id. at

62.) Dr. Gurland noted, however, that

appellant's answers were responsive to

-E-20-

the questions asked. (Id. at 77.)

Dr. Gurland informed the court that

haldol, if effective, would organize

one's ability to grasp what was going on

around him. (Id. at 80.)

As noted earlier, the trial court,

after considering all of the evidence,

held that the haldol given appellant

placed him in a “normal” condition, that

appellant understood the meaning of his

statements, and the side effects of the

medication had no bearing on the

confessions. (R.T. of Nov. 4, 1985, at

7-8, 36-37.) The trial court's findings

are supported by the record on appeal.

Appellant disputes the trial court's

findings by arguing (1) it is a violation

of the due process clause for the state

to assist a mentally ill person by

placing him on psychotropic medication

that removes his abnormal paranoia,

rendering him in a normal condition, and

-E-21-

thereafter benefitting from that

treatment when the person confesses; and

(2) that given the totality of the

circumstances, the trial court was wrong

in finding that appellant's will was not

overborne.

In regards to appellant's first

contention, in Blackburn v. Alabama, 361l

U.S. i399, 207, 860 8.Ct. 274, 260, 4

L.Ed.2d 242 (1960), the United States

Supreme Court held the use of a

confession of an individual made while

insane violates the due process clause

because (1) the confession would be

inherently unreliable; (2) the lack of

rational choice of the accused; and

(3) that our system of criminal justice

Should not operate to take advantage of a

person in this fashion. In the instant

case, the trial court held the

confessions were made while appellant was

in a “normal” state. The question then

-E-22-

arises, “Does the ‘due process clause

prohibit the state from using an

otherwise voluntary confession if they

administered to a defendant a

psychotropic medication to render him

competent?"

In applying the Court's concerns as

stated in Blackburn to the case at bar,

due process does not mandate the

suppression of appellant's confessions.

Regarding reliability, while statements

made by an “insane” defendant are clearly

questionable, statements made by someone

who has regained normalcy are reliable.

Furthermore, the confession given by

appellant proved to be very reliable, as

he provided facts that only the

perpetrator would have known.

Concerning the lack of rational choice,

by definition a “normal” person is in the

position to either invoke his rights or

talk with the authorities. In the

-E-23-

instant case, the first two admissions of

guilt, to Detention Officer Willick and

counselor Kirkman, were at the initiation

of appellant and not in response to any

form of interrogation, indicating

exercise of will by appellant. Also,

appellant's statements regarding his need

to confess to alleviate the guilt he

felt, a common phenomenon, demenatitater

rational choice.

Finally, concerning the propriety of

allowing the state to operate in this

fashion, there is no evidence that

indicates the state administered the

haldol as a means to render appellant

more amenable to confess to the murder of

Mrs. Wong. On intake into the Cochise

County Jail, the state had no knowledge

that appellant was involved in those

Crimes and, without question, appellant

was in dire need of the assistance

rendered by the state. The state acted

appropriately under the circumstances,

and appellant's otherwise voluntary

confession should not be suppressed

because the state placed appellant in the

position to make a voluntary confession.

Appellant's second contention is that,

given certain factors, the trial court

abused its discretion in holding the

confessions were voluntary. Considering

the term “abuse of discretion,” this

Court has explained:

Something is discretionary because

it is based on an assessment of

conflicting procedural, factual or

equitable considerations which

vary from case to case and which

can be better determined or

resolved by the trial judge, who

has a more immediate grasp of all

the facts of the case, an

Opportunity to see the parties,

lawyers and witnesses, and who can

better assess the impact of what

occurs before him. Where a

decision is made on that basis, it

is truly discretionary and we will

not substitute our judgment for

-E-25-

that of the trial judge; we will

not second-guess.

State v. Chapple, 135 Ariz. 281, 297

n.18, 660 P.2d 1208, 1224 n.18 (1983)

(citation omitted). Determination of the

very existence and effect of all of

appellant's listed “factors"* would be

based on the assessment of the

conflicting factual considerations that

this Court described as “better

determined or resolved by the trial

judge.” The trial court did not abuse

his discretion by resolving the factual

considerations against appellant.

4. Only factor “g" (the state did not

notify defense counsel of appellant's

request to confess) wes not in dispute at

the evidentiary hearing. This Court has

held that there is no duty on the state

to notify counsel if the accused makes a

vOluntary waiver. Stcte v. Clabourne,

142 Ariz. 335,-341-42, 690 P.2d 54, 60-61

(1984). Therefore, tkis “factor” is

irrelevant.

-E-26-

THE TRIAL COURT DID NOT ABUSE

ITS DISCRETION IN HOLDING THAT

THE FIFTH AMENDMENT OF THE

- UNITED STATES CONSTITUTION DID

NOT REQUIRE THE SUPPRESSION OF

THE TESTIMONY OF DANNY CHAMPION.

Appellant contends that the trial court

erred after suppressing a portion of

appellant's confession to Detectives Lowe

and Gonzalez by not suppressing the

"fruit" of the suppressed confession, the

testimony of anny Champion.

(Appellan* s Opening Brief, at 13-18.)

“Appetlee disagrees.

It is an established principal of Ta ace aa

that third-party, live-witness testimony

can be a “fruit” under the “poisonous

tree doctrine,” under both the Fourth and

Fifth Amendments. See United States v.

Ceccolini, 435 U.S. 268, 98 S.Ct. 1054,

~ 55 L.Ed.2d 268 (1978); United States v.

Schaefer, 691 F.2d 639 (3d Cir. 1982);

United States v. Hooton, 662 F.2d 628

(9th Cir.), cert. denied, 455 U.S. 1004

(1981); United States v. Scios, 590 F.2d

956 (D.C. Cir. 1978).* The original

cases that marked the origin and

development of the tainted "fruit" of the

"poisonous tree doctrine” involved

violations of the Fourth Amendment

guarantee against unreasonable searches

and seizures. United States v. Massey,

437 F.Supp. 843, 855 (M.D.Fla. 1977).

The doctrine was also applied, however,

to the “fruits”" of a statement obtained

5. In Michigan v. Tucker, 417 U.S.

433, 94 S.Ct. 2357, 41 L.Ed.2d 182

(1974), the Court refused to apply the

"fruit" doctrine to a third-party, live

witness who was located through the use

of confession in violation of Miranda,

but otherwise voluntary. The Court noted

that the prophylactic Miranda rights were

only instituted to protect the right

against compulsory self-incrimination,

but were not themselves protected

rights. Id., 417 U.S. at 446.

in violation of an accused's Fifth

Amendment right. United States ex rel.

Hudson v. Cannon, 529 F.2d 890 (7th Cir.

1976). The United States Supreme Court

has relied, to a considerable extent, on

Fourth Amendment cases in determining

what evidence is excludable as tne fruit

of a coerced confession. Harrison v.

United States, 392 U.S. 219, 88 S.Ct.

2008, 20 L.Ed.2d 1047 (1968).

In United States v. Ceccolini, supra, a

police officer's illegal search of an

envelope in the defendant's flower shop

led to the discovery of the key

government witness in the defendant's

perjury trial. The Court held that the

degree of attenuation between the

illegality and the testimony was

sufficient to dissipate the connection.

The Court arrived at its conclusion by

balancing the benefits of the

exclusionary rule against its costs. The

Court heid that, in applying “poisonous

tree doctrine” to live-witness testimony,

the following material factors should be

considered: (1) the length of the road

between the illegal action and the

testimony of the witness at trial;

(2) the degree of free will exercised by

the witness; and (3) the fact that the

exclusion of the witness’ testimony

"would perpetually disable a witness from

testifying about relevant and material

facts, regardless of how unrelated such

testimony might be to the purpose of the

Originally illegal search or the evidence

discovered thereby." United States v.

Ceccolini, supra, 435 U.S. at 273-78;

United States v. Hooton, supra, 662 F.2d

at 632. In Hooton, the Court stated

that, where police misconduct does not

induce the witness‘ cooperation, the

testimony will not be suppressed even

though the illegal activity was one step

-E-30-

in a series of events that led to the

witness testifying. United States v.

Hooton, supra; United States v. Leonardi,

623 F.2d 746, 752 (2d Cir.), cert.

denied, 447 U.S. 928 (1980). In

assessing the effect of the illegal

activity on the witness' free will, the

trial court should consider: (1) the

willingness of the witness to testify;

(2) the role played by the

illegally-obtained evidence in gaining

the witness’ cooperation; (3) the

proximity between the illegal behavior,

the witness' decision to cooperate and

the actual testimony at trial; and

(4) the police motivation in engaging in

the improper conduct. United States v.

Hooton, Supra.

In the instant case, on November 4,

1985, the trial court suppressed

ippellant’'s statements from the point in

nis confession where he indicated that he

-E-3l-

did not want to answer any more

questions. (See Transcript of

Confession, appendix, infra.) Whereupon,

appellant moved for the suppression of

evidence derived from the suppressed

confession, namely the witness Danny

Champion. (Record on Appeal, Document

No. 126.) On November 20, 1985, the

trial court conducted an evidentiary

hearing regarding appellant's motion.

(R.T. of Nov.- 20, 1985, at 93-161,

183-212.) On November 21, 1985, the

trial court made the following findings

regarding the issues concerning the

Witness' free will:

1. Police Motivation. The police were

investigating a 2-year-old homicide and

were trying to determine whether

appellant “was just a person who was

making a statement regarding that

incident from which he could have

Obtained the information either from the

= > kc ee

newspapers or from having attended Tucson

High, Or whatever, and in an attempt to

determine whether or not they were to

exclude this as some type of

attention-getting device or a statement

made by a person who had given some

indication of being mentally ill at one

time. So, I don't think at that point

the motivation was necessarily directed

at trying to obtain the identification of

a witness that would help establish the

Stete’s case.” (R.T. Of Nov. 21, 1985,

at 1-2.)

2. Proximity between the illegal

behavior and the witness‘ decision to

cooperate and testify. While there was

approximately 18 months from the improper

police behavior that led to the

suppression of appellant's statements and

the time of the witness‘ testimony at

trial, the decision by Mr. Champion to

cooperate was only weeks after the police

-E-33-

—~misconduct. The trial court found,

however, in resolving this factor, that

the fact that the witness did not have to

testify, and apparently decided to

proceed with the testimony even after 18

months had passed, would attenuate the

illegal behavior. (Id. at 2-3.)

3. The role played by the

illegally-obtained evidence in gaining

the witness’ cooperation. This criteria

weighed against the state as the

illegally obtained evidence led the

police to the witness and was used to

ensure the witness‘ cooperation. (Id. at

4.)

4. The willingness of the witness to

testify. The trial court believed the

testimony of the police officers:

{[T]hat there was no indication

that [Champion] was to be charged

unless he made a statement. Part

of the reason I find that is --

find that way is because two weeks

later when he had really no

motivation whatever but, I guess,

-E-34-

trying to clear his conscience,

Champion comes in and tells [the

detectives] statements about what

the defendant allegedly stated to

him regarding the homicide case.

That's one factor I'm

considering.

Number two, the -- at the time

this is occurring, the police

officers had really no -- no

evidence whatsoever or sufficient

to arrest the Witness Champion for

the robbery at La Quinta, had no

probable cause.

And we have the witness -- the

testimony of two witnesses, police

officers, who indicated nothing of

that nature was mentioned; that

what in fact was mentioned was

that it in fact he had been -- had

not been the trigger man or the

one with the gun, that he would

not be charged.

Seems to me that that's a more

plausible approach than saying

when they didn‘t have probable

Cause to arrest "We're going to

arrest you if you don't cooperate."

In addition, I considered the

fact that apparently that was the

first time such a statement had

been raised by Mr. Champion,

to-wit: That he had been

threatened, although the case has

been pending and apparently he has

made statements to counsel and

other folks prior to this time.

-E-35-

ire vive ar —

eee : at _

id he

ae ae wisiel oe

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oy a ae

7 ri haar :

. Pa

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ee : (eS Ny

2, |

; m

<= : ee

= . pt

cas

ae ~ 7. i] ; = ¥

i ify - f 7

: (eae bats |

es L

ie ‘

‘eam : ‘> J a

Fes P c

: i dspo@ 5 ~

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A to a

- es é . Hise ‘WSL

" ><; a] be

j :

o i f :

hap | Fl + are <2) p

And it seems to me that -- also,

the pressures that he must feel at

this point to be testifying

against a person who was a friend,

as he indicated, for approximately

five years before this whole

business occurred.

(Id. at 4-5.) The trial court then

balanced the findings and concluded that

under Hooton and Ceccolini, the costs of

exclusion outweighed its benefit and

denied the motion.

On appeal, appellant asserts not that

the trial court erred in applying the

wrong standard of law, but that its

factual determination in reaching its

conclusion was in error. The trial

court's determinations were not clearly

erroneous and should be affirmed.

First, concerning the finding that the

police did not continue the interrogation

to locate additional witnesses, as noted

by the trial court, this is a unique

factual setting where a murder is

unsolved for over 2 years. The

-E-36-

detectives were summoned to take a

confession from an individual who, until

recently, had been engaged in abnormal

psychiatric behavior. The confession

proceeded until, due to the obvious

physical discomfort of appellant, he

requested that questioning cease. As the

trial court noted, at that point in time,

the police were unaware that appellant

had supplied them with any information

that was not available to the general

public. This was not the first

confession to this crime by an individual

and, in order to ensure that they would

not waste their time or detain appellant

further on the basis of an erroneous

confession, they pressed appellant about

facts known to them that only the

perpetrator would have known. While such

action is improper police conduct, it was

not designed to acquire a witness'

testimony, and the trial court was

-E-37-

correct in finding this factor. In

regards to the proximity between the

llegal behavior and the witness’

iecision to cooperate and testify, the

trial court correctly determined that

‘his factor weighed for the state as the

witness had had over 18 months to refuse

to cooperate. The fact Mr. Champion

cooperated in all interviews and actually

contacted the police in regards to

certain testimony indicates that he did

want to testify. Concerning the role

olayed by the illegally-obtained evidence

in gaining the witness‘ cooperation, the

trial court found it weighed against the

State. However, Mr. Champion's decision

-to come forward and offer additional

evidence to alleviate his conscience

would mitigate this finding. Finally,

the witness‘ willingness to testify was

in dispute. The trial court, after

evaluating all of the evidence, logically

-E-38-

held that Mr. Champion's actions

indicated he was willing to testify, even

though he began to digress when

testifying in front of appellant. The

trial court's finding was not in error.

APPENDIX F

TRANSCRIPT OF APPELLANT'S

TAPED CONVERSATION

TRANSCRIPT OF APPELLANT'S

TAPED CONVERSATION

Ed Gonzalez

roy

M: Frank Martinez

/ Perry Lowe

(3 Appellant

DET. FRANK MARTINEZ: ALEX, I'd like to

ntroduce you to a couple of my friends,

)K? This is MR. GONZALES, ED GONZALES.

EG How you doing, ALEX.

FM And this is MR. LOWE. They're both

‘From the Tucson Police Department, they

vould like to speak to you, OK?

PL Is that all right. OK.

EG Thanks, FRANK.

PL Thank you FRANK. ALEX, like I

aid, I‘m a detective with Tucson Police

epartment.

A Yes.

PL And we're down here because you

alked to FRANK earlier. He advised you

f your rights. You're aware of those

ights? You know you have the right to

emain silent. Do you want to talk to

Ss?

A I already talked to him.

PL No. Do you want to talk to us

bout it?

A That I shot that lady?

_ <P

PL Yeah. Basically.

A I did.

PL OK, when did you do that, do you

want to talk to us about that?

A Why bother? I did it.

PL You did it?

A Yeah.

PL Why did you do it?

A Cause I felt trapped and I shot her.

PL Do you want to talk though?

A i just @ig@ it, {| . . « walked in

there and did it. What else is there to

be said?

PL How old were you at the time?

A Fifteen.

PL What? Were you going to school?

EG Where were you going?

A To Tucson High.

PL OK, what classes were you taking

then, do you remember?

A Iwas taking business law. I forgot

the rest.

PL OK, where were you living?

A With my mom.

PL What's her name?

aPubia

A EVELYN BRAVO.

PL EVELYN BRAVO? OK, where does she

live now?

A The same address that I gave that

man.

PL What was that?

A 426 S. Westmoreland.

PL You felt trapped. What trapped you?

A She did. She .. . I told her to

give me the meney and she didn't

she came towards me and kept coming and I

closed my eyes and I shot her. I shot

her.

EG Where did you shoot her?

A I don‘t know. I didn‘t look.

PL You didn't 100k?

EG Did you tell Detective MARTINEZ

that you had shot her in the head?

A I just shot her like that, boom.

PL How many times?

A Twice, I think.

PL You think twice? Who was with you?

A Iwas by myself.

PL You were by yourself? What time

A It was in the morning. Early in

morning.

PL Early in the morning?

A About nine or something like

PL Was it between classes? Do

remember what class you came from?

EG I can't hear you.

PL Where did you get the gun?

A £ store it.

PL Where did you steal it from?

alia Duc

that.

you

From the Desert Inn?

From a car or from a room?

From a

You b

Uhmm.

room.

roke

Not an office?

Uh-um.

Where

her, w

It was

What

Was

26° 3

kind

into a room?

this lady at when

a house?

store.

of store?

you

A A food store.

EG What race was the lady?

A What race was she?

EG Yes. Was she white, was she

A I think she was white.

EG You're not sure?

PL OK, how long before you shot

did you get the gun?

A About three weexs.

PL A couple of weeks?

A Uhmm.

black?

her

PL How do you remember what day it was?

A Cause it was advertised.

PL It was advertised? You read about

it?

EG Was that yes or no?

A Yes.

EG Where did you ‘read about it?

A In the news, I heard about it in the

news and. . . stuff like that. On TV:

EG Where was this store near?

A It's close to the Tucson High.

EG Was it on the corner, was it in the

middle of the block?

A It was on the corner.

EG What corner, do you remember? You

shaked your head no?

EG Could the lady have been black?

A I don't remember.

EG Could she have been Mexican?

A She could've been Mexican.

EG Could she have been Chinese?

A She could've been Chinese.

PL What .. . did she say anything to

you?

-F-ll-

A She just nodded her head and came

towards me like she was gonna do

something to me.

PL When you first saw her, where was

she?

A She was in the back of the store.

And then she came up to the front.

PL When you saw the back of the store,

was that a different part of the store,

Or was it all

A It was in the back of the store, she

was watching TV in the back of the store.

d you tell her to come out there?

A She came out.

-F-1l2-

EG When you walked in,

And then what did you do,

the gun on her?

A Uhmm.

she came out?

did you pull

EG And what did you tell her?

A “Put the money in a

bag." She

Pdidn't and she .. . I walked back like

Pe A ae Se eS Oe eee

that, I was gonna run and I was trapped

and she came towards me.

PL Was there a counte

| there that you go up and

regis

A She had a counter,

‘ounter, yeah.

PL Did she come out f

counter?

And I shot her.

r or anything

pay, a cash

there was a

rom behind the

A Yeah. And then she went back to the

counter.

PL When did she go back to the counter?

A When I put the gun in the air. And

shot then.

PL Did she go behind the counter after

you shot or before you shot?

A Before I shot.

PL Do you remember if she was standing

close to the cash register or

A She started to come around. My

nerves have been bothering me._ I started

getting all tensed up and

PL Just relax.

AS ee a Cee es eo Se. « FE Se

it's something that they gave me or

something. I started getting al}

tightened up and

PL What kind of medication have they

been giving you?

A A little green pill anda little

blue pill . . . or a little red pills.

See, I can't .. . I can't stop that, it

comes and goes. It usually comes around

this time and I start getting like this.

[ can't -eat nothing, I just... . my

nerves just start tightening up. It's

I try to come up like this but I

Can*t .

EG OK, well, you know, you don't

appear to be too bad so just kind of, you

Know, relax.

EG You don*t mind us asking you these

questions, do you? Was that yes or no?

A No.

EG Do you know what you're saying to

us, don't you? Yes or no?

A Yes.

EG You know what questions we're

asking you, you know what the questions

mean, don't you?

A Yes.

EG Is there anything that we've asked

you so far that you don't understand?

EG Do you remember what this lady was

wearing?

A No

E Can I ask you something, ALEX?

A What?

EG Why did you tell Detective MARTINEZ

about it, it's been a while, why did you

tell him about it today?

A I just did.

EG Do you know why you did?

EG Did you tell anybody else

have you ever told anybody else about

what you did?

PL You didn’t even tell your mother?

EG You're shaking your head no?

EG Did you ever tell any of your

friends?

EG Who were some of your friends that

you used to hang around with in Tucson?

A Just friends.

EG Can you give me some names?

A Oh, ANDY CARROLL, (ph) and SCOTT

OWENS, (ph) and EVA (ph) and FRNIE and

PETE (ph)

EG ERNIE who?

A ERNIE HOLLINGSWORTH. (ph)

EG PETE who?

A PETE (inaud) and... I can't help

this . . . (inmaud)

EG It's OK, there's nothing to get all

there does not appear to be

anything wrong with you, you're fine. So

if you're worried about what we're

thinking don't worry about it, you look

fine to us.

A Well, I don't wanna answer anymore

questions.

(The remaining conversation was

Suppressed by the trial court. }

EG What's that?

A I already said what I could.

PL Do you know RICKY GERMANY? (ph)

A Uhmm. I'm not his friend though.

PL Why aren't you his friend?

A Because .. . he doesn't like me.

PL When did he stop liking you?

A When we started fighting.

PL When was that?

A I don't remember.

PL That was after the shooting or

before the shooting?

A After the shooting. (inaud) No

nore questions (inaud)

PL OK, just relax.

A I can't. (inaud) With that stuff.

PL Can you lean back?

PL Stretch it out. What did you do

with the gun?

m 28 - @6038 it.

PL Who did you sell it to?

A To some guy, I don't know who he

is. I just (inaud) but I don't know who

he is. He just wanted to buy it so I

sold it to him to get rid of it.

EG Did you get any money from the

robbery?

= -s, >

A A little bit.

EG Where did you get the money from?

A From the cashier register.

EG The lady didn't hand it to you, did

she? Did you take it after you shot

her? You're shaking your head yes?

A Yes.

EG About how much was it?

A I don't remember.

EG Well, was it a hundred dollars or

less?

A About a hundred dollars or less.

EG Fifty dollars?

-F-22-

A About a hundred.

PL Did anybody ever see you with the

gun?

A No... just... . just when I sold

PL You said you sold it to

HOLLINGSWORTH?

A No, not him. I just said that cause

the name just popped in my head. I just

sold the gun to somebody who wanted to

buy it.

PL When did you do that, how long

after that?

A About a week after. See, it's

Starting . . . started up again.

-F-23-

PL Are they treating you okay here?

A Yes.

PL Have you ever been in jail before?

A Juvenile.

PL Juvenile? Do you know why you're

in jail here now?

A Yeah.

PL Why?

A Taking a cop car.

PL Taking a cop car?

A Yeah.

PL You felt like doing that?

~F-24-

A Yeah.

PL How did you get to Benson?

A I hopped a train.

PL You hopped on a train and got off

A Yeah.

PL . . . Benson?

A Uhmm. The train stopped in Benson.

EG Where were you going?

A Out to California, I was supposed to

be but I was going the wrong way.

PL Do you know MARIO VALENZUELA?

MARIO?

-F-25-

PL TONY URIAS?

A Uh-um. I think I know him.

PL OK, the night before the old lady

was shot

A I don’t remember what happened.

PL You don't remember what happened?

Do you remember being over at La Quinta

and robbing a man there?

A No. I didn't do that.

PL You didn't do that?

A Uh-um.

PL What if I told you the same gun tht

was used in the La Quinta shooting was

the same gun that shot the old lady?

A What's La Quinta?

EG It's that motel over there at

St. Mary's and the freeway. Next to the

Denney's.

A I don't remember that.

PL What kind of gun was it?

A 38 Special.

PL A revolver or an automatic:

A Automatic.

PL Do you know the difference in an

automatic and a revolver:

-F-27-

EG You don't, do you?

PL Did you ever put any bullets in the

gun that you stole?

A No. They were there already.

PL How do you know they were there?

A They were in there.

PL Was the gun round or flat?

A It was round. And I did... yeah,

that's who I sold it to, this

HOLLINGSWORTH.

PL What's his first name?

A SERGIO.

ait'<28- |

PL SERGIO?

A SERGIO.

EG SERGIO.

PL Where does SERGIO live?

A Near Menlo Park.

PL How old is SERGIO?

A He's 20.

PL He's 20 now?

A Yes.

PL Do you know what he did with the

-F-29-

How do you know it was a 38 Special?

I read it (inaud).

Pardon?

I read it.

On the gun?

(7?)

You're looking good now.

Can we still ask you some questions?

Well, what do you wanna know?

I'd kind of like to know

night before you did this?

The night before?

-F-30-

about the

PL Yeah.

A I don't remember the night before.

PL Why don't you remember?

A I don't remember. Why would I

remember the night before?

PL Because you should remember

everything before or after. A time

period that

71 PL You think you do?

A Because I was in La Quinta too. I

did that too.

EG Tell us about it, tell us how you

did that one.

; -F-31-

A I walked up there and asked the man

for his wallet, and he resisted and I

told him to lay on the floor. He laid on

the floor and I tried to knock him out

and the gun shot off.

Where did it hit him?

I don't know, I didn't look. I ran

the gun went off.

OK, were you inside the room or

you

Outside.

Outside? Who was with you?

DANNY CHAMPION.

DANNY CHAMPION?

A Yeah.

PL Where does DANNY live?

A In Menlo Park.

4 PL How old was DANNY then?

A Same as mine age.

PL You're both the same age? OK, did

he go to Tucson High ‘too?

A I don‘t know.

PL Was DANNY with you both times?

A Just once. He didn't do nothing.

He was just with me.

PL Who took the wallet from the man?

deeb eaalble ik aR ie icity -0 0 mow? ated WINS

-F-33-

PL How much money did he have in the

wallet?

A He had none, he had just credit

PL Just credit cards?

A Yeah.

PL After you hit him and ran, which

way did you run?

Down towards the park, Menlo Park.

PL Did you go right down to the river

}

-F-34-

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PL How far down the river did you run?

A Right out to the. .. that hole.

Then I went in through the hole, went out

then went home.

PL You didn't get any money from the

guy at the La Quinta? Is that the reason

you went over to the store?

A The store?

PL Yeah.

EG The next day.

PL The next day?

A Yeah. Was that the next day? Yeah,

(inaud).

-F-35-

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PL Do you remember what time of day it

was at the La Quinta?

A It was at night. About eight

o'clock at night.

EG Where was the man when you first

met him, the one at La Quinta, was he in

his room, was he outside?

A He was outside.

EG What was he doing?

A He was. . . he was putting

something in his car.

EG What kind of a car was it?

A It was a truck, I guess, I don't

remember.

~F-36-

39 ae!

are

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when

It was a truck?

I guess.

Did you see anybody that you know

you ran away?

No.

Do you know RICHARD MORENO?

No, I don't remember.

You don't remember RICHARD MORENO?

No. I don't remember nothing else.

Were you doing any drugs?

Uh-um. I was a little drunk.

-F-37-

PL You were a little drunk? Which

time?

A Both times.

PL Both times? What had you been

drinking?

A I don't remember.

PL Sniffing any glue? Did you ever

sniff glue? You're shaking your head,

that's yes?

A Yes.

j EG Do you remember what some of the

credit cards were that you took from this.

man at La Quinta?

a ae Re a et

EG Did you ever use any of the credit

cards?

EG No money, not even a little bit of

money in the wallet?

A Nothing.

PL When did you look inside the wallet?

A After . . . when we got up to the

hole.

EG The hole. What's the hole?

A Near Menlo Park there's a big area,

they fixed it now. There was a hole.

EG What color was the wallet?

-F-39

A I guess it was biack.

EG Did it have the man’s driver's

license in it?

A Yes.

EG Did it have any other type of

license in it?

A He had just credit cards, that's all

remember. Just cards.

EG Do you remember what kind of truck

it was that

A No. I don't remember nothing else.

EG DANNY CHAMPION was with you?

EG Did you guys go over there

specifically to rob somebody?

A Yes.

EG Who's. . . who's plan was that?

A Mine.

PL Then DANNY saw you with the gun?

A Yes.

EG Did you tell DANNY later on that

you had also shot the lady at the store?

EG But he knows you shot the guy at La

Quinta?

A Yeah. I don't remember shooting

him. I just remember the gun going off.

By accident it went off. Cause it was

cocked back.

PL You look good.

A For right now. That's all I can Say.

PL Why did you start talking about

this to begin with, why did you start

telling

A Cause. I don't wanna live with that.

EG Cause it bothered you?

A Yes. It was (inaud). I didn‘t feel

right about it. I gotta get something

for this man.

~F-42-

PL OK, OK. I'll tell Detective

MARTINEZ, he will take care of you, OK?

Just relax.

(Record on Appeal, Exhibit No. 2, at

Evidentiary Hearing.)

8169d/8227d jd

-~F-43

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.