Petition — Arizona v. Routhier

. : a Court, U.S.

83-8 37 Oe OTL ED

nov 10 9

NDER L STEVAS.

CLERK

NO. 83-

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1983

STATE OF ARIZONA,

Petitioner,

DENNIS EARL ROUTHIER,

Respondent.

ON WRIT OF CERTIORARI TO THE

ARIZONA SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

ROBERT K. CORBIN

Attorney General of

the State of Arizona

WILLIAM J. SCHAFER III

Chief Counsel

Criminal Division

GERALD R. GRANT

Assistant Attorney General

1275 W. Washington

Phoenix, Arizona 85007

Telephone: (602)255-4686

Attorneys for PETITIONER

QUESTION PRESENTED

Where the defendant had invoked his

right to counsel to end police

interrogation concerning a murder, were

his fifth and fourteenth amendment

rights violated when 3 days later,

after a different police officer had

approached him about two unrelated

homicides, he volunteered statements

about the first homicide after being

advised of and waiving his

constitutional rights?

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF AUTHORITIES

OPINION BELOW

STATEMENT OF JURISDICTION

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE

ARGUMENT

CONCLUSION

CERTIFICATION

APPENDIX "A"

APPENDIX "B"

ni tn

23

24

TABLE OF AUTHORITIES

Cases Page

Aguilar v. Texas

378 U.S. 108

84 S.Ct. 1509

12 L.Ed.2d 723 (1964) 20

Edwards v. Arizona

451 U.S. 477

101 S§.Ct. 1880 12,13.34,,15,16

68 L.Ed.2d 378 (1981) 17, 18,49 22;20

Illinois v. Gates

U.S.

103 S.Ct. 2317

76 L.Ed.2d 527 (1983) 19

McFadden v. Commonwealth

300 S.E.2d 924

(Va. 1983) 20

Michigan v. Mosley

423 U.S. 96

96 S.Ct. 321

46 L.Ed.2d 313 (1975) 17

Mincey v. Arizona

437 U.S. 385

98 S.Ct. 2408

57 L.Ed.2d 290 (1978) 4

Miranda v. Arizona

384 U.S. 436

86 S.Ct. 1602 ;

16 L.Ed.2d 694 (1966) 15

Spinelli v. United States

393 U.S. 410

89 SCt. 584

21 L.Ed.2d 637 (1969) 20

-iii-

TABLE OF AUTHORITIES

Cases Page

State v. Routhier

Ariz.

669 P.2d 68 (1983) 1,14

Wyrick v. Fields

U.S.

103 S.Ct. 394

74 L.Ed.2d 214 (1982) 19

AUTHORITIES

ae U.8.C.

§ 1257(3) 1

United States Constitution

Fifth Amendment 1,2,14,193,16 286,23

Fourteenth 1,2,15,20,23

-iv-

.

es 2.5

OPINION BELOW

The 1983 Arizona Supreme Court opinion

holding that Routhier's fifth and

fourteenth amendment rights were violated

when the second officer reapproached him

is reported as State v. Routhier,

Ariz. __, 669 P.2d 68 (1983). That

opinion is appended here as Exhibit "A."

The order denying the motion for

rehearing on the 1983 opinion is appended

as Exhibit "B."

STATEMENT OF JURISDICTION

The opinion of the Arizona Supreme

Court that the state asks this Court to

review was entered on July 6, 1983. The

order of the Arizona Supreme Court

~ denying the state's motion for rehearing

was filed on September 14, 1983. This

petition was filed within 60 days from

that order. The jurisdiction of this

Court is invoked under 28 U.S.C.

§ 1257(3).

on hime

CONSTITUTIONAL PROVISIONS INVOLVED

The pertinent part of the Fifth

amendment to the United States

Constitution provides:

No person . . . shall be compelled

in any criminal case to be a

witness against himself .

The pertinent part of the Fourteenth

amendment to the United States

Constitution provides:

(N)or shall any state deprive any

person of life, liberty, or

property, without due process of law

STATEMENT OF THE CASE

On October 2, 1980, Dennis Earl

Routhier, the respondent, was charged

with first-degree murder and attempted

first-degree murder. On September 20,

~ 1980, Mr. Routhier flagged down Lawrence

Barrick and his 23-year-old son, Robert,

and asked for assistance in starting his

apparently disabled truck. The Barricks

agreed to help, and Routhier's truck was

eventually started. Routhier then

=2-

followed the Barricks to a canal west of

Phoenix. Robert Barrick went swimming

while his father and Routhier remained

behind. Routhier took a hammer from his

truck, beat Mr. Barrick to death, and

stole his wallet. When Robert Barrick

returned from his swim, Routhier struck

him in the head with the hammer. However,

the younger Barrick was able to escape and

ran to a nearby highway looking for help.

Prior to trial, defense counsel filed a

motion to suppress statements that

Routhier had made to police officers after

his arrest. The motion claimed that the

statements were involuntary because

Routhier had been in the hospital at the

time of the golice interrogation. '

i wy amo relied upon this Court's

e #@

1. Routhier was injured when his

truck collided with another vehicle while

being pursued by police officers.

decision in Mincey v. Arizona, 437 U.S.

385, 98 S.Ct. 2408, 57 L.Ed.2d 290

(1978), to support his position.

At the hearing on this motion, the

prosecution presented tes*imony from five

witnesses, three of whom were hospital

personnel. The other two witnesses were

members of the Maricopa County Sheriff's

Office. The hospital personnel testified

that Routhier's injuries were not serious

and that he was alert and not under the

influence of medication at the time of

his first conversation with the

authorities. Detective F. Jordan Barber

testified that he and Detective Zuleger

spoke to Routhier at Good Samaritan

Hospital on September 21, 1980.

Detective Barber advised Routhier of his

constitutional rights and he said that he

understood those rights and was willing

to talk with the officers. Routhier then

made statements about his activities on

the day of the murder of Lawrence

Barrick. Barber used no threat or force,

and did not make any promises to

Routhier.

Detective Jesse Locksa spoke with

Routhier on September 24, 1980, at the

county hospital. Detective Locksa also

advised Routhier of his constitutional

rights, and Routhier again expressed his

understanding of those rights and his

willingness to talk. lLocksa further

advised Routhier that he was not there to

question him about the case he was in

custody for, but about two other homicide

cases. After Locksa had given him the

names of the other homicide victims,

Routhier made a statement about the

Barrick murder. The defense presented no

evidence at the hearing, and the trial

court then ruled that Routhier's

statements had been voluntarily made

-§—

after he had been advised of his

constitutional rights, and that he had

understood and waived those rights. No

evidence that Routhier had asserted his

right to counsel at any time was

presented at this hearing.

Routhier went to trial before a jury in

June of 1981. The prosecution called

Detective Barber in its case-in-chief.

Barber described his conversation with

Routhier at Good Samaritan Hospital on

September 21, 1980. He related how

Routhier had described his activities on

the morning of September 20, 1980, and

how he had also talked about meeting

Lawrence and Robert Barrick. Barber

testified that Routhier had remembered

hitting the Barricks with his fists, and

had said that he might have been mad ~

enough to use a hammer. On

cross-examination, defense counsel asked

Barber if Routhier had denied being

-6-

present at the scene of the killing,

being involved in the high speed chase,

or striking the Barricks. Defense

counsel also asked about Routhier's

physical condition at the time of those

statements. The prosecutor then asked

the detective if Routhier had told him

anything about the victim having

approached or threatened Routhier.

Barber said that Routhier had not made

any statements like that. Defense

counsel made no objection to this

testimony, but established on

recross-examination that the detective

had not asked Routhier about those areas.

Routhier testified at trial about his

conversation with officers at the

hospital, but remembered little of it.

When the prosecutor asked Routhier about

this conversation, he did not remember

signing the officer's rights card, but

did remember telling the police that he

-

had hit someone. Routhier recalled that

Detective Barber was present, but thought

that he had spoken with another officer.

The prosecutor then asked if Routhier

remembered telling the other detective

that he had hit the old man after the old

man got wise. Routhier did not remember

that, and said that he told the officers

he had no more to say to them but the

officers kept asking questions. Routhier

also said that he did not tell the

officers that Mr. Barrick had been

gouging his eye out. When asked why he

had not told the officers that, Routhier

said that he had told the officers that

he wanted an attorney, but the officers

kept asking questions and so he had

refused to talk any more. Routhier also

admitted that he had not discussed

self-defense with the officers. The

prosecutor then asked about Routhier's

conversation with Detective Locksa on

September 24, 1980.. Routhier remembered

the conversation, and admitted that he

had been advised of his rights, that he

had understood them, and that he had

agreed to talk to the officer. At this

point the trial court took its evening

recess.

The following day, defense counsel

objected to further questioning of

Routhier about the conversation with

Detective Locksa because there had not

been "an adequate showing of compliance

with Miranda." The trial court pointed

out that it had ruled on the

admissibility of the statements prior to

trial, and that the issue of their

voluntariness would be submitted to the

jury. (Id. at 7-8.)

The prosecutor then continued his

cross-examination about the conversation

with Locksa on September 24, 1980.

Routhier now testified that he did not

recall being advised of his rights nor

did he recall indicating that he

understood his rights and was willing to

talk to the officer. Routhier also did

not recall making a certain statement to

Locksa about the death of Mr. Barrick.

On redirect, defense counsel reemphasized

Routhier's testimony that he had

requested an attorney.

In rebuttal, the prosecution recalled

Detective Barber to the stand. The

detective contradicted Routhier's version

of their conversation on September 21,

1980, and stated that, when Routhier had

requested an attorney, he had immediately

terminated the interview. Barber denied

that he had continued to interrogate

Routhier after he had requested an

attorney. Defense counsel elicited

testimony that Barber had told Locksa

about Routhier's request for an attorney.

-36-

The prosecution then called Detective

Locksa to the stand. Locksa testified

that he had interviewed Routhier on

September 24, 1980, and acknowledged that

he had spoken with Barber before that

interview. After Locksa had testified

that he had advised Routhier of his

constitutional rights, and that Routhier

had said that he understood those rights

and would answer Locksa's questions,

defense counsel objected to any further

testimony on the ground that the

prosecution had not shown “sufficient

compliance with Miranda."

Counsel and the trial court then

discussed the matter at the bench. After

this discussion, the prosecutor asked no

further questions of Locksa. Defense

counsel, however, went back over Locksa's

testimony that Barber had told him that

Routhier had requested counsel.

-ji-

The trial court then took a short

recess and met with counsel in chambers

to discuss the matter further. The

prosecutor pointed out that Locksa had

specifically advised Routhier that he did

not wish to talk with him about the

Barrick killing, but about other murder

cases that Locksa was working on. The

trial court stated that this changed

matters since Routhier had made his

statement to Locksa without being asked

any questions about the Barrick killing.

However, the prosecutor stated that to

avoid any prejudice to Routhier, he would

not seek to bring in testimony of

Routhier's statements to Locksa.

The following day defense counsel moved

for a mistrial based upon the

prosecution's questioning of witnesses

about Routhier's conversation with

Detective Locksa. Defense counsel cited

Edwards v. Arizona, 451 U.S. 477, 101

-12-

s. 1880, 68 L.Ed.2d 378 (1981), in

support of his motion. Noting that

Locksa had not interrogated Routhier

about the Barrick murder, the trial court

denied the motion for mistrial.

On June 26, 1981, the jury found

Routhier guilty of first-degree murder

and attempted first-degree murder. The

trial court imposed a sentence of 21

years’ imprisonment for the attempted

murder, and a sentence of death for the

murder.

In his appeal to the Arizona Supreme

Court, Routhier argued that the trial

court had erred in allowing testimony

concerning his statements to Detective

Locksa. On July 6, 1983, the Arizona

Supreme Court reversed Routhier's

conviction and remanded the case to the

superior court for a new trial. One

basis for the supreme court's ruling was

that the statement Routhier had made to

=13—

Detective Locksa had been obtained in

violation of his fifth amendment right to

counsel. State v. Routhier, supra,

Ariz. at , 669 P.2d at 74-76.

ARGUMENT

In holding that Routhier's stat2ments to

Detective Locksa had been erroneously

admitted due to a violation of Routhier's

fifth amendment right to counsel, the

Arizona Supreme Court relied upon this

Court's decision in Edwards v. Arizona,

supra. The Arizona court noted that these

statements were made after Routhier had

invoker his right to counsel during the

interrogation by Detective Barber, that

Routhier had not initiated the contact

with Locksa, and that counsel had not been

made available to Routhier prior to the

Locksa interrogation. The only

distinction that the Arizona court found

—14-

between Routhier's situation and that

presented in Edwards was that Routhier was

reinterrogated about an unrelated

offense. However, the court concluded

that this factual distinction held no

legal significance for fifth amendment

purposes. In so doing, the Arizona

Supreme Court decided an important

question of federal law that has not been

decided by this Court.

In Miranda v. Arizona, 384 U.S. 436, 86

S.Ct. 1602, 16 L.Ed.2d 694 (1966), this

Court held that the fifth and fourteenth

amendment prohibition against compelled

self-incrimination requires advising an

accused of his right to silence and his

right to counsel prior to custodial

interrogation. This Court also noted that

if an accused invokes his right to remain

silent, the police questioning must

cease. Should the accused invoke his

right to counsel, the police questioning

-15-

Se

must cease until an attorney is present.

Thus, Miranda established a fifth

amendment right to have counsel present

during custodial interrogation.

In Edwards v. Arizona, supra, this Court

was presented with a situation wherein the

accused had invoked his right to counsel

to end police custodial interrogation.

One day later, however, after the police

had reapproached him and readvised him of

his Miranda rights, Edwards made

additional statements to the officers, and

those statements were used against him at

trial. Edwards argued to this Court that

the subsequent police interrogation was in

violation of his earlier invocation of his

right to counsel. The question presented,

then; was whether Edwards had made a valid

waiver of his previously invoked right to

counsel. This Court first noted that a

waiver of counsel must not only be

voluntary, but must also constitute a

=~16<

knowing and intelligent relinquishment or

abandonment of a known right or

privilege. The question of waiver is one

to be determined upon the particular facts

and circumtances present in each

individual case. This Court went on to

distinguish between the invocation of the

right to silence in Michigan v. Mosley,

423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313

(1975), and Edwards’ invocation of his

right to counsel. Finally, relying on the

facts that Edwards had not initiated the

second contact with the police and that

counsel had not been made available to

Edwards, this Court concluded that Edwards

had not made a valid waiver of his right

to counsel.

In applying the holding in Edwards to

Routhier's situation, the Arizona Supreme

Court appears to have determined that

Edwards created a new per se rule

requiring a threshold inquiry into

=-j J

precisely who had opened any conversation

between the accused and the police. Since

Routhier had previously invoked his right

to counsel and counsel had not been made

available to him, and since Routhier had

not initiated the contact with Detective

Locksa, the Arizona court concluded that,

even though Locksa had approached Routhier

on an entirely different manner, Edwards

mandated a finding that Routhier had not

made a valid waiver of his right to

counsel.

Such a broad reading of this Court's

holding in Edwards is unwarranted. In

Justice Powell's concurring opinion in

Edwards (joined by Justice Rehnquist), he

disagreed with the notion that the

majority had created a per se rule

concerning “initiation” of the contact

between the accused and the authorities.

According to Justices Powell and

Rehnquist, the ultimate question is

-18-

wig

whether there was a free and knowing

waiver of counsel before the interrogation

commenced. That question is to be

determined in light of all the

circumstances present in the case; who

initiated the contact is a relevant

circumstance, but it is not a sine qua

non. Justice Powell's interpretation of

the Edwards holding appears to be an

accurate one. In a recent per curiam

decision, this Court rejected a claim that

Edwards had established a per se rule

forbidding a finding of waiver of counsel

unless the accused had initiated the

contact. Wyrick v. Fields, U.S. ‘

103 S.Ct. 394, 74 b.za.24 214 (1982). A

ritualistic application of a per se rule

“based upon initiation of the contact

appears even more unlikely in light of

this Court's holding in Illinois v.

Gates, U.S. , 103 &§.Ct. 2317, 76

L.Ed.2d 527 (1983). In that case, a

-19-

majority of this Court abandoned the rigid

and excessively technical application of

the “two-pronged test" of

Aquilar* and Spinelli’ in probable

cause determinations in favor of a

“totality of the circumstances" analysis.

In addition, at least one state court has

rejected the notion that Edwards

established a per se rule regarding

initiation of the contact between accused

and the police. See McFadden v.

Commonwealth, 300 S.E.2d 924 (Va. 1983).

Therefore, the Arizona Supreme Court has

decided an important question of federal

law that has not been, but should be,

settled by this Court: whether the fifth

and fourteenth amendments prohibit

officers from reapproaching an accused

2. Aquilar v. Texas, 378 U.S. 108, 84

S.Ct. 1509, 12 L.Ed.2d 723 (1964).

3. Spinelli v. United States, 393 U.S.

410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

-20-

who has invoked his right to counsel

after custodial interrogation concerning

one offense and interrogating him about

an entirely different case. The

particular facts and circumstances

presented in this case establish that no

constitutional violation occurred.

Detective Barber's initial interrogation

of Routhier was accompanied by no

threats, force, or promises. Routhier

was not in physical pain and was not

under the influence of any medication.

When Routhier invoked his right to

counsel, Barber immediately terminated

the interrogation. Three days later,

Routhier was in a different hospital.

Again, he was not suffering physical pain

and was not under the influence of any

medication. Detective Locksa used no

force, threats, or promises. He advised

Routhier of his constitutional rights and

Routhier replied that he understood those

-21-

rights and was willing to talk with the

officer. Locksa informed Routhier that

he did not want to talk about the Barrick

killing but about other killings. At

that point, Routhier made a statement

about the Barrick homicide. There was no

evidence that Locksa was using an

investigation of the other killings as a

subterfuge to gain information about the

Barrick homicide. There was no evidence

that Routhier was told that he had to

talk with Locksa. Three days elapsed

between Routhier's initial invocation of

his right to counsel and the

interrogation by Locksa, and Routhier

spent that time not in a jail cell, but

in a hospital. The facts and

circumstances of this case are

significantly different from those in

Edwards and the Arizona Supreme Court

erred in holding that Routhier did not

make a valid waiver of counsel.

-22-

CONCLUSION

The finding that Routhier's fifth and

fourteenth amendment right to counsel was

violated was erroneous. The particular

circumstances of this case establish that

Routhier made a valid waiver of counsel

when interrogated by Detective Locksa, but

the Arizona Supreme Court erroneously

interpreted Edwards to prohibit such a

finding. For these reasons this Court

should grant review of the opinion of the

Arizona Supreme Court holding that the

fifth and fourteenth amendments prohibited

the admission of Routhier's statements to

Detective Locksa.

Respectfully submitted,

ROBERT K. CORBIN

~hrézona A

I+. gig

Criminal Division

Cuald K Laaat

GERALD R. GRAJIT

Assistant Attorney General

Attorneys for PETITIONER

-23-

AFFIDAVIT OF SERVICE

STATE OF ARIZONA )

COUNTY OF MARICOPA e

GERALD R. GRANT, a member of the Bar

of this Court, being first duly sworn,

deposes and says:

That he served three copies of the

Petition for Writ of Certiorari upon

TERRY J. ADAMS, Attorney for Dennis Earl

Routhier, at 132 South Central, Second

Floor, Phoenix, Arizona 85004 by

depositing the same in the United States

Mail, with first class postage prepaid.

Additionally, as a courtesy, I

herewith certify that service of three

copies of this petition has been made

upon the United States of America by

depositing the same in the United States

Mail, with first class postage prepaid,

addressed to the Solicitor General,

athe

Department of Justice, Washington, D.C.

20530.

duald R Evant

GERALD R. GRANT

Assistant Attorney General

Criminal Division

1275 West Washington

Phoenix, Arizona 85007

SUBSCRIBED AND SWORN TO before me this

10th day of November, 1983.

ae, j > A f ‘4 j “ Pe i

ef 7 tA od a yay f ‘LA, Pr,

NOTARY’PUBLIC //

My Commission Expires:

July 17, 1986

3031D:bb

—-25—

APPENDIX "A"

APPENDIX A

_N THE SUPREME COURT

OF THE STATE OF ARIZONA

Opinion of the Arizona Supreme Court

STATE OF ARIZONA,

Appellee,

DENNIS EARL ROUTHIER,

Appellant.

Supreme Court No. 5390

Appeal from the Superior Court

of Maricopa County

Cause No. CR-115186

Filed: July 6, 1983

S. Alan Cook, Clerk

HOLOHAN, Chief Justice:

OPINION

A jury found appellant, Dennis Earl

Routhier, guilty of first degree murder

and attempted first degree murder. He

was sentenced to death on the first

degree murder charge and to 21 years on

the charge of attempted first degree

murder. Appellant. appeals-these

convictions and sentences. We have

jurisdiction of this case pursuant to

Arizona Const. art. 6 § 5 and A.R.S.

§ 13-4031.

The appellant raises seven issues on

appeal but we believe the answers to the

following questions will be dispositive

of the appeal:

oe

, Whether the scope of the

prosecutor's cross-examination of

the appellant violated his fifth

and fourteenth amendment rights.

3. Whether photographs of the

deceased and a bloody shirt were

erroneously admitted into evidence.

3. Whether the trial court erred in

not granting appellant's motion

for acquittal on the count of

attempted murder.

The following facts are necessary for a

resolution of the issues presented.

On the morning of September 20, 1980,

Lawrence Barrick and his son, Robert,

‘stopped the vehicle in which they were

travelling to aid a man who had flagged

them down. Dennis Earl Routhier,

appellant, told the Barricks he was

having trouble with his truck. The

Barricks drove the appellant to his

truck, which was parked some distance off

the main road. When the three men

arrived at the truck, a ‘56 Chevy, the

appellant stated he would make one more

attempt to start it. The truck started

unaided. The three men then sat on the

tailgate of the Barricks' truck and drank

some beer.

After finishing their beer, the

Barricks drove to a friend's house. The

appellant was invited to follow them in

his own truck, and he did. The Barricks'

friend was not at home so they decided to

drive out to Roosevelt irrigation canal

and take a swim. The appellant followed

the Barricks to the canal.

&

Robert Barrick jumped into the canal

and swam for five to ten minutes. As

Robert began to climb out of the canal,

the. appellant approached him and hit him

in the head with a hammer. Robert was

cut and knocked unconcscious for a few

seconds. He testified that appellant

asked him if he had any money, to which

Robert replied "No." Appellant then

instructed Robert to get out of the canal

or his father would be harmed. At this

point Robert noticed that his father was

slumped over on the ground by- his truck.

Robert climbed the opposite bank of the

canal and ran to the nearby freeway to

summon help.

Meanwhile, the appellant sped away in

his truck. When the police arrived at

the scene, they found Lawrence Barrick

beaten and bleeding profusely from the

head and neck. He died soon afterwards.

Medical testimony revealed that he died

of multiple wounds inflicted by a blunt

instrument.

Later that afternoon, police

apprehended the appellant after a high

speed chase on the freeway. The chase

terminated when the appellant's truck

swerved into a semi-truck and rolled off

the freeway. The appellant was taken

into custody and admitted to Good

Samaritan Hospital for treatment of head

and leg injuries.

Appellant's testimony at trial was that

he killed Lawrence Barrick in

self-defense. He claimed that Barrick

attacked him without reason and appellant

only used his hammer when Barrick tried

to gouge his eye out. Additional facts

pertinent to questions raised by the

appellant will be discussed as necessary.

-3-

HOSPITAL STATEMENTS

On the morning of September 21, 1980,

Detective Barber of the Phoenix Police

Department visited the appellant at Good

Samaritan Hospital. The appellant was

informed of his rights to silence and to

the services of an attorney. He stated

that he understood his rights and was

willing to submit to questioning.

Appellant signed a waiver of rights card,

and the interrogation began. During the

interrogation the appellant indicated

that he remembered meeting an old man and

his son, having a disagreement with the

old man and hitting both individuals with

his fists. When asked by Detective.

Barber whether he had used’a hammer, the

appellant stated that he may have been

mad enough to use one, but he did not

believe that he had. Detectiv> Barber

then asked the appellant to elaborate on

specific details, but the appellant

stated that he wanted to speak with an

attorney. At that point, the questioning

ceased.

Three days after the first interview at

Good Samaritan Hospital, before counsel

had been provided him, the appellant was

interrogated a second time by a Detective

Locksa. The interrogation was conducted

at the detention ward of Maricopa County

Hospital, where the appellant had been

transferred from Good Samaritan

Hospital. Detective Locksa had been

advised by Detective Barber of the

appellant's previous request for

counsel. The appellant was again

informed of his rights to silence and

legal representation. Detective Locksa

further told the appellant that he did

not want to discuss the Barrick homicide

-4—-

‘but that he wanted to discuss two

‘umrelated homicide cases. The appellant

‘stated that he was willing to talk to the

detective. In response to Detective

Locksa's questions regarding these

unrelated homicides, the appellant

implicated himself in the Barrick

homicide. His precise words were, “I

have never done anything like this

before. The only reason I did what I did

is that I was totally shitfaced, I

probably would not have even hit the old

man if it hadn't been for his big mouth."

The appellant was charged by indictment

with having committed first degree murder

and attempted first degree murder.

Subsequently, pursuant to a plea

agreement, the appellant appeared before

the superior court to enter a no contest

plea. At the hearing on the no contest

plea a set of police reports and the

medical examiner's report were admitted

into evidence to establish a factual

basis for the plea.

Before.the plea was accepted by the

superior court, the appellant asked to

withdraw the plea. The request was

granted, and the case was transferred to

another superior court judge.

Prior to.trial, the appellant moved to

suppress all of his hospital

statements’ on the grounds that they

l. Those made during the first

interview at Good Samaritan Hospital to

Detective Barber and those made during

the second interview at the County

Hospital to Detective Locksa.

=-S—

were involuntary due to appellant's

physical condition at the time of

interview. No mention was made of the

appellant's request for counsel in his

motion to suppress or at the voluntariness

hearing. Both Detectives Barber and

Locksa testified at the voluntariness

hearing and neither one mentioned the

appellant's request for counsel. The

appellant's motion to suppress his

statements was denied. The trial court

found that the statements were voluntarily

made after the appellant had waived his

constitutional rights.

At trial, when the appellant was being

cross-examined, the fact of his request

for counsel was brought out by the

prosecution. At that point defense

counsel made a motion to preclude any

questioning of the appellant regarding

statements made by him during the second

interview on the grounds of inadequate

showing of Miranda’* compliance. The

trial judge denied the motion stating that

he had already ruled that the statements

were voluntary and admissible. Defense

counsel, however, did not make any motion

concerning the cross-examination of

appellant on matters to which he had

invoked his right to silence and counsel.

The prosecutor then questioned the

appellant on the substance of his

incriminating statement to Detective

Locksa. Specifically, the prosecutor read

the statement in court and asked the

appellant if he remembered making it. The

appellant stated he did not remember

making such a statement.

2. Miranda v. Arizona, 384 U.S. 436, 86

S.Ct. 1602, 16 L.Ed.2d 694 (1966).

-6—-

Detective Barber was recalled by the

state in rebuttal, and he testified that

the appellant had invoked his right to

counsel during the first interview at Good

Samaritan Hospital and that he told

Detective Locksa before Locksa interviewed

the appellant a second time, that the

appellant had previously invoked his right

to counsel. Detective Locksa testified

that Detective Barber had, in fact,

informed him that the appellant requested

an attorney when Barber was interviewing

the appellant.

Appellant challenges the admission of

his hospital statements.

THE DOYLE ISSUE

The appellant argues that he was denied

due process by the prosecutor's reference

to his post-arrest silence. During cross

examination of appellant the following

testimony was elicited:

Q. (by the prosecutor] But

you don't remember that you had

told them that it was possible

that you used a hammer?

A. Oh, yes, I think I might

have told them it was possible I

might have.

Q. But you didn't tell them -

that the man had been gouging your

eye out, did you?

A. I don't recall. I don't

think so. I don't think I‘d want

to tell them that.

Q. Why not?

A. Well, after I found out

where I was and what I was -— you

know, the situation I was in, I

wanted to speak to a lawyer. I do

recall asking him that or telling

him that -— not him, but the other _

officer I talked to. I do recall

saying I'd just as soon speak to

an attorney, yes. I did hit the

man, that's all I recall saying.

However, I put it, that's exactly

what I meant out of it was, yes, I

did hit the man, and, yes, I'd

like to see an attorney. They

proceeded asking questions after I

told them I wanted to see an

attorney and kept on and on. What

they got off that, I don't know.

I'm sure it was just, you know, to

show them that I was not gonna

talk anymore.

Q. But at that time you at no

point mentioned any kind of

self-defense?

A. I don't think so. No, I

didn't discuss any of the details

with them.

The State also brought out in its case

in chief on redirect examination of

Detective Barber the following:

Q. BY MR. HOTHAM [the

prosecutor]: Mr. Bohm [defense

counsel] asked you whether it

wasn't a fact that the defendant

admitted to you that he had struck

an older man and a younger man, is

that correct?

A. That's correct.

Q. The —— did the defendant:

tell you anything about the victim

coming at him?

A. The defendant made no

mention at all of the victim

attacking him or approaching him

in any manner to me.

Q. Did he tell you anthing

about the victim threatening him?

A. No, he did not.

Q. Did he tell you anything

about the victim having a gun?

A. No, he did not.

Q. Aldi he stated to you was

that he remembers striking both

the older man and the younger man,

but thought it was with his fists,

and then he might have been mad

enough to pick up a hammer, but he

did not recall doing that; is that

correct?

A. That's correct.

Initially, we note that defense counsel

made no objection to any of the

questioning now being challenged.

Although objection is usually required to

preserve a question for appeal, an

objection is not necessary in the case of

fundamental error. State v. Navarre, 132

Ariz. 480, 647 ?.2d 178 (1982). Because

appellant asserts that fundamental error

was committed in this case and we are

obligated to review the record for such

error, State v. Post, 121 Ariz. 579, 592

-9—

P.2d 775 (1979), we address appellant's

contention that his post arrest right to

silence was violated.

The United States Supreme Court has

ruled that a defendant cannot be

impeached by his post-arrest silence

after being read his Miranda warnings.

Doyle v. Ohio, 426 U.S. 610, 96 S.Ct.

2240, 48 L.Ed.2d 91 (1976); see Fletcher

v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71

L.Ed.2d 490 (1982). This ruling is

consistent with Arizona case law which

has established that a defendant's

silence at the time of arrest cannot be

used against him as inconsistent with

testimony given at trial. State v.

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

(1973); State v. Shing, 109 Ariz. 361,

509 P.2d 698 (1973); see State v. Ward,

112 Ariz. 391, 542 P.2d 816 (1975).

These decisions are grounded on the

principle that the Miranda warnings

implicitly assure a person that the

exercise of his rights carries no penalty

and cannot be used against him. See

Doyle v. Ohio, supra.

The State argues that the above

rationale does not apply in this case

because appellant waived his

constitutional rights. While it might be

true that appellant signed a waiver of

rights card at the beginning of the

interview with Detective Barber,

appellant was not inextricably bound by

that waiver. As stated in Miranda:

Once warnings have been given,

the subsequent procedure is

clear. If the individual

-],0—

indicates in any manner, at any

time prior to or during

questioning, that he wishes to

remain silent, the interrogation

must cease.

et ox

Moreover, where in-custody

interrogation is involved, there

is no room for the contention that

the privilege is waived if the

individual answers some questions

or gives some information on his

own prior to invoking his right to

remain silent when interrogated.

Miranda v. Arizona, 384 U.S. at

473-74; 475-76, 86 S.Ct. at

1627-1628.

In this case it is clear that, although

appellant initially waived his rights, he

subsequently reinvoked those rights by

requesting an attorney. Detective Barber

in fact testified that he understood

appellant was invoking his rights and

ceased questioning. Appellant':s express

invocation of his rights, as well as his

failure to make a complete statement or

to answer particular questions,

distinguishes this case from, e.g., State

v. Reinhold, 123 Ariz. 50, 597 P.2d 532

(1979); State v. Tuzon, 118 Ariz. 205,

575 P.2d 1231 (1978) and State v.

Raffaele, 113 Ariz. 259, 550 P.2d 1060

(1976). While it was permissible for the

prosecutor to question the appellant and

Detective Barber on matters which the

appellant had volunteered prior to

reinvoking his rights, it was

impermissible to ask questions on matters

about which the appellant had not made

any comment or given any information. In

-ll-

doing so, the State violated appellant's

fifth amendment right to silence.’

FUNDAMENTAL ERROR

Since the violation of appellant's

constitutional rights constituted

fundamental error, the remaining issue is

whether the error was harmless. State v.

Anderson, supra. From a review of the

record we cannot say that the error was

harmless beyond a reasonable doubt.

Since the case must be retried it is

necessary to address several issues.

THE SECOND STATEMENT

The incriminating remarks to Detective

Locksa were not offered in the state's

case in chief. The statement was brought

out by the state in its cross-examination

of the defendant. Since no cautionary

instructions were given by the trial

judge, the jury was free to consider the

statement of appellant to Locksa as

evidence of guilt.

Appellant argues that the testimony of

Detective Locksa should not have been

admitted because it was obtained after

the appellant had requested the

assistance of counsel. The appellant

3. Because we are remanding for a new

trial, we do not feel it is necessary to

analyze the references made to

appellant's silence in the prosecutor's

closing argument.

=i 2

relies on Edwards v. Arizona, 451 U.S.

477, 101 S.Ct. 1880, 68 L.Ed.2d 378

(1981).

The State contends, however, that

Edwards v. Arizona, supra, is

inapplicable to the case at bar. It

argues that Edwards only spoke to waiver

of counsel pursuant to reintcrrogation of

the same offense, whereas the appellant

in the instant case was reinterrogated on

other matters.

The precise issue that this Court must

decide is whether appellant's fifth and

fourteenth amendment rights were violated

when he was questioned about two

unrelated homicides after having asserted

a right to counsel incident to the

Barrick homicide. We decide today the

issue left open in State v. Hensley, No.

5556 (Ariz. filed June __, 1983).

The State argues that Michigan v.

Mosley, 423 U.S. 96, 96 S.Ct. 321, 46

L.Ed.2d 313 (1975), controls this issue.

In Mosley, the U.S. Supreme Court

considered the propriety of questioning a

suspect about one crime after the suspect

had invoked his right to remain silent

when he was questioned earlier about an

unrelated crime. The Court held that a

reinterrogation is not a violation of a

suspect's fifth amendment right to

silence where the invocation of that

right is “scrupulously honored." Id., at

104, 96 S.Ct. at 326. The Court found

that the resumption of interrogation

about an unrelated offense was not

inconsistent with Mosley's earlier

refusal to answer any questions. Id. at

105, 96 S.Ct. at 327.

-13-

Michigan v. Mosley, supra, however, did

not address the procedures to be followed

after a defendant invokes his right to

counsel. The majority opinion in Mosley

meticulously distinguished the right to.

silence from the right to counsel: "The

present case does not involve the

procedures to be followed if the person

in custody asks to consult with a lawyer,

since Mosely made no such request at any

time." Id., at 101, n. 7, 96 §.Ct. at

325. And again: “(T]he Court in Miranda

; . distinguished between the

procedural safeguards triggered by a

request to remain silent and a request

for an attorney and directed that ‘the

interrogation must cease until an

attorney is present’ only ‘[i]f the

individual states that he wants an

attorney. 384 U.S. at 474, 86 S.Ct.

coee.°” a. et 104, n. 10, 96 8.Ct. at

326.

The procedures governing the

reinterrogation of a suspect after he

invokes his right to counsel were

detailed by the Supreme Court in Edwards

v. Arizona, supra. In Edwards, the

defendant was reinterrogated after

previously invoking his right to counsel

in an earlier interview. The Supreme

Court determined that Edwards’

confession, given during the second

custodial interrogation, was

inadmissible. The court stated:

we now hold that when an accused

has invoked his right to have

counsel present during custodial

interrogation, a valid waiver of

that right cannot be established

by showing only that he responded

to further police-initiated

-~14-

custodial interrogation even if he

has been advised of his rights.

We further hold that an accused,

such as Edwards, having expressed

his desire to deal with the police

only through counsel, is not

subject to further interrogation

by the authorities until counsel

has been made available to him,

unless the accused himself

initiates further communication,

exchanges or conversations with

the police. 451 U.S. at 484-85,

101 S.Ct. at 1884-1885 (footnote

omitted).

The only difference between Edwards and

the appellant is that Edwards was

questioned about the same offense after a

request for counsel while the appellant

was reinterrogated about an unrelated

offense. We do not believe that this

factual distinction holds any legal

significance for fifth amendment purposes.

The language of Edwards is unequivocal;

an accused who has asserted his right to

counsel “is not subject to further

interrogation by the authorities until

counsel has been made available to him."

451 U.S. at 485, 101 S.Ct. at 1885. The

rule prohibits "further interrogation."

Nowhere in Edwards does the majority

indicate that reinterrogation.of the

accused is permissible if the authorities

merely shift the line of questioning to

other matters or unrelated offenses.

Such a rule would render the Edwards

opinion meaningless and invite the

ingenious officer to invent new schemes

to produce colorable waivers of the fifth

amendment rights.

-15-

The assertion of the right to counsel

is an expression by the accused that he

is not competent to deal with the

authorities without legal advice.* See

Edwards v. Arizona, supra. The

resumption of questioning in the absence

of an attorney after an accused has

invoked his right to have counsel present

during police interrogation strongly

suggests to an accused that he has no

choice but to answer. Thus, “a later

decision at the authorities’ insistence

to make a statement without counsel's

presence may properly be viewed with

skepticism.” Michigan v. Mosely, 423 ;

u.8. @€ ill, an. 2, 96 €.C&. Bt 329

(White, J., concurring).

We therefore hold that, after

requesting counsel during the initial

interrogation, the appellant should not

have been subjected three days later to

interrogation which he did not initiate,

without counsel having been made

available to him.

Regarding the statement to Locksa, we

note that it was admitted as impeachment

evidence on cross examination of the

appellant rather than in the State's case

in chief. In Harris v. New York, 401

4. In contrast, the U.S. Supreme court

has stated that the assertion of the

right to silence is merely an expression

of the accused's desire to cut off

questioning with respect to a specific

subject. The lines of communication

between the accused and the authorities

remain open, as the accused has chosen to

make his own decisions in regards to

future police interrogation. See

Michigan v. Mosley, supra.

-16—

U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1

(1971), the U. S. Supreme Court held that

a Miranda violative statement that is

inadmissible against a defendant in the

prosecution's case in chief, may, if its

trustworthiness satisfies legal

standards, be used for impeachment

purposes to attack the credibility of the

defendant. The State contends that the

remarks to Locksa were properly admitted

to attack the appellant's credibility by

cross-examining him on the

inconsistencies between his hospital

statement to Detective Locksa and his

statements at trial.

In State v. Swinburne, 116 Ariz. 403,

569 P.2d 833 (1977), we stated:

In Oregon v. Hass, 420 U.S. 714, 95

S.Ct. 1215, 43 L.Ed.2d 510 (1975),

the Supreme Court held admissible for

impeachment purposes inculpating

post-arrest statements of the

defendant made after he had been

given his Miranda rights and

exercised his right to request a

lawyer, but before he had been

furnished with counsel. The court

said that evidence which is otherwise

inadmissible against the defendant in

the prosecution's case in chief is

not barred for all purposes, provided

that “the trustworthiness of the

evidence satisfies legal standards." .

420 U.S. at 721, 95 S.Ct. at 1221, 43

L.Ed.2d at 577. State v. Swinburne,

supra, 116 Ariz. at 412, 569 P.2d at

842.

It is clear, therefore, that statements

obtained in violation of an accused's

fifth amendment right to counsel may be

=] Fo

used for impeachment purposes to attack

the credibility of the accused. See

State v. Swinburne, supra, and Oregon v.

Hass, supra. In the instant case,

however, the jury was not instructed as

to the restricted and limited purpose for

which the statements could be considered,

namely, impeaching the appellant's

credibility. In both Harris and Hass the

federal supreme court carefully noted

that specific instructions were given to

the jury concerning the limited purpose

for the use of such testimony.

In the event of retrial the statement

to Locksa may be used by the state for

impeachment, but proper instructions to

the jury must be given to limit the use

of such testimony to the issue of

credibility of appellant and not as

evidence of guilt.

EVIDENTIARY ISSUE

Appellant contends that the trial court

erred in admitting into evidence

photographs of the victim and a bloody

shirt found at the scene. He argues that

these items had no probative value, were

highly prejudicial, and their admission

only served to inflame the jury.

Evidence which may tend to incite the

jury's emotions is admissible if it is

relevant and if its probative value

outweighs the danger of unfair prejudice

created by its admission. State v.

Chapple, No. 5054 (Ariz., filed Jan. ll,

1983); State v. Gerlaugh, 134 Ariz. 164,

654 P.2d 800 (1982); Rule 403, Ariz. R.

of Evid., 17A A.R.S. In making this

determination, the court will look to the

-18-

purpose of the offer. State v. Chapple,

supra. Photographs are admissible to

identify the victim, to illustrate how

the crime was committed, to aid the jury

in understanding testimony, and to show

the location of the wounds. State v.

Navarre, 132 Ariz. 480, 647 P.2d 178

(1982); State v. Vickers, 129 Ariz. 506,

633 P.2d 315 (1981). The purpose for

which the photographs are admitted must,

however, be a contested issue. State v.

Chapple, supra.

In the instant case, the photographs

showed the location and extent of. the

victim's wounds. Because the appellant

asserted self defense at trial, the

location of the wounds was evidence to

contradict appellant's story and to

support the state's theory of how the

homicide was committed. See State v.

Gretzler, 126 Ariz. 60, 621 P.2d 1023

(1980). The wounds found on the victim's

hands and in the back of his head are

probative evidence that the defendant was

not acting in self defense and that the

victim may not have been lying down

during the attack, as appellant

testified. The extent of the wounds 4lso

tends to show that the appellant was not

acting in self defense. Furthermore, the

photographs aided the jury in

understanding the pathologist's testimony

as to the wounds on the victim. See

State v. Navarre, supra.

Trial courts have great discretion in

the admission of photograhs. State v.

Schad, 129 Ariz. 557, 633 P.2d 366

(1981); State v. Clark, 126 Ariz. 428,

616 P.2d 888, cert. denied, 449 U.S.

1067, 101 S.Ct. 796, 66 L.Ed.2d 612

(1980). This discretion will not be

-19-

disturbed unless it has been clearly

abused. State v. Gerlaugh, supra.

Although the photographs are of the type

that may arouse the emotions of some

jurors, we cannot conclude that the trial

court abused its discretion in finding

that the probative value of the

photographs outweighed the danger of

unfair prejudice attendant to their

admission. We find no error.

As to the shirt, however, we agree with

the appellant that its admission was

error. The State argues that the shirt

also corroborated its theory of the

murder and, therefore, is admissible.

The shirt by itself, however, proves

nothing. It is only its-tocation and

condition after the murder that is

relevant to the State's case. The

admission of gruesome objects when they

add nothing to the evidence to be

considered by the jury and serve no other

purpose than to inflame the jury is

error, State v. Steele, 120 Ariz. 462,

586 P.2d 1274 (1978), and we so find in

this case.

ATTEMPTED MURDER CHARGE

The appellant finally contends that the

trial court erred in failing to grant his

motion for judgment of acquittal on the

count of attempted murder.

The standard of review to test the

sufficiency of evidence on appeal is

whether there exists substantial evidence

from the entire record from which a

rational trier of fact could have found

guilt beyond a reasonable doubt. State

v. Tison, 129 Ariz. 546, 633 P.2d 355

-20-

> ee

(1981); State v. Schad, 129 Ariz. 557,

633 P.2d 366 (1981), cert. denied, 455

U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 693

(1982). The evidence will be reviewed in

the light most favorable to sustaining

the verdict and all reasonable inferences

will be resolved against a defendant.

State v. Tison, supra; State v. Hall, 129

Ariz. 589, 633 P.2d 397 (1981).

To sustain a conviction for attempted

murder, the evidence must show some overt

act or steps taken toward the commission

of the crime and an intent to commit the

crime. State v. Savchick, 116 Ariz. 278,

569 P.2d 220 (1977); State v. Mandel, 78

Ariz. 226, 278 P.2d 413 (1954); A.R.S.

§ 13-1001(A)(2). Criminal intent, being

a state of mind, is shown by

circumstantial evidence. Defendant's

conduct and comments are evidence of his

state of mind. State v. Vann, ll

Ariz.App. 180, 463 P.2d 75 (1970).

The record reveals that as Robert

Barrick was getting out of the canal, he

was hit in the head with a hammer by the

defendant. According to Barrick's

testimony, he was “knocked out” for a few

seconds and floated down the canal,

during which time appellant followed

alongside the canal. Routhier asked

Barrick if he had any money and ordered

him out of the canal with the threat that

if he did not do so, Routhier would hurt

his father. Barrick got out on the

opposite side of the canal and climbed up

to the freeway to summon help. As he did

so, appellant continued to yell at

Barrick to “get over there."

There is substantial evidence that

appellant performed an overt act toward

-21-

the commission of the crime. The

appellant struck Barrick in the head, a

vital arca of the body, with a dangerous

instrument. There is also evidence from

which a rational trier of fact could have

found that the appellant had the

requisite intent to be guilty of

attempted murder. Appellant had just

severely beaten Lawrence Barrick. He

followed Robert Barrick along the canal

and ordered him to get out after once

hitting him with the same instrument that

killed his father. While the evidence is

not overwhelming, it is substantial. See

State v. Tison, supra; State v. Bearden,

99 Ariz. 1, 405 P.2d 885 (1965). We find

no error.

The conviction for first degree murder

and for attempted first degree murder are

reversed and the case remanded to the

superior court for a new trial.

WILLIAM A. HOLOHAN, Chief Justice

CONCURRING:

FRANK X. GORDON, JR., Vice Chief Justice

JACK D. H. HAYS, Justice

JAMES DUKE CAMERON, Justice

STANLEY G. FELDMAN, Justice

3031D:bb

=Z9—

we

APPENDIX "B"

APPENDIX "“B"

IN THE SUPREME COURT

OF THE STATE OF ARIZONA

STATE OF ARIZONA,

Appellee,

DENNIS EARL ROUTHIER,

Appellant.

Supreme Court No. 5390

Appeal from the Superior Court

of Maricopa County

Cause No. CR-115186

The following action was taken by the

Supreme Court of the State of Arizona on

September 13, 1983 in regard to the

above-entitled cause:

“ORDERED: Motion for Rehearing =

DENIED. "

Copy of Order Reversing Convictions and

Remanding for New Trial enclosed.

S. ALAN COOK, Clerk

By GAIL JACKSON

Deputy Clerk