Petition — Edwards v. Arizona

% RECEIVED

AUG 28 1979

OFFICE OF THE CLERK

SUPREME CouRT, U.S.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

te 7H - 5569

ROBERT EDWARDS, Petitioner

Vv.

THE STATE OF ARIZONA, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE ARIZONA SUPREME COURT

MICHAEL J. MEEHAN

P. O. Box 2268

Tucson, Arizona 85702

Counsel for Petitioner

August 27, 1979

INDEX

Opinion below ........cceeeeeececcccccececenesesscescsscecseessseeees

JUFISGICTION 2.0... ccc cece eee c eee eeeeccececeeeceeeesseeesseeeeeeees

Questions Presented .........seeeeeeeeeeeeceececccesesssassaseeeeeens

Constitutional Provisions Involved ..........-eeeeeeeeeererreeeeeeenes

Statement of the Case ........cccccccccccccccccccccccrecsssceeseseses

Reasons for Granting the Writ .........cee eee eee eee eee eeeeenreneens 11

F The Confession Obtained Before Counsel was

NE oo. g 6 o's dn pd 6oobd500 2 CO Hd eeKeEEeEESONSSESEOEOHE 11

we Trial in Prison Garb .......cccccccccccccccccccscsccccese 15

3. The Invocation of the Overly Harsh Sanction

Oe DMI aon ks biniee ic cseeniescntnedecepesacveesevceses 16

4. The Arizona Court Utilizing the Constitutional

Right of a Defendant to Conduct his Own

Defense as Justification for Comment Upon

His Failure to Take the Stand ..........seeeeeeeeeeeees 17

8 ics cc cc crbncbacecdcsccsccescecstoucsateevsnsosenvesss 18

Appendix

a Opinion of the Arizona Supreme Court

Dated March 27, 1979 ......cccccccecccccccccecvecs App. A

2. Order Remanding for Resentencing on Murder

Conviction Dated March 27, 1979 ........eseeeeeees App.

3. Order Denving Rehearing dated May 1, 1979 ...... App.

4. Order From the Superior Court Resentencing

to Life Imprisonment ...........eeee ec eeeee ee eeeees App. D

ae Abbreviated Record References ..........0-+++ee0: App.

CITATIONS

Cases: °

Brewer v. Williams, 430 U.S. 387, 406, n. 11 (1977) ...... Sen dnnwe es 12, 14

Coughlan v. United States, 391 F.2d 371 (9th Cir. 1976) ....ccceceee 14

Estelle v. Williams, 425 U.S. 501 CIGTE) .nccccccccccccvecsccccesccces 15, 16

eis

Fare v. Michael, C., U.S. (78-334 6/20/79) ....... 12

Faretta VY. California, 422 U.S. 806 ME Siler vdiewseica de. 17, 18

Griffin Y- California, 380 U.S. 609 SPT ese thes envi seues. .c, 17, 18

Mathies v. United States, 347 F.2q 312 (D.C. Cir. OPE tesinuas 13

Michigan VY. Mosley, 423 U.S. 96 sy gk ee 6, 12, 15

Miranda vy Arizona, 384 U.S. 436 WIP Sis 0 toienssscerceec.. 12, 13, 15

Nash v, Estelle, 560 F.2d 652 (Sth Cir. 1977), rehearing

en banc granted 560 TORS ht che seeele es cassicc 13

State Y. Chitwood, 73 Ariz. 161, 239 P.2d 353 (1951) Feebaebuetawe o.. 16

State of Arizona Vv. Robert Edwards, 594 P.2d 72 (1979) .... 1, 4, 5, 7, 10

State v. Ford, 108 Ariz. 404, 499 P.2d 699 ite ci 16

United States v. Priest, 409 F.2d 491 (Sth a a 13

United States ¥. Riencke, 416 F.2d 69 (2d Cir. MO Sengiennigs el 14

United States Vv. Rodri uez-Gastelum, 569 F.2d 482

(9th Gir. 1978), cert. denied, 436 apa cas ee I 13

United States Y. Springer, 460 F.2q 1344 (7th Cir, Pe lac 13

United States ¥. Thomas, 474 F.2d 110 (10th OP cstcc ir 14

Waridus vy. Oregon, 412 U.s. BPE 08a bones ecsercccvecsccc,. 17

Washington Y. Texas, 388 U.s. 14 ita ee 17

Williams ¥. Florida, 399 U.S. 28 FIR snouedsesnssceosc sc... 17

Wilson Vv. United States, 398 F.2d 331 (Sth Cir. WE Sites cin sce a 14

MISCELLANEOUS:

28 U.S.C. rte epcncceccs 2

17 A.R.sS Rules of Criminal Procedure Wy ihsiiy dae TD 7

17 A.R.S Rules of Criminal Procedure FO TBE noes ivcnssncocees 7

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No.

ROBERT EDWARDS, Petitioner,

vs.

STATE OF ARIZONA, Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE ARIZONA SUPKEME COURT

Petitioner, Robert Edwards, respectfully prays that a Writ of

Certiorari issue to review the judgment and opinion of the Arizona Supreme

Court entered in this proceeding on March 27, 1979.

OPINION BELOW

The opinion of the Arizona Supreme Court, reported at 594

P.2d 72, appears in Appendix A hereto.

JURISDICTION

The judgment of the Arizona Supreme Court was entered on

March 27, 1979. It remanded the case to the trial court to resentence

Petitioner on the murder conviction. The order is Appendix B to this

Petition. A timely motion for rehearing was denied by the Arizona Supreme

Court on May 2, 1979. That order is Appendix C to this Petition. On 18

July 1979, Mr. Justice Stevens entered an order under this Court's Docket

No. A-48, extending the time for filing a petition for writ of certiorari to

and including August 29, 1979. On July 20, 1979, the Pima County

Superior Court entered its order, in its Case No. A-30683, setting aside

|

the sentence of death it had previously imposed upon Petitioner, and

imposing a sentence of life imprisonment upon him. The order of the

Superior Court of the State of Arizona in and for the County of Pima, is

attached as Appendix B to this Petition. Petitioner's conviction and sen-

tence having thereby become final, as has the opinion and order of the

Arizona Supreme Court, the jurisdiction of this Court is invoked under 28

U.S.C. §1257(3).

QUESTIONS PRESENTED

ae Whether the Fifth, Sixth, and Fourteenth Amendments

require suppression of a post-arrest confession, which was obtained after

Edwards had invoked his right to consult counsel before further interroga-

tion; which resulted from a jailhouse interrogation that Edwards objected to

but was compelled to attend after being held in solitary confinement over-

night; and where the interrogation was instigated by detectives who timed

the questioning to occur just hours before they knew he was to be provided

appointed counsel.

2. Whether the presumption of innocence guaranteed by the

Fourteenth Amendment was violated when the trial was conducted over

Edwards’ objection at having to appear in "jailhouse slippers and clothes".

3. Whether completely precluding a defense witness from giving

admissible testimony, as a sanction for untimely compliance with Arizona

discovery procedures, violates the compulsory process guaranteed by the

Sixth and Fourteenth Amendments, where there was virtually no showing

that the State was in any way prejudiced by the tardy disclosure of the

name of the witness.

4. Whether the prosecutor's summation violated Edwards’ Fifth

Amendment rights by his repeated comment on Edwards' failure to testify;

which error was said to have been invited by the fact that Edwards con-

ducted his own defense and summed up for himself.

5. Whether a delay of fourteen months from airest to trial vio-

lated Edwards' Sixth Amendment right to a speedy and public trial, which

he repeatedly asserted.

CONSTITUTIONAL PROVISIONS INVOLVED

The Constitution of the United States provides:

Amendment XIV: ". . . nor shall any state deprive

any person of life, liberty, or property, without due

process of law,. . ."

Amendment V: “No person. . .shall be compelled in

any criminal case to be a witness against him-

Amendment VI: "In all criminal prosecutions, the

accused shall enjoy the right to a speedy and public

trial, by an impartial jury. . .to have compulsory

process for obtaining witnesses in his favor, and to

have the Assistance of Counsel for his defense."

STATEMENT OF THE CASE

In October, 1974, the "La Conga" bar in Tucson, Arizona was

robbed at gunpoint, just as the proprietor and a barmaid were closing for

the evening. The proprietor, 74 years old, suffered a fatal heart attack

during the robbery. Petitioner Robert Edwards was one of four individuals

implicated by a felon and heroin user named Cleveland Reed who was appre-

hended during 1975 by the Tucson police on other criminal charges, and

given complete immunity from all prosecution related to the La Conga bar

incident, as well as special treatment in connection with other criminal

charges. Edwards, an indigent black, was arrested on January 19, 1976,

on a warrant charging him with murder, burglary, and robbery. Edwards

was ultimately convicted of first degree felony murder, as well as burglary

and robbery. He was first sentenced to death, but later given life impri-

1

sonment.”- One co-defendant was similarly convicted and senteiiced, while

another was acquitted of felony murder by a jury, and convicted of the

1 The change in sentence was a result of the Arizona Supreme Court

applying the Locket and Bell decisions of this Court to invalidate certain

‘portions of the Arizona death sentencing statute.

burglary and robbery charges. Cleveland Reed, of course, went completely

free.

After Edwards’ arrest on January 19, 1976, he was taken to the

Tucson Police Station, read his Miranda rights, .and interrogated over a

period of about two and one-half hours by Police Detective Sergeant

Bunting and two other officers. At that time, Edwards gave an alibi state-

ment, which was tape recorded and ultimately received in evidence at his

trial. He then spoke with the detectives about making a deal, and said

that he would wait to make a deal until he had spoken to an attorney. At

a pre-trial motion to suppress Marmion's testimony of a confession the next

day, the trial judge concluded that the statements by Edwards on the

evening of his arrest constituted a claim of the right to consult counsel

before making any statements. On Appeal, the Arizona Supreme Court

agreed that Edwards had invoked his Sixth Amendment right to consult with

counsel before breaking his silence. The Arizona Supreme Court said that

“looking at Edwards' statement in the context made, that . . . it must be

interpreted as a request for counsel and as a request to remain silent until

counsel was present". 594 P.2d at 77, Appendix A, infra.

Edwards was taken from the police station to the jail, where he

was held in solitary confinement overnight. As the dissenting opinion below

notes, the next morning a jail detention officer told Edwards that detectives

were there to see him. Edwards told the officer that he did not wish to

speak to anyone. The detention office told him that he had to.

Appendix A, infra, 594 P.2d at 83. Edwards was thereupon taken to an

interrogation room, where Detectives Marmion and Milne were waiting to

question him, "knowing that an attorney would not be appointed for him

until the afternoon". Appendix A, infra, 594 P.2d at 83.

The Arizona Supreme Court noted that these detectives,

although from the same section as Detective Bunting who had questioned

Edwards the day before, did not know that he had made the statement

about an attorney. But Bunting, to whom the request had been made, had

instructed Detective Milne to go to the jail to interview Edwards. II P 58.7

Edwards was read his Miranda rights at the jail interrogation,

and when asked at the supression hearing before trial why he had not once

again told these detectives that he wanted an attorney, he responded: "I

didn't think you had to keep asking for an attorney over and over and

over." Appendix A, infra, 594 P.2d at 83. According to the detectives,

Edwards then said that he would tell them anything they wanted to know,

but did not want any such comments tape recorded, because he did not

want the statement used against him. The detectives testified that they

explained to him that even unrecorded, oral statements could be presented

against him at trial, and that Edwards then made inculpatory statements.

After leaving the interrogation room, Detective Marmion tape

recorded his recollections of the interview, and thereafter testified at the

trial, that Edwards had confessed.

On the afternoon of the day that Edwards had been inter-

rogated at the jail over his objections, he was appointed counsel at his

initial court appearance. Three or four days later, the detectives went

back to the jail to attempt to obtain a statement from Edwards, but he

declined to say anything.

At the suppression hearing the trial court initially suppressed

the confession, holding that Edwards had exercised his rights to remain

silent and to have advice of counsel before making any statements, and that

this decision had not been scrupulously honored by the police, nor had

these rights been waived. VM 39-41. Three days later, the Court

2 Reference is to the record that was before the Arizona Supreme Court,

which included many volumes of trial transcript from both the first and

second trial as well as photostated pleadings and instruments filed with the

trial court. Abbreviations are explained in Appendix E to this Petition.

changed its mind, on the basis of an Arizona opinion that had not been

earlier cited to him, and concluded that this Court's opinion in. Michigan v.

Mosley, 423 U.S. 96, 96 S. Ct. 321 (1975) permitted the police conduct that

obtained the confession.

On appeal, Edwards reasserted his Fifth and Sixth Amendment

claims that the confession should have been suppressed, which had first

been raised at the pre-trial suppression hearing. As has been noted, the

Arizona Supreme Court agreed that Edwards had invoked his rights to

remain silent and to have counsel before making further statements, on the

evening of his arrest. Over dissent, however, it concluded that these

rights were voluntarily and knowingly waived, and that the confession was

therefore properly admitted.

Edwards chose to represent himself and conduct his own

defense. It took two trials to convict him; there first having been a

mistrial when the jurors could not reach a verdict.

At the beginning of the second trial, Edwards objected to being

"in front of the jury in slippers and jailhouse clothes presenting the case to

them". I Tr 9, 10. Edwards had been incarcerated in the Pima County

Jail ever since his arrest on January 19, 1976. During the first trial

Edwards had been provided with "civilian" clothing which he advised the

Court, at the beginning of his second trial, the Sheriff's officers at the jail

had either lost or misplaced.

Later in the same, first day of the trial, Edwards reiterated his

objection to being tried in jailhouse clothes, saying, "They [the jury]

know, if they have been in Arizona a long time, they know jailhouse clothes

and I would not like to be presiding in the courtroom with jailhouse clothes.

I think they would preclude [conclude] from some kind of reasoning. I

think that would be a prejudicial factor to me." I Tr. 73. The judge

perceived the problem, suggesting that perhaps clothing from the Salvation

Army ought to be obtained. Id. at 74. At the time of Edwards’ comment,

the State made no objection, nor voiced any disagreement with Edwards'

description of his clothing as being jailhouse clothes that the jurors would

recognize as such.

On appeal, Edwards urged in his brief that the presumption of

innocence, guaranteed to him by the Fourteenth Amendment Due Process

Clause, was violated by his trial in prison garb. The State contended that

Edwards should have continued to object and establish a record that he

remained in prison garb during the rest of the trial. The Arizona Supreme

Court found no error, saying, "There is no indication in the record that

Edwards' prison clothes were identifiable as such". Appendix A, infra, 594

P.2d at 81.

Like many states, Arizona has a system of pre-trial discovery

and disclosure by which the defendeat is obliged to apprise the State of

witnesses he intends to call, and defenses he intends to invoke, after the

State has made certain disclosures of its own case. Edwards timely dis-

closed an alibi defense, although all but one of his alibi witnesses were un-

locatable due to the delay in bringing him to trial. The discovery proce-

dures for Arizona criminal cases are found generally in Rule 15.2, et seq.

of the Arizona Rules of Criminal Procedure, Volume 17, Arizona Revised

Statutes Annotated. Rule 15.2 requires that the defendant provide the

prosecutor with written notice of defenses to be invoked and witnesses to

be called for each defense, all to be done within twenty days after the

arraignment in the Superior Court. Rule 15.7 lists five sanctions that are

available to the Court for failure by a party to comply with the disclosure

and discovery rules. They include ordering disclosure of the information,

granting a continuance, invoking contempt powers against the party or

counsel, preclusion of witness' testimony, and declaring a mistrial when

necessary to prevent a miscarriage of justice.

During the second trial, on the morning of April 22, 1977,

Edwards advised the Court and the prosecutor that he was then disclosing

a defense witness, who would testify that Edwards had been extremely

intoxicated at a party Campbell attended, at 6:00 p.m. on the evening when

the robbery occurred. The prosecutor immediately objected that the dis-

closure was untimely. The Court ordered the witness to be madé available

for an interview by the prosecutor, and it was conducted at the lunch

break. The prosecutor and one of his investigators recorded a fifteen

minute interview with Mr. Campbell on Friday. IV Tr. 6-7. Three days

later, on 25 April, the Court accepted an offer of proof from witness

Campbell, heard argument on the State's request to preclude the witness,

and imposed the sanction of prociasion. Edwards argued that the State had

had an opportunity to investigate the proposed testimony of the witness,

saying, "This is my defense. . .I think he will tell you about my where-

abouts and then I have him as a credible witness and I have Mrs. Dolores

to testify about my whereabouts after 6:00. This is the main factor in my

case and the main credible witness that I will present to the court in my

defense." IV Tr. 12. The State made no motion for a postponement, nor

did the Court consider any other sanction.

On appeal, Edwards contended that preclusion of the witness

violated his Sixth Amendment right to call witnesses, on the ground that

there was no showing made of the need for such a severe sanction as pre-

clusion. The Arizona Supreme Court, although recognizing that the testi-

mony of Campbell was probably admissible, held that Campbell's preclusion

did not prejudice Edwards to the extent that he was denied a fair trial, and

therefore found no error.

Edwards' confession figured prominently in the summation of the

case. At the beginning of his, the prosecutor wrote on an easel board, for

the jury to view, the words “Defendant Confessed". At the beginning of

his closing argument, Edwards then wrote on the easel board "The defen-

dant did not confess". He then proceeded to argue the inferences available

from the evidence in the record. The Arizona Supreme Court concluded

that statements about defendant not having confessec were made by

Edwards without support in the record, but that was cleariy not so.

Indeed, the prosecution's brief to the Arizona Court, on

page 15, recognizes thit Edwards was doing no more than arguing infer-

ences from the evidence in the record, as his counsel would have been per-

fectly proper in doing had counsel instead of Edwards been doing the

summation.

For example, Edwards argued that because the two interro-

gating detectives, Marmion and Milne, only gave testimony of an oral con-

fession, and had no evidence of a written confession, the jury should con-

clude that Edwards did not confess and should "take that into what we call

into consideration, into evidence". V Tr. 111, 127, 128. He also referred

to the alibi statement that was admitted into evidence, saying "[a]s you

heard in my statement, I was at a party" by which as the State acknowl-

edged he was referring to the taped statement.

In his rebuttal argument, the prosecutor then made the follow-

ing comments, which were interrupted by motions for a mistrial by the

defense on the grounds that they constituted an impermissible comment on

Edwards' failure to take the stand. The prosecutor said:

"What evidence is there that he did not con-

fess? Did any witness come in here and say on the

witness stand under oath that there was no con-

fession, there was no confession and the police are

lying, there was no confession? That incident never

occurred. This incident never occurred.

No, ladies and gentlemen, nobody testified to

that. No witnesses were called that testified about

that confession being made. No witnesses whatso-

ever." V Tr. 138139.

"The most conclusive statement is his own state-

ment. He never said he didn't confess other than

writing it on the easel.

He told you he wasn't involved in the crime, he

wasn't guilty. Here he told you that like I'm telling

you, like I'm talking to you, not under oath.

I think you have to consider al] the evidence in

this case before you make up your minds about the

case." V Tr. 147.

The Court denied two motions for a mistrial on the grounds that these com-

ments drew the jury's attention to Edwards' failure to take the stand and

testify. V Tr. 140, 148.

On appeal, Edwards argued that his Fifth Amendment right to

remain silent was violated by these comments, but the Arizona Supreme

Court held that the prosecutor's statements were invited by Edwards’ error

and therefore not grounds for reversal. This ruling was predicated on the

erroneous misapprehension that there was no evidence in the record from

which one could argue that Edwards had not confessed.

Edwards' conviction came 14 months after his arrest. Before

the trial, the indictment had been dismissed because of irregularities in tue

Grand Jury proceedings. The State chose to spend four months appealing

that ruling, rather than to have Edwards reindicted, which could be done

(and which ultimately was done) within a matter of days. After being rein-

dicted, Edwards filed Motions to Dismiss for Violation of His Rights to a

Speedy Trial, on September 7, 1976 (R. 24) and on January 5, 1977

(R. 52(b)). He also filed a Notice of Impending Expiration of Time Limit, a

pleading required by the Arizona Criminal Procedure Rules, to apprise the

Court that deadlines created by State procedure were about to expire. As

part of his motions on speedy trial grounds, Edwards provided an affidavit

of an investigator that three alibi witnesses had been lost track of because

of the time delay. (R. 37.) One of the alibi witnesses was ultimately

located, but gave only hazy testimony at best. On appeal, the Arizona

Supreme Court agreed that Edwards did adequately and repeatedly assert

his right to a speedy trial, Appendix A, infra, 594 P.2d at 80. It con-

cluded, however, that there was insufficient showing of prejudice because

he could not prove that the loss of the alibi witnesses was caused by the

delay. Of the fourteen months between arrest and ultimate tria!, the Court

e Me

—

concluded that only four months were caused by the Stat2. (Edwards had

filed two motions for postponement when he was unable to locate his alibi

witnesses. )

After the first trial resulted in a hung jury, Edwards was

immediately retried, and ultimately convicted on felony murder, robbery and

burglary counts. He was originally sentenced to death, but after appeal,

and remand for resentencing on the capital count, he was sentenced to life

imprisonment on the felony murder count. The Supreme Court affirmed the

convictions, and Edwards' convictions and sentence have become final.

REASONS FOR GRANTING THE WRIT °

The opinion of the Arizona Supreme Court sanctions a convic-

tion that depended in great part upon an intentional deprivation of

Edwards' right to counsel at the one most critical stage when it was

needed - when his confession was being sought. It allowed the fact that he

served as his own counsel and made his own final argument to be used to

penalize him for failing to take the stand. In both instances the opinion of

the Arizona court squarely conflicts with cases of this Court interpreting

the constitutional guarantees claimed by Edwards. Other errors of the

Arizona court in precluding witnesses, forcing Edwards to trial in prison

garb, and delaying Edwards' trial, all conflict with cases of this Court

recognizing these matters as critical in deciding whether a defendant was

afforded a fair trial.

1. The confession obtained before counsel was furnished.

Edwards is an indigent, and was at the time of his arrest. The

facts of this case present a familiar pattern and, if undisturbed, a distres-

sing precedent for conduct by arresting officers during that period between

arrest and the initial court appearance when a lawyer will normally be

appointed for indigent defendants.

In this case, Detectives Milne and Marmion knew that if they

did not get out to the jail and interrogate Edwards in the morning, he

» 32 <

would have counsel appointed at 1:30 p.m, that same afernoon. There-

after, prospects for getting a statement were dim, as was demonstrated by

the lack of results when Marmion revisited Edwards several days later.

Edwards was in custody under the authority of a warrant charging him with

felony murder. The purpose of the interrogation, therefore, was to

develop trial evidence and not to determine who the perpetrator of the

offense was. The interrogation was planned to occur before the State

could, in the normal prosecutorial procedures, fulfill its obligation to allow

Edwards to consult counsel as he had chosen to do.

The Arizona Court simply did not recognize that different

principles flow from Miranda for those instances where an accused has

claimed his right to counsel, before further custodial interrogation, then

apply for waivers of a previous decision simply to remain silent. This

Court said in Miranda:

"If the individual states that he wants an attor-

ney, the interrogation must cease until an attorney is

present. At that time, the individual must have an

opportunity to confer with the attorney and to have

him present during any subsequent questioning. If

the individual cannot obtain an attorney and he

indicates that he wants one before speaking to police,

they must respect his decision to remain silent."

Miranda v. Arizona, 384 U.S. 436, 473-74 (1966).

That principle has been reiterated often, in the thirteen years since

Miranda was decided. E.g., Michigan vy. Mosley, 423 U.S. 96, 101, n. 7

(1975). ("{ Mosley] does not involve the procedures to be followed if the

person in custody asks to consult with a lawyer"); Brewer v. Williams, 430

U.S. 387 (1977); Fare v. Michael, C., U.S. , (78-334 6/20/79)

("{T]he Court fashioned in Miranda the rigid rule that an accused's request

for an attorney is per se an invocation of his Fifth Amendment rights,

requiring that all interrogation cease.").

In the kind of situation found in this case the police have

intentionally frustrated Edwards' decision to get legal advice before

speaking further with them. They immediately opened a new interrogation

e 12

before he could speak to his lawyer. As Mr. Justice Stevens has written in

another case:

"The sole purpose of the visit was to obtain

evidence for use at the trial. Accepting the prose-

cutor's evidence as true, defendant's participation in

the crime had already been established and, therefor,

no further investigation was necessary. The work of

the agents was trial preparation, pure and simple.

In a civil context I would consider this behavior

unethica. and unfair. In a criminal context I would

regard it as such a departure from ‘procedural regu-

larity' as to violate the due process clause of the

Fifth Amendment. If the evidence of guilt is as

strong as the prosecutor contends, such direct com-

munication is all the more offensive because it was

unnecessary. If there is doubt about defendant's

guilt, it should not be overcome by a procedure such

as this. United States v. Springer, 460 F.2d 1344,

1354, 55 (7th Cir. 1972) (Stevens, J. dissenting).

Chief Justice Burger, writing as a Circuit Judge, concluded that post-

arrest interrogations of an accused who has counsel are prohibited by

Miranda unless counsel has been given an opportunity ‘to be present.

Mathies v. United States, 347 F.2d 312, 316 n. 3 (D.C. Cir. 1967)

(Burger, J.).

The Courts of Appeal have divided on the question whether this

Court meant what it said in Miranda, that when an accused claims his right

to counsel before further questioning, all questioning must cease until

counsel is provided. Compare, United States v. Rodriguez-Gastelum, 569

F.2d 482 (9th Cir. 1978), cert. den., 436 U.S. 919 (although government's

"burden is greater . . . to show a waiver after the right to counsel has

been asserted than . . . a waiver of the right to remain a silent," there is

no “blanket prohibition against further questioning") with, Nash v.

Estelle, 560 F.2d 652, 656 (Sth Cir. 1977), rehearing en banc granted 560

F.2d 660; United States V. Priest, 409 F.2d 491 (57th Cir. 1969) ("where

there is a request for an attorney prior to any questioning. . . a finding

of knowing and intelligent waiver of the right to an attorney is

impossible").

-13-

<4

The Circuits have also divided over the question of whether an

accused can be interrogated after he has been appointed counsel and con-

sulted with him, without letting that counsel know of the planned interview.

Compare, United States v. Thomas, 474 F.2d 110 (10th Cir. 1973) (holding

that once a defendant has an attorney, statement obtained by interview may

not be offered unless accused's attorney was notified of interview and given

a reasonable opportunity to be present); United States v. Riencke, 416

F.2d 69 (2nd Cir. 1969) (statement excluded because interrogator persisted

in questioning even though he knew accused was waiting for an attorney to

speak with him); with, Coughlan v. United States, 391 F.2d 371 (9th Cir.

1976); Wilson v. United States, 398 F.2d 331 (5th Cir. 1968) (criticizing

interrogation of accused who had counsel, without counsel knowing of it,

but permitting a finding of waiver). This Court has noted the circuit con-

flict, but has not been obliged to resolve it. Brewer v. Williams, 430 U.S.

387, 406, n. 11 (1977) (finding no waiver of right to counsel, therefor not

reaching the matter of whether it can be waived without counsel knowing of

the interrogation).

This is perhaps a case like Brewer, in that no waiver of the

previously claimed right to counsel can be found on this cecord. Edwards

was held in solitary confinement overnight, told he must speak with his

interrogators, said that he did not at that point reiterate his request for

counsel because he didn't think you had to do it “over and over and over",

and said he would speak but wanted no statement used against him and

therefor would give no recorded statement. There was surely no knowing,

intelligent, voluntary choice demonstrated, during the hurried interroga-

tion, which can be said to establish a waiver by Edwards of his rights to

consult counsel and remain silent.

This cause should be taken so that the divisions among the

Courts of Appeal can be resolved, as to whether police can, themselves,

renew attempts to obtain statements after an accused has either asked for

° i4-

counsel (and not gotten it) or has obtained counsel but the police secretly

seek to get the accused to change his mind about giving them a statement.

It presents a fairly typical fact pattern - an accused, electing to consult

counsel, having to wait for a time, perhaps up to twenty-four hours before

counsel is appointed for him at a first court appearance, and police attempt-

ing to intervene and obtain statements within that time.

The rule accepted by the Arizona court, agreeing with the

Ninth Circuit, squarely conflicts with what was said in Miranda, and this

Court's reaffirmation in Michigan v. Mosley, 423 U.S. 96 (1975), that if an

individual states during questioning that he wants to consult with an attor-

ney, interrogation must cease until an attorney is present, and that these

procedures are different from those in which an individual simply asks to

remain silent. 423 U.S. at 101, n. 7 and at 104 n. 10.

As Justice White noted in his concurrence in Mosley, there are

reasons to keep lines of communicaton open between authorities and the

accused when the accused chooses to remain silent, which are not present

when the accused has instead chosen to obtain legal advice. In the latter

circumstance, authorities may communicate with the accused through the

attorney. Where the accused has expressed a preference to consult an

attorney, he thereby indicates his own feeling that he cannot competently

deal with authorities without legal advice, and "a later decision at the

authorities' insistence to make a statement without counsel's presence may

properly be viewed with skepticism". 423 U.S. 98 at n. 2.

2. Trial in Prison Garb.

This Court has held in Estelle v. Williams, 425 U.S. 501 (1976)

that an accused cannot be compelled to go to trial in prison clothing, lest

the jury regard him as likely to be guilty. The Court alsc concluded, how-

ever, that some might deem a trial in prison garb a way to elicit sympathy

from a jury, and therefore, elect to be tried that way. Accordingly,

before error can be claimed, an objection must be made to being tried in

e 18 ©

jail clothing. Rather than to disagree with this analysis, however, the

Arizona court chose to misapply the facts, and conclude that there was no

showing that Edwards was in identifiable prison garb.

Edwards stated on the record that he was in prison clothing

and that jurors would view him as such. The judge agreed, discussing the

obtaining of "civilian clothes" from the Salvation Army. And the State did

not disagree with the characterization by Edwards that he was in prison

clothes that the jury would recognize as such. Indeed, on appeal the State

only contended that Edwards should have made continuing objections to each

day's trial in prison clothing, which is of course completely inconsistent

with the effect that being once viewed in prison clothing would have on the

presumption of innocence.

This Court should grant review because of the square conflict

between the opinion of the Arizona Court in this case, and that of this

Court in Estelle, supra.

3. The invocation of the overly harsh sanction of preclusion.

The Sixth Amendment affords every defendant compulsory pro-

cess to aid his defense. Parenthetically, the prosecution has no corres-

ponding constitutional right, although of course State procedures furnish

compulsory process for the prosecution. The Arizona discovery rules allow

a court to preclude calling of a witness, where the name of that witness

was not timely disclosed.

Arizona has consistently overruled defendants' objections to the

siteemtien calling witnesses whose names were not disclosed, unless the

defense has sought a postponement of the trial. E.g., State v. Ford, 108

Ariz. 404, 499 P.2d 699 (1972); State v. Chitwood, 73 Ariz. 161, 239 P.2d

353 (1951).

In this case, the prosecution did not seek a postponement;

indeed three days were available to check out the witness’ testimony after

the prosecuting lawyer and his investigator took a tape recorded statement.

° 16 -

But the Arizona Court applied the preclusion sarction more harshly in

derogation of the Sixth Amendment right of a defendant, than it does

against the State.

This Court has not addressed the balance between the Sixth

Amendment rights of a defendant to compulsory process, and the interest of

the State in a system of pre-trial disclosure, beyond holding that such a

system can be constitutional, Williams v. Florida, 399 U.S. 28 (1970), so

long as it is reciprocal. Waridus v. Oregon, 412 U.S. 470 (1973). Under

the application of the compulsory process clause explicated in Washington v.

Texas, 388 U.S. 14 (1967), it seems plain that unduly heavy handed imposi-

tion of sanctions, particularly those that completely prevent obtaining testi-

mony that the Supreme Court of Arizona itself concluded was probably

admissible, present a substantial question that this Court ought to address.

4. The Arizona Court utilizing the constitutional right of a

defendant to conduct his own defense, as justification for

comment upon his failure to take the stand.

This Court has recognized that a defendant has a Sixth Amend-

ment right to conduct his own defense. Faretta v. California, 422 U.S. 806

(1975). It of course takes no extended exegesis of cases from this Court

or elsewhere, to recall that a prosecutor cannot make statements during his

summation that are calculated to draw attention to the failure of a defendant

to testify, or that would have such effect. E.g., Griffin v. California, 380

U.S. 609 (1965).

The Arizona Court blithely concluded that Edwards had no evi-

dence from which he could conduct a final argument challenging the prose-

cutor's assertion that he had confessed. Such simply was not the case.

Arizona cannot be allowed to use such a state procedurc rule as "invited

error", where the record does not even support it, to override so well

established a Fifth Amendment Right.

e i7 «

The repeated, emphatic, reminder to the jury that Edwards had

not ascended the witness chair cannot be countenanced. If conducting

one's own defense and arguing the inferences from the evidence in a way

that a lawyer would do invites that "error" as the Arizona Court thought,

it is so as much when counsel makes arguments and draws inferences from

the evidence, as when the defendant does so. And it would unduly erode

the right of a defendant to represent himself. ‘The matter is quite likely to

reoccur, and squarely conflicts with the principles espoused by this Court

in Farreta and Griffin.

CONCLUSION

The affirmance of Edwards' conviction by the Arizona Court

squarely contravenes several cases of this Court. It exults form over sub-

stance in constitutional rights, by blinking the intentional frustration of

Edwards' claim to a lawyer, at the arrest stage, and callously penalizing his

decision to conduct his own defense, and doing so in a fully effective way.

Edwards’ trial can only be called "fair" by ignoring decisions of this Court

on the presumption of innocence, the right to call witnesses, and guar-

anting a speedy trial. For these reasons it is respectfully requested that

this Court grant Certiorari.

Michael J. Meehan

P. O. Box 2268

Tucson, Arizona 85702

MOLLOY, JONES, DONAHUE, TRACHTA,

CHILDERS & MALLAMO, P.C.

Of Counsel

- 18 -

»

72 ‘Ariz.

STATE of Arizona, Appellee,

he fife v.

Robert EDWARDS a/k/a Willie

Barefield, Appellant.

No. 3957.

Supreme Court of Arizona,

En Banc.

$. March 27, 1979.

’ Rehearing Denied May 1, 1979.

Defendant was convicted in the Superi-

or Court, Pima County, Cause No. 30683,

Ben C. Birdsall, J., of robbery, burglary and

- first-degree murder, and he appealed. The

Supreme Court, Hays, J., held that: (1)

defendant's statement that he wanted to ‘

talk to an attorney before making a deal

was sufficient as request for counsel and as

request to remain silent until counsel was

present; (2) finding that defendant's state-

ment was voluntarily and knowingly made

was not clearly and manifestly erroneous;

(8) rule governing waiver of rights to coun-

sel did not require that waiver of defend-

ant’s right to attorney at custodial interro-

gation be in writing or before the court; (4)

since speedy trial limits began again follow-

ing reindictment, and there was no viola-

tion prior to reindictment and no allegation

of violation subsequent to reindictment,

rule governing speedy trial was not violat-

ed; (5) where State did everything they

could to locate witnesses, and defendant did

not show that witnesses would have been

available without delay caused by State,

defendant was not unduly prejudiced as

result of trial delay; (6) defendant was not

prejudiced by preclusion of witness to such

an extent that he was denied fair trial; (7)

death of victim from heart attack which

occurred during robbery could form basis of

felony-murder conviction, and (8) where de-

fendant was sentenced pursuant to portion

_ Of statute which was held unconstitutional,

murder conviction was remanded for resen-

tencing.

Affirmed in part and remanded for re-

sentencing in part. ‘

Gordon, J., dissented and filed opinion.

APPENDIX A

594 PACIFIC REPORTER, 2¢ SERIES —

“1. Criminal Law 4>412.2(5)

Miranda was not intended to require

that every reference to an attorney, regard-

less of ‘its ambiguity, be construed as invo-

cation of Miranda rights; statement must

be examined in context made to determine

whether it was sufficiently clear to be fair-

ly interpreted as request for attorney or

demand that interrogation cease.

2. Criminal Law @>412.2(5)

Defendant's statement that he wanted

to talk to an attorney before making a deal

was sufficiently clear to be interpreted as

request for counsel and request to remain

silent until counsel was present.

3. Criminal Law @=412.2(1)

_ Although Miranda requires that ques-

tioning cease after defendant asks for an

. attorney, it does not preclude defendant

from changing his mind either on his own

or in response to inquiry by police so long as

decision is voluntarily made.

4. Criminal Law @=412.2(1)

Goal of Miranda is to insure that right

to an attorney and right to remain silent

are not reduced to meaningless phrases as

result of overzealous police practices.

5. Criminal Law @=412.2(5) Lees

Miranda does not create per se rule

precluding defendant from initiating fur-

ther discussions with police or from re-

sponding to subsequent inquiries from po-

lice after right to attorney had been in-

voked so long as waiver of such right is

otherwise voluntary. \

~

6. Crimina! Law ¢=531(3)

Confessions are prima facie involuntary

and burden is on State to show by prepon-

derance of evidence that confession was

freely and voluntarily made.

7. Criminal Law @=519(1)

In dete rmining voluntariness of confes-

sion, trial curt must look to totality of the

circumstances surrounding confession and

decide whether defendant's action is know-

-

‘ STATE v. EDWARDS

Ariz. 73

Cite as, Ariz., 504 P24 72

ing and tntelligant and whether his will has

been overborne.

& Criminal Law @1158(4)

Finding by trial court that confession is

voluntary will not be upset on appeal in

absence of clear and manifest error.

9. Criminal Law @414

In prosecution for robbery, burglary

and murder, finding that defendant's state-

ment to police was voluntarily and know-

ingly made was not clearly and manifestly

-_-

10. Criminal Law o412.2(5)

Rule of criminal procedure governing

waiver of rights to counsel was not intend-

ed to require judicial presence and written

waiver of counsel before custodial interro-

gation. 17 A.R.S. Rules of Criminal Prese-

dure, rule 6.1(c).

11. Criminal Law o412.2(5)

Rules of criminal procedure governing

waiver of rights to counsel did not require

that waiver of defendant’s right to attorney

during custodial interrogation be in writing

or before the court. 17 A.R.S. Rules of

Criminal Procedure, rule 6.1(c).

12. Criminal Law 577.8

Where there was stay in effect sine

period of appeal by State from granting of

motion for redetermination of probable

cause in prosecution for robbery, burglary

and murder, such stay necessarily halted all

proceedings in the trial court and such peri-

od was excluded time under speedy trial

rule. 17 A.R.S. Rules of aman Proce-

dure, rule 8.1 et seq.

13. Criminal Law @=577.12(1)

Where there was no showing that

State’s action in appealing grant of motion

for redetermination of probable cause was

frivolous or taken in bad faith with intent

to delay defendant's trial, limiting options

available to State would have been wholly

inappropriate, and thus State was not re-

quired to reindict defendant rather than

seeking appellate relief and period of delay

which resulted from appeal by State was

not imcluded in time period for purpose of

speedy trial rule. 17 A.R.S. Rules of Crimi-

nal Procedure, rule 8.1 et seq.

14. Criminal Law 577.14

In light of fact that speedy trial limits

_ began anew following reindictment, defend-

’ ant was not denied speedy trial in violation

of rule where no violation occurred prior to

reindictment on charges of robbery, burgla-

ry and murder, and there was no allegation

of subsequent speedy trial violation. 17

ARS. Rules of Criminal Procedure, rule 8.1

et seq. ne

15. Criminal Law ¢=577.10(1)

Inquiry into possible violation of consti-

tutional right to speedy trial focuses upon

four factors: length of delay; reasons for

delay; defendant's assertion of right, and

prejudice caused defendant; of such fac-

tors, the first is least important while the

‘last is most mypetae USEASeas.

Amend. 6.

16. Criminal Law $=577.15(4)

Although 14-month delay between in-

dictment and trial appeared to be excessive,

such delay was not prejudicial per se for

purposes of determining violation of consti-

tutional right to speedy trial. U.S.C.A.

Const. Amend. 6.

17. Criminal Law ¢?577.10(10)

In prosecution for robbery, burglary

and murder, defendant adequately and re-

peatedly asserted right to speedy trial for

purposes of determining whether 14-month

delay between indictment and trial consti-

tuted denial of constitutional right to

-speedy trial. U.S.C.A.Const. Amend. 6.

18. Criminal Law @577.10(6)

Where court and State did everything

they could have done to locate two alibi

witnesses for defense, and defendant did

not show that witnesses would have been

available without delay caused by State,

defendant was not unduly prejudiced as

result of delay in prosecution for aoe

burglary and murder.

19. Criminal Law @1144

Where record is silent, missing ‘fee

will be presumed to support conviction.

”

74° Ariz.

, a ae a

5% PACIFIC REPORTER, 2d SERIES

Na es

20. Criminal Law @=629 Ws; \

Where defendant was aware of witness

and intoxication defense long before trial,

but disclosed neither to the State, exclusion

of witness as sanction for nondisclosure was

not abuse of discretion. 17 A.R.S. Rules of

Criminal Procedure, rule 15.7, ~ |

21. Criminal Law @=1166(1) ”

> Testimony that witness saw defendant

intoxicated some seven hours before crime,

although probably admissible, was not so

dispositive that its absence denied defend.

ant fair trial; thus, defendant was not prej-

udiced by preclusion of witness to such ex-

tent that he was denied a fair trial, 17

A.R.S. Rules of Criminal Procedure, rule

|S Ae ‘ Wisteria they

22. Criminal Law e726

In closing argument, defendant's oral

and written statements before the jury as-

serting that he had not confessed were im-

proper as they were wholly unsupported by

the evidence; thus, any error in prosecu-

tor’s statements made in response to de-

fendant’s argument was error invited by

defendant, and defendant could not raise

error which he invited hoping to benefit

thereby. ne

23. Homicide e=§

Death of victim from heart attack

which occurred during robbery could form

basis of felony-murder conviction, notwith-

standing that such death was uninte

and accidental. neha

24. Criminal Law @= 1209 a Me

Conviction and sentence for robbery,

burglary and felony-murder on basis of

- death of victim from heart attack which

_ Occurred during robbery did not violate

double punishment statute. A.R.S. § 13-

t » A

‘

1641 (Repealed). iit

25. Homicide @»236(1)

Evidence in prosecution for felony-

murder, including testimony of pathologist

that, in his expert opinion, death of vietim

resulted from heart attack induced by anxi-

ety resulting from being robbed at gun-

point, was sufficient to Support causation

element. -

26. Criminal Law e=1188 |

Where defendant was sentenced pursu-

ant to portions of statute which was held

unconstitutional, murder conviction was re.

manded for resentencing. A.R.S. § 138-454,

Laws 1973, ch. 188.

Bruce E. Babbitt, former Atty. Gen., Rob-

“ert K. Corbin, Atty. Gen., by William J.

Schafer, ITI, and Crane McClennen, Asst.

Attys. Gen., Phoenix, attorneys for appel-

nn

Molloy, Jones, Donahue, Trachta & Child-

ers by Michael J, Meehan, Tucson, attorneys

for appellant. .

HAYS, Justice,

This is an appeal by Robert Edwards

from his convictions of robbery, burglary,

and first degree murder, and from his sen-

tence of death for the murder conviction.

We have jurisdiction pursuant to article 6,

§ 5 of the Arizona Constitution and A.R.S.

§ 13-4031. We affirm the convictions and

sentences for robbery and burglary, and the

murder conviction, but remand the murder

conviction for resentencing.

We are presented with nine issues on

appeal: snot .

1, Whether Edwards’ confession was ad-

' missible;

2 Whether, in deference to Edwards’

. Fight to a speedy trial, the state must

forego its right to file a special action

when a speedier alternative is availa-

ble; Pa

8. Whether Edwards’ right to a speedy

trial was violated; \

4 Whether Edwards's trial in prison

garb, over his objection, violated his

right to due process; ;

5. Whether the preclusion of a defense

witness was an abuse of discretion;

6 Whether the prosecutor's statements

in his closing argument constituted

an liapermissible comment on Ed-

ward’ failure to take the stand;

7. Whether an unintended or accidental

death may be the basis for a felony

murder conviction; ‘

eo ieee * : —_

+" eB ddegn io. 2's eed 2i

a@ «+

ee ee a 0 ert oe oben .

2 ome a :

‘mame ** ‘

“OY STATE v. EDWARDS

ri \

-

Ariz. 75

Cite as, Ariz, 504 P24 72

& Whether A.R.S. § 13-1641 (now re-

numbered as § 13-116) precludes con-

viction and punishment for robbery

and burglary in addition to first de-

gree murder when the latter is a felo-

ny murder; and r

9. Whether there was sufficient evi-

dence of causation in the record to

Support the felony murder conviction.

In October, 1974, a bar in Tucson was

robbed at gunpoint. During the robbery

the proprictor suffered a fatal heart attack,

After obtaining some money and valuables

the robbers fled. The police investigated

the crime but soon exhausted all leads. In

January, 1976, they obtained information

that led to the arrest of Edwards and sever-

al co-conspirators. Edwards was subse-

quently convicted of robbery, burglary, and

' first degree murder, “4 +

., CONFESSION

Edwards was arrested at his home at 4:00

P.M. He was not read the Miranda! warn-

ings at that time nor did he make any

statements, but was taken to the police

department where he was read his rights.

He indicated he understood them and that

he would submit to questioning. After

again having his rights explained to him, he

was interrogated by a detective who told

him that a co-conspirator had implicated

him in the robbery of a Tucson bar, Ed. .

wards denied involvement and gave a taped

alibi statement, at the beginning of which

he was again read his rights. After the

statement, he asked the detective if he

could make a deal. The detective replied

that he wanted a statement but that he

could make no deals, Consequently, Ed-

wards asked to talk to the county attorney

about making a deal, which he was allowed

to do. The negotiations were unsuccessful,

Edwards then reapproached the detective

about a deal. The detective repeated his

earlier statement that he could make no

deals, to which Edwards replied, “I want an

attorney before making a deal.” He did

Rot indicate, however, nor did the detective

interpret his statement to mean that he

~~

ve‘

wanted an attorney before further Interro-

gation or that he wished to remain silent

thereafter. The detective, nevertheless,

ceased questioning immediately after Ed-

wards’ statement at about 6:30 P.M,

* Thereafter, Edwards was taken to the coun-

ty jail. ; yew,

At 9:15 the next morning two other de-

tectives arrived at the jail and asked to see

Edwards, Although they were from the

~ Same section as the detective who had ques-

tioned Edwards the day before and knew

that he had been questioned, they did not

know that he had made the statement

about an attorney. When the detention

officer told Edwards that the detectives

were there to see him, he told the officer

that he did not wish to Speak to anyone.

The officer told him that he had to. Ed-

wards was thereupon taken to see the de-

tectives. They identified themselves and

said they wanted to talk to him. At that

point they explained to him that he had the

right to remain silent-and the right to an

attorney and the other Mirands rights. Ed-

wards said that he was willing to talk to

them but that he first wanted to hear the

taped statement of his co-conspirator that

the detective had told him about the day

before. After a portion of the tape was

played, he told the detectives that he would

make a statement but that he did not want

it recory ad because it could be used against

him in court. The detectives thoroughly

explained that whether or not the state-

ment was recorded did not matter because

an oral statement could also be used against

him in court. Edwards replied “I'll tell you

anything you want to know, but I don't

want it on tape.” Edwards then gave a

. Statement indicating his involvement in the

robbery. The interrogation concluded at

10:30 A.M. Prior to trial, Edwards moved

to suppress the confession and a hearing

was held. The court found that the state-

ment was voluntarily given but that the

detectives violated Miranda when they re-

approached Edwards after his statement

about an attorney. However, the next day

the judge reversed his ruling based on State

1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)

~ ee -« , - ~*

76 Ariz, 5% PACIFIC

¥. Travis, 26 Ariz. App, A, 545 P.2d 996

(1976), and found the confession to be ad.

miasible substantively,

Edwards claims On appeal that he exer.

cised both his right to an attorns and

right to remain silent, that ne did hot subse-

ly waived his rights, Edwards

before speaking or that he does

~“

*.

en

indicates

any manner” that he wishes an attorney

is language in

Miranda and argues that his statement was

both his right to an attor.

ney and his right to remain silent.

would submit toa breathalyzer test and

wt, BY > 6,

REPORTER, 24 SERIES

his involvement. In ruling that his confes.

sion was admissible, the court reasoned that

talk to an attorney before answering ques.

or preferred that questioning cease,

Id. 26 Ariz.App. at 29, 545 Pod at 99],

f1) Notwithstanding the “in any man.

ner” language of Miranda, supra, we are

interrogation cease. There is much authori-

ty in support of this view. See

ed States vy, Rodriguez-Gas

482, 484 (9th Cir.), cert, denied, 436 U.S.

544 Pod 654, 657 (1976);

State y, Garrison, 16 Or.App. 588, 519 P24

(2) Applying this reasoning in an evaly.

ation of Edwards’ statement, it appears at

first blush that the state's argument is cor-

rect, i @., that Edwards was Saying that he

ired an attorney only if » deal was dis.

To accept the State's position in this case

wanted an at.

torney before making a deal, His part of

a °

ed Me Te SMT

|

a %

STATE v. EDWARDS

Aria, 77

ee Cite as, Arte, 894 P2672 x

the deal would have been his confession. from further interrogation, regardless of

Therefore, to allow him to make a confes-

sion without counsel would be to deny him

his right to counsel for the very purpose,

albeit limited, for which it was invoked.

Likewise, it would be just as illogical to

hold that his statement was enough (o.in-

voke his right to remain silent only if ques-

tioned about a deal. We hold therefore,

looking at Edwards’ statement in the con-

text made, that although it was equivocal,

its meaning was sufficiently clear and

therefore it must be interpreted as a re-

quest for counsel and as a request to remain

silent until counsel was present.

We must now determine whether, after

invoking his right to counsel and right to

remain silent, Edwards waived them. Our

discussion at this point is twofold: first,

iranda creates a per se rule

against waiver of the right to an attorney

or the right to remain silent after being

invoked; and whether the waiver, if consti-

tutionally permissible, was voluntary.

Per Se Rule Regarding Right to Attorney

(3-5) Edwards argues that Miranda cre-

ates a per se rule that once a defendant

invokes his right to counsel he may not then

be questioned again by police until an attor-

ney is present. We do not agree. Al-

though Miranda does require that question.

ing cease after a defendant asks for an

attorney, we do not believe it precludes the

defendant from changing his mind either on

his own or in response to an inquiry by

Police so long as the decision is voluntarily

made. We agree with the Ninth Cireuit

decision in United States vy.

Gastelum, 569 F 2d 482 (9th Cir.), cert. de-

nied, 436 U.S. 919, 98 S.Ct. 2266, 56 L.Ed.2d

, 760 (1978), that per se rules often cause a

court to lose touch with the purpose behind

the rules. The goal of Miranda is to insury

that the right to an attorney and the right

to remain silent are not reduce! to mean-

ingles phrases as the result of overzealous

police practices. 384 U.S. at 444, 86 S.Ct. at

1612, 16 L.Ed.2d at 706. However, “a blan-

ket prohibition against the taking of volun-

tary statements or a permanent immunity

+ Page

stacles to legitimate police investigative ac-

tivity, and deprive suspects of an opportuni-

ty to make informed and intelligent assess-

ments of their interests.” (Emphasis add-

ed.) Michigan vy. Mosley, 423 U.S. 96, 102,

96 S.Ct. 321, 326, 46 L.Bd.2d 313, 320 (1975).

Reading Miranda to create such a per se

rule would preclude a defendant, upon in-

telligent reflection, from voluntarily and

knowingly acting as he thinks best. It

would work to “imprison a man in his privi-

hold, as did the Ninth Cireuit in Rodriguer-

Gastelum, supra, that Miranda does not cre-

Preciuding a defendant

from initiating further discussions with po-

lice or from responding to subsequent in-

quiries from police after the right to an

attorney has been invoked so long as the

waiver is otherwise

voluntary.

Per Se Rule Regarding Right to Remain

Silent

Edwards also claims that Miranda creates

& per se rule against questioning by police

after the defendant has invoked his right to

remain silent. We previously rejected this

assertion in State v. Hatton, 116 Ariz. 142,

568 P.2d 1040 (1977), where the defendant,

having invoked his right to remain silent,

was twice reapproached by the police and

interrogated. Citing Michigan v.

that Miranda

““ereate a per se Proscription of indefinite

duration upon any further questioning by

any police officer on any subject,’” we held

that the questioning of the defendant by

police was permissible since the defendant's

right to cut off questioning was seru

ly honored. 116 Ariz. at 146, 568 iat

1044. We find Hatton controlling. Simwa

asin Hatton, Edwards was reminded of his }

Miranda rights and was asked by the detec.

tives if he would voluntarily make a state.

ment, we conclude that his right to cut off

Questioning was scrupulously honored.

RS

78 Ariz.

.Voluntariness of Waiver ; 4:

' (6-8) Finally, Edwards claims that his

confession was involuntary since it was not

knowingly made. In Arizona, confessions

are prima facie involuntary and the burden

is on the state to show by a preponderance

of the evidence that the confession was

freely and voluntarily made. State v. Hall,

120 Ariz. 476, 586 P.2d 1288 (1978). In

determining the voluntariness of a confes-

sion, the trial court must look to the totality

of the circumstances surrounding the con-

fession and decide whether the defendant's

action is knowing and intelligent and

whether his will has been overborne.

Schneckloth v. Bustamonte, 412 U.S. 218,

. 226, 93 S.Ct.-2041, 2047, 36 L.Ed.2d 854, 862

- (1978); State v. Knapp, 114 Ariz. 531, 562

P.2d 704 (1977), cert. denied, 435 U.S. 908,

98 S.Ct. 1458, 55 L.Ed.2d 500 (1978). Once

the court finds, as it did in this case, that

the confession is voluntary, the finding will

‘pot be upset on appeal absent clear and

manifest error. State v. Edwards, 111 Ariz.

$57, 361, 529 P.2d 1174, 1178 (1974). We

- find no such clear and manifest error.

_. (9) Edwards claims that his comment

“1'll tell you anything you want to know,

but I don’t want it on tape” reveals his

misunderstanding of the use of the confes-

sion he gave and that therefore it was not

knowingly given. The state argues that

the admissibility of an oral statement was

thoroughly explained and that he refused to

have it recorded for reasons of his own, i. e.,

because of the impression he received after

just having listened to his co-conspirator's

taped confession. In any case, recognizing

that the trial court found that Edwards’.

3. {7 A.RS. Rules of Criminal Procedure, rule

6.1, provides in relevant part:

* @ Right to be Represented by Counsel. A

+ defendant shall be entitled to be represented by

counsel in any criminal proceeding, except in

» those petty offenses such as traffic violations

where there is no prospect of imprisonment or

" confinement after a judgment of guilty. The

‘ right to be represented she'll include the right to

consult in private with an attorney, or his

agent, as soon as feasible after a defendant is

taken into custody, at reasonable times there-

after, and sufficiently in advance of a proceed-

ing to allow adequate preparation therefor.

594 PACIFIC REPORTER, 24 SERIES _

o

” .

statement was voluntarily and knowingly

made, and applying the rules of law set out

above, we cannot say that the court's find-

ing was clearly and manifestly erroneous.

In conclusion, we find that Edwards did

invoke his right to an attorney and his right

to remain silent even though his statement

was not altogether clear. We also find,

however, that the question whether he

waived them is not amenable to a per se

rule and thus is left to the trial court whose

decision must be guided by the rules for

determining voluntariness. The trial

court's finding that the waiver and confes-

sion were voluntarily and knowingly made

is upheld,

Written Waiver Requirement

Edwards claims that even if he did waive

his Miranda rights, 17 A.R.S. Rules of Crim-

inal Procedure, rule 6.1(c), indicates that a

waiver of the right to counsel is ineffective

unless made before a judge and in writing.

We do not agree.

{10,11} Although rule 6.1 can be read as

Edwards reads it,’ it was not intended to

require judicial presence and written waiv-

er of counsel before custodial interrogation

nor have we ever required such in order for

the defendant to waive his right to an at-

torney during custodial interrogation. See,

e. g., State v. Hall, 120 Ariz. 476, 586 P.2d

1288 (1978); State Ferguson, 119 Ariz. 55,

579 P.2d 559 (1978); “State v. Arnett, 119

Ariz. 38, 579 P.2d 542 (1978); State v. Ra-

mirez, 116 Ariz. 259, 569 P.2d 201 (1977);

State v. Hatton, 116 Ariz. 142, 568 P.2d 1040

(1977); State v. Knapp, 114 Ariz. 531, 562

P.2d 704 (1977), cert. denied, 435 U.S. 908,

c. Waiver of Rights to Counsel. A defend:

ant may waive his rights to counsel under (a)

and (b), in writing, after the court has as-

certaine:’ that he knowingly, intelligently and

voluntar ly desires to forego them. When a

defendart waives his rights to counsel, the

court m y appoint an attorney to advise him

during ny stage of the proceedings. Such

advisory counsel shall be given notice of all

matters of which the defendant is notified.

ee

* °s" STATE v. EDWARDS

‘

‘*

om. 1

Cte as, Ariz., 594 P.2d 72 >

98 S.Ct. 1458, 55 L.Ed.2d 500 (1978); State

v. Jenkins, 111 Ariz. 18, 522 P.2d 1090

(1974). We therefore hold that rule 6.1(c)

does not require that a waiver of a defend-

ant’s right to an attorney at custodial inter-

rogation be in writing or before the court.

SPEEDY TRIAL

Edwards raises two distinct arguments

regarding his right to a speedy trial: first,

that the state is required by 17 A.R.S. Rules

of Criminal Procedure, rule 8, to forego use

of a special action when another procedural

option is available whether or not the trial

proceedings have been stayed; and second,

that the delay with its allegedly resulting

prejudice denied him his sixth amendment

rights.

e s. (SSB. The

Rule 8 Violation err wmiv tsa

Edwards was arraigned on January 23.

On March 5, Edwards moved for a redeter-

mination of probable cause. The court

granted the motion on March 22 finding

that the state had failed to reveal all excul-

patory information in its possession to the

grand jury, but also finding that the state

had not acted in bad faith. At that point,

the state could have reindicted Edwards or

. it could have challenged the trial court's

ruling by special action. It chose the lutter

alternative by filing a motion to stay and a

special action. The court of appeals grant-

ed the stay but denied relief and later de-

nied a motion for rehearing. The state

then petitioned this court for review which

was denied on July 20. On July 30, Ed-

wards was reindicted following a determi-

mation by the grand jury that probable

cause existed.

‘Edwards argues that the state should

simply have reindicted him pursuant to the

trial court's order rather than seeking ap-

pellate relief and that since it chose the

more time-consuming procedure, the result-

ing period of delay (about four months)

should be included in the rule 8 speedy trial

time periods time periods. We do not agree

for two reasons.

(12-14) First, ave was a stay in effect i

during the period of the appeal that neces-

sarily halted all proceedings in the trial

court. Such a period is excluded time un-

der rule 8. State v. Steele, 23 Ariz.App. 73,

76, 530 P.2d°919, 922 (1975). Second, to

require the state to employ the less time-

consuming procedure when another is au-

thorized by law would deprive the state of a

legitimate remedy. Where, as here, there is

no showing that the state's action was friv-

olous or taken in bad faith with intent to

delay the defendant's trial, we think a rule

limiting the options available to the state is

wholly inappropriate.. Computing the time

involved while excluding the time taken by

the appeal, the defendant had not, as of the

date of his reindictment, been denied a

speedy trial in violation of rule 8. Finding

that no violation had occurred to that point,

and noting that the speedy-trial limits be-

gin again following reindictment, State v.

Soto, 117 Ariz. 345, 348, 572 P.2d 1183, 1186

(1977), and since Edwards alleges no subse-

quent speedy-trial violation unless the earli-

er period is included, we find that rule 8 |

was not violated. hal

Sixth Amendment Speedy-Trial Violation

(15) Edwards alleges that he was denied

his constitutional right to a speedy trial by

his lengthy incarceration while awaiting tri-

al. He was arrested on January 19, 1976

and finally went to trial on March 17, 1977,

a delay of 14 months. In State v. Soto, 117

Ariz. 345, 572 P.2d 1183 (1977), we held that

a delay of nine months was sufficient to

trigger further inquiry into the trial delay.

That inquiry focuses on four factors set out

by the Supreme Court in Barker v. Wingo,

407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed2d 101

(1972):

1. The length of the delay.

2 The reasons for the delay.

8. The defendant's assertion of his right.

4. The prejudice caused the defendant.

Of these factors, the first is least important

while the last is most important State v.

Soto, supra.

80 Ariz.

Delay “, Te

{16} A 14-month delay seems to be ex-

cessive, but without looking into the rea-

sons for the delay, we cannot conclude that

the delay was prejudicial per se. ‘

Reason for Delay es

Only four months of the 14-month delay

was caused by the state. Edwards claims

that the state should be chastised for using

four months to appeal sn order when it

could have simply reindicted as it ultimate- °

ly was réquired to do. He cites United

States v. Perry, 353 F.Supp. 1235, 1237

(D.D.C.1973), as authority for his position.

There, the court did criticize the prosecution

for delaying trial, but because it had taken

fourteen months for appeals which could

have been completed in four (as they were

here), not because the state had chosen to

appeal. On the other hand, in United

States v. Osuna-Sanchez, 446 F.2d 566 (9th

Edwards attempts to distinguish Osuna-

Sanchez, supra, and similar cases, ¢. g., Peo-

ple v. Stewart, 61 Mich.App. 167, 232

N.W.2d 347 (1975), that approve the use of

interlocutory appeals by the state by point-

ing out that these cases involve appeals

from trial court orders suppressing prosecu-

tor’s evidence and were therefore absolutely

necessary to the prosecution's cases. We

are not inclined to accept this distinction

nor hold that the state's right to challenge

an adverse trial court ruling by special ac-

tion prior to a criminal trial is limited to

_ those situations in which it is absolutely

necessary, at least in the absence of any

evidence in the record to show that the

appeal was frivolous or taken in bad faith

with the intent to delay the trial.

Defendant's Assertion of Right

{17} Although the state argues to the

contrary, we find after examining the rec-

594 PACIFIC REPORTER, 2d SERIES

ord that Edwards did adequately and re-

peatedly assert his right to a speedy trial.

Prejudice to Defendant

[18] Edwards claims that he was preju-

diced by the delay because he was not able

to locate two alibi witnesses essential to his

defense. We do not believe the record sup-

ports Edwards’ claim of prejudice for the

following reasons. Edwards made no offer

of proof to the court of the alleged testimo-

ny of the alibi witnesses had they been

located. Nor did he show that the witness-

es would have been available if the state

had not delayed the trial for four months,

He called one alibi witness in whose sole

presence he claimed he was during the rob-

bery. He was granted numerous continu-

ances in order to locate the witnesses and

the court issued several requests for attend-

ance of witnesses to one state in which it

was thought the witnesses were residing.

The state had never interviewed the wit-

nesses nor did it know where they lived.

Although we recognize that these wit-

nesses may have aided Edwards at trial, we

cannot say that their absence prejudiced

him to such an extent that he was denied a

fair triai. He is, after all, entitled to a fair

trial, not a perfect one. Bruton v. United

States, 391 U.S. 123, 135, 88 S.Ct. 1620,

1627, 20 L.Ed.2d 476, 484 (1968). Since the

court and the state did everything they

could have done to locate the witnesses and

since Edwards did not show that the wit-

nesses would have been available without

the delay caused by the state, we find that

Edwards was not unduly prejudiced as a

result of the delay. See State v. Watson,

114 Ariz. 1, 6, 559 P.2d 121, 126 (1976), cert.

denied, 430 U.S. 986, 97 S.Ct. 1687, 52

L.Ed.2d 382 (1977); Sigard v. State, 537

S.W.2d 736, 739 (Tex.Cr.App.1976).

Edwards also alleges other bases for prej-

udice. We have reviewed these claims and

find them equally without merit. There-

fore, havixg considered all the factors re-

quired by Barker v. Wingo, supra, we con-

clude that Edwards’ constitutional right to

& speedy trial was not violated,

—

STATE v. EDWARDS

. Aria. 81

Cite as, Ariz, 594 P.2d 72

PRISON GARB

[19] Edwards claims he was denied the

due process right to a presumption of inno-

cence by being tried in prison garb, citing

Estelle v. Williams, 425 U.S. 501, 96 S.Ct.

1691, 48 L.Ed.2d 126 (1976). In Estelle, the

Supreme Court held that an accused may

not be compelled against his will to go to

trial in identifiable prison garb. Edwards’

reliance on Estelle is misplaced. Estelle

deals with the case in which the defendant

was tried in identifiable prison garb. There

is no indication in the record that Edwards’

prison clothes were identifiable as such. No

effort was made by defendant to make an

offer of proof as to the identifiable nature

of his clothes. It is well-settled law in

Arizona that where the record is silent, the

missing facts will be presumed to support

the conviction. E. g., State v. Caldwell, 117

Ariz. 464, 468, 573 P.2d 864, 868 (1977);

State v. Williams, 113 Ariz. 442, 444, 556

P.2d 317, 319 (1976); State v. Bojorquez,

111 Ariz. 549, 553, 535 P.2d 6, 10 (1975).

PRECLUSION OF DEFENSE WITNESS

(20} During the trial, Edwards attempt-

ed to call a witness that would have testi-

fied that he was intoxicated at 6:00 P. M.,

the night before the robbery. Even though

Edwards was aware of both the witness and

the intoxication defense long before trial,

neither had been disclosed to the state.

The state objected not only because Ed-

wards had known of the witness and of the

new defense before trial and had not dis-

closed them, but also because it believed

that testimony of intoxication at 6:00 P. M.

was not relevant to the defendant's partici-

pation in a robbery at 1:00 A. M. the next

morning, seven hours later. The court ex-

eluded the witness as a sanction for Ed-

wards’ nondisclosure. Edwards argues that

exclusion of the witness was an abuse of

discretion by the trial court. We disagree.

(21} We have repeatedly held that the

imposition of a sanction pursuant to 17

ARS. Rules of Criminal Procedure, rule

15.7, is within the sound discretion of the

trial court, and absent a showing of preju-

"dice this court will not find an abuse of

discretion. State v. Rien, 116 Ariz. 259,

268, 569 P.2d 201, 210 (1977); State v.

Clark, 112 Ariz. 493, 495, 543 P.2d 1122,

1124 (1975).

that the defendant has been denied a fair

trial. See State v. Dorow, 116 Ariz. 294,

295, 569 P.2d 236, 237 (1977). .

We do not believe that Edwards was

prejudiced by the preclusion of the witness

to such an extent that he was denied a fair

trial. The testimony that he saw Edwards

intoxicated some seven hours before the

crime, although probably admissible, was

not so dispositive that its sheenes denied

Edwards a fair trial.

CLOSING ARGUM ENT

[22] As the prosecutor began his closing

argument he wrote on a chalk board, “De-

fendant confessed.” At the beginning of

Edwards’ closing argument, Edwards, rep-

resenting himself, wrote on the chalk board,

“Defendant did not confess.” He also told

the jury during his closing argument that

he did not confess to the detectives. In his

rebuttal, the prosecutor made the following

statements which Edwards characterizes as

impermissible comments on his failure to

take the stand but which the state charac-

terizes as a justifiable response to Edwards’

statements which were unsupported by the

evidence before the jury:

“The evidence, you will recall, is what

the witnesses say from the witness stand

here under oath. And there is an impor-

tant thing about witnesses and what they

testify to. They are subject to cross-ex-

* amination. That is, you can ask the wit-

ness, “Well, how do you remember that,

Mr. Witness? How do you remember

this, Mr. Witness? Isn't such and such

true, Mr. Witness?”

“The witness answers you back. That's

testimony. That's evidence.

What evidence is there that he did not

confess? Did any witness come in here

and say from the witness stand under

wath that there was no confession, there

was no confession and the police are ly-

ing, there was no confession? That inci-

dent never occurred.

The prejudice must be such ©

82 Ariz. é 594 PACIFIC REPORTER, 2d SERIES

No, ladies and gentlemen, nobody testi-

, fied to that. No witnesses were called

that testified about that confession not

being made. No witnesses whatsoever,

The most conclusive statement is his

own statement. He never said he didn’t

confess other than writing it on the easel,

He told you he wasn’t involved in the

crime, he wasn't guilty. Here he told you

that like I'm telling you, like I’m talking

to you, not under oath.’ ”

In determining whether these statements

were improper, we must obviously examine

them in the context made. See State vy.

Ramirez, 116 Ariz, 259, 263, 569 P.2d 201,

205 (1977). The state had introduced sub-

, stantial evidence that Edwards had confess-

ed, including the content of his confession.

Edwards chose not to testify at trial. He

had introduced no evidence whatsoever that

. he had not confessed, Before the closing

arguments he was warned by the judge not

., fo make statements that were unsupported

by the evidence before the jury. Neverthe-

; less, he argued that he had not confessed

and wrote “Defendant did not confess” on

the chalk board. . ;

since they were wholly unsupported by the

evidence. State y, Dutton, 106 Ariz. 463,

raise error that he invited hoping to benefit

thereby. State y. Purcell, 117 Ariz. 305,

- 308, 572 P.2d 439, 442 (1977); State v. Wil.

eynski, 111 Ariz. 533, 535, 534 P.2d 738, 740,

‘cert. denied, 423 U.S. 873, 96 S.Ct. 141, 46

L.Ed.2d 104 (1975). ?

FELONY MURDER CONVICTION

| [23] Edwards argues that the death of

the victim from a heart attack that oc-

curred during the robbery may not form

the basis of a felony murder conviction be-

cause it was unintended and accidental.

The cases are to the contrary, In State v.

Ferrari, 112 Ariz. 324, 328, 541 P.2d 921, 925

(1975), we noted that a murder that is com.

mitted in perpetration of a burglary or any

other specifically named felony is punisha-

ble as felony murder whether wilful and

premeditated or only accidental. See also

State v. Hitchcock, 87 Ariz. 277, 350 P.2d

681 (1960), cert. denied, 365 U.S. 609, 81

S.Ct. 823, 5 L.Ed.2d 821 (1961); People y,

Stamp, 2 Cal.App.3d 203, 82 Cal.Rptr. 598

(1969), cert. denied, 400 U.S. 819, 91 S.Ct. °

86, 27 L.Ed.2d 46 ( 1970); State vy, McKevier,

89 N.J.Super. 52, 213 A.2d 320 (1965).

‘* (24) Edwards also contends that a con-

viction and sentence for robbery, burglary,

and murder violate the double-punishment

statute, ARS. § 13-1641 (now § 13-116).

In State v. Miniefield, 110 Ariz. 599, 603,

522 P.2d 25, 29 (1974), we held that convic-

tions and sentences for both first degree

murder and arson (the underlying felony)

did not violate A.R.S. § 13-1641. Accord,

State v. Clayton, 109 Ariz. 587, 600, 514

P.2d 720, 733 (1973). We find these cases

controlling. ;

SUFFICIENCY OF THE EVIDENCE

(25) Edwards complains that there was

not sufficient evidence on which the jury

from a heart attack induced by the anxiety

resulting from being robbed at gunpoint.

He reiterated his opinion on cross and again

on redirect. We think there was more than

adequate competent evidence before the

jury to support the causation element.

; SENTENCING

~ (26) Since Edwards was sentenced pur-

suant to the portions of A.R.S. § 13-454

which we held unconstitutional in State y.

Watson, 120 Ariz. 441, 586 P.2d 1253 (1978),

cert. denied, —— U.S. ——, 99 S.Ct 1254,

59 L.Ed.2d 478, this case is remanded for

resentencing.

We have reviewed the entire record for

fundamental! error and have examined all

arguments raised by Edwards and find that

—<— .

STATE v. EDWARDS Ariz. 83

Cite as, Ariz., 504 P2472

he was not denied a fair trial. The convic-

tions for robbery, burglary, and first degree

murder are affirmed along with the sen-

tences for robbery and burglary. The mur-

der conviction is remanded for resentencing

pursuant to State v. Watson, supra.

CAMERON, C. J., STRUCKMEYER,

V. C. J., and HOLOHAN, J., concur. ;

GORDON, Justice (dissenting):

The majority opinion states that Miranda

does not place a per se ban on police ques-

tioning of a suspect after he has invoked his

right to counsel. This is clearly the law in

Arizona. This Court has held that question-

ing a suspect after he has asserted his Mi-

randa rights is permissible, so long as the

suspect's right to cut off the questioning is

“scrupulously honored.” State v. McGinty,

120 Ariz. 162, 584 P.2d 1153 ( 1978); State vy.

Hatton, 116 Ariz. 142, 568 P.2d 1040 (1977).

Similarly, the Ninth Circuit Court of Ap-

peals, in United States v. Rodriguez-Gaste-

lum, 569 F.2d 482 (9th Cir. 1978) cert. de-

nied, 436 U.S. 919, 98 S.Ct. 2266, 56 L.Ed.2d

760 (1978), held that although questioning

must stop after a right to counsel is assert.

ed, it can later resume if the suspect makes

&@ waiver of the right. Such a waiver of a

previously asserted right must meet the

definition pronounced in Johnson v. Zerbst,

804 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461

(1938). That is to say, it must be an inten-

tional relinquishment or abandonment of a

known right or privilege. The Rodriguez-

Gastelum opinion specifically concluded

that a waiver could meet this test even if

the questioning was resumed at the instiga-

tion of the police. :

| The facts of this case, however, do not

meet the requirements of either the Ninth

Cireuit or Arizona case law. Edwards as-

serted that he wanted an attorney before

making a deal. At this point all question-

ing ceased. The next morning, the deten-

tion officer told Edwards that detectives

were there to see him. Edwards told the

officer that he did not wish to speak to

anyone. The officer told him that he had

5

Because Edwards was told that he had to

talk to the detectives, I disagree with the

majority's conclusion that his right to cut

off the questioning was scrupulously hon-

ored. For the same reason his subsequent

Statements were not an intentional relin-

quishment or abandonment of his. right to

counsel, even though the detectives once

again read him his Miranda rights. This is

evidenced by the fact that when asked at

the motion to suppress hearing why he had

not once again told these detectives that he

wanted an attorney, he responded: “I

didn’t think you had to keep asking for an

attorney over and over and over.” ,

Moreover, I cannot condone the tactics of

the investigating detectives, Despite the

Suspect’s prior assertion of his right to

counsel, detectives questioned him the fol-

lowing morning, knowing that an attorney

would not be appointed for him until the

afternoon. I find the language of State v.

Sauve, 112 Ariz. 576, 544 P2d 1091 (1976)

controlling on these facts,

“After the defendant's refusal to answer

questions, the officers ceased interroga-

tion, but their subsequent conduct and

statements were made to persuade the

defendant to reconsider his position. Any

response under such circumstances cannot

be considered ‘volunteered,’ and the state-

ments were not admissible.” 112 Ariz.

576, 579, 544 P.2d 1091, 1094. (Emphasis

added.) ;

Despite Arizona's rejection of a per se

rule regarding the right to remain silent, a

suspect's right to cut off questioning must

be scrupulously honored, and his statements

must be voluntarily made. Because he was

told that he had to talk to the detectives

and because the questioning took place

shortly before an attorney was to be ap-

pointed, I would find the defendant's state-

ments to be inadmissible.

mn -*

IN THE SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA, )

)

Appellee, ) No. 3957

)

vs. )

) ORDER REMANDING FOR

ROBERT EDWARDS aka ) RESENTENCING ON MURDER

WILLIE BAREFIELD, ) CONVICTION

) (MAN DATE )

Appellant. )

)

Appeal from the Superior Court of Pima County Number 30683

Honorable Ben C. Birdsall, Judge

Bruce E. Babbitt, Former Attorney General

Robert K. Corbin, The Attorney General .

by William J. Schafer, Assistant Attorney General

Crane McClennen, Assistant Attorney General

Attorneys for Appellee

Molloy, Jones, Donahue, Trachta & Childers

by Michael J. Meehan

Attorneys for Appellant

This cause having been heretofore submitted, and the Court having

duly considered same, and being now advised in the premises, files its

Opinion. It is accordingly ORDERED that the murder conviction of the

trial court entered in the above-entitled cause be remanded for

resentencing pursuant to State v. Watson, to comply with the opinion

of this Court, attached hereto.

DONE IN OPEN COURT this 27th day of March, 1979, .

STATE OF ARIZONA

SUPREME COURT

I, CLIFFORD H. WARD, Clerk of the Supreme Court of the State of

Arizona, hereby certify the above to be a full and true copy of the

APPENDIX B

be] fe

Supreme Court No. 3957

ORDER REMANDING FOR RESENTENCING

ON MURDER CONVICTION

Page Two

Order Remanding For Resentencing On Murder Conviction, made and entered

in the above entitled cause by said Court on the 27th day of March, 1979.

cc:

IN WITNESS WHEREOF, I hereunto set my

hand and affix the official seal of

said Court this 2nd day of May, 1979.

CLIFFORD H. WARD, Clerk /

Lua dipleins

Deputy Clerk

Hon. Robert K. Corbin, Attorney General; Stephen D. Neely, Pima

County Attorney; Hon. Ben C. Birdsall, Judge; Hon. Harry Gin, Pima

County Presiding Judge; Department of Corrections; Superintendent

of Arizona State Prison; Michael J. Meehan, Esq., Molloy, Jones,

Donahue, Trachta & Childers; Robert Edwards aka Willie Barefield;

Jim I. Martin, Court Administrator for Pima County.

norris w. wan . CSupreme Court © main, or wore

STATE OF ARIZONA

Phacuix

1

oer May 2, 1979

STATE OF ARIZONA, Supreme Court

No. 3957

Appellee,

vs. Pima County

No. 30683

_ ROBERT EDWARDS aka WILLIE BAREFIELD,

Appellant.

.

The following action was taken by the Supreme Court of the State of Arizona

on siege 1, 1979 in regard to the above-entitled cause:

“ORDERED: Motion for Rehearing = DENIED."

Justice Frank X. Gordon, Jr. voted to grant.

Copy of Order Remanding for Resentencing on Murder Conviction

enclosed herewith. ; ; .

N

s

.

CLIFF H. WARD. Clerk

Prt, he llen

: ote Ire Lap,

TO: Hon. Robert K. Corbin, Attorney General, 200 State em

Phoenix, Arizona 85007 Attn: Crane McClennen, Esq.

Michael J. Meehan, Esq., Molloy, Jones, Donahue, Trachta, Childers

and Mallamo, 33 North Stone Avenue, Tucson, Arizona 85701

Stephen D. Neely, Pima County Attorney, 111 West Congress Street,

Tucson, Arizona 85701 :

y REVIEWED :

Dorketed ures nae

, C/1/. 2g

rw

Ses, 008 | eG ee P3 *, > : hate 57.3/ 7 aan - —"s_ | : ts

MKS LAP ME RA te ae aie og as oir ee eee a

age te

‘APPENDIX C | fii CRM ene Yo”

FILED

I. ° o™ 2

an 10 Grane 927

er oe 1 ceil, Cle

INTHE SUPERIOR COURT OF THE STATE OF ARIZONA JANES N, GB..-e7T, Cher

G C f eputy

IN AND FOR THE COUNTY OF PIMA SEM patie

BEN C. BIRDSALL _ . NO. A-30683

JUDCE/COURT COMMISSIONER ao

DATE 20 June 1979

THE STATE OF ARIZONA, David Berkman

PLAINTIFF PLAINTIFF'S ATTORNEY

ROBERT EDWARDS, aka WILLIE BAREFIELD Michael Meehan

DEFENDANT

MINUTE ENTRY

RESENTENCING:

Defendant present in custody.

Bruce Johnson reporting.

This is the time that the Court has set for Resentencing,

the Resentencing is on Count One of the Indictment, MURDER IN THE FIRST

DEGREE,

All parties being granted leave to address the Court,

Mr. Meehan and Mr. Berkman do so.

The Defendant, Robert Edwards, was adjudged GUILTY of

the crime of MURDER IN THE FIRST DEGREE following a jury verdict. The

Court made Findings of Fact on June 15, 1977, and those Findings of Fact

are confi'med again at this time, except that the Court is now entitled

to consider any mitigating circumstances that appear in the entire record

in this case.

THE COURT DOES FIND that there are mitigating circumstances

and the mitigating circumstances are sufficiently substantial to call

for leniency, and the Defendant's Sentence should be reduced from death

to life imprisonment pursuant to the Statute for this offense. _

IT IS ORDERED that the Sentencing of June 21, 1977. is _

SET ASIDE as to the Sentence of death on the conviction in Count One,

JAMES N. CORBETT = crer

By G. McInroy

Deputy

APPENDIX D

MINUTE ENTRY

Page No. 2 Date 20 June 1979 Case No. A - 3 0 6 8 3

_---_- - +

. '

MURDER IN THE FIRST DEGREE, and the Defendant is Sentenced to LIFE

IMPRISONMENT on that Count. The Sentence is to commance as of January

19, 1976, which is the first date that the Defendant was incarcerated

on these charges. The Sentence is to also run concurrently with the

Defendant's other Sentences in this case.

The mitigating circumstances which the Court Finds, and

this is by special verdict of the Court, are: 1) that the Defendant

had not intended to kill the victim of the murder, and: 2) that the

death, although the Court is not setting aside the Findings that the

Defendant could reasonably have foreseen that his conduct in the crime

would cause or create a grave risk or cause death to another person,

the death was one that was very unusual and not expected, and: 3) the

offenses committed by the Defendant were committed with other persons,

The Court believes that a sentence of death in this case for this

Defendant would be disproportionate recognizing the disposition which

has been made of the other Defendants who were involved in the crime.

There is particularly one Defendant who testified and was given immunity

by the State, whose conduct in the commission of the offense was more

reprehensible than Mr. Edwards! ,

Thereupon the Defendant is advised of his right to appeal

this resentancing and appeal procedure. The Defendant Signs and receives

a copy of the Notice of Right to Appeal and Appeal Procedure form.

FILED IN COURT: Notice of Right to Appeal and Appeal

Procedure form. rE: Pe eh, a 4

anc Kn py

JUD CE

copies to:

TU AGMHiINLStYraror

Hon. Ben C. Birdsall

. raman

y, Jones, Donahue & Trachta - Meehan

“AdureProparton

Department of Corrections (1 certified)

a)

Computer

Arizona State Prison (1 certified) ;

Appeals Desk G. McInroy » Deputy Clerk.

Newspaper CViry

mer Apa ta

Docketed s — jc-—

ABBREVIATED RECORD REFERENCES

TRANSCRIPTS OF PRETRIAL MOTIONS

I M-= March 2, 1977

II M-= March 3, 1977

III M-=- March 4, 1977

IV M=- March 7, 1977

VM-= March 2, 1977

March ll, 1977

March 14, 1977

March 16, 1977

VI M = March 22, 1977

TRIAL TRANSCRIPT PROCEEDINGS (MISTRIAL)

I P = March 17, 1977

March 18, 1977

II P = March 21, 1977

III P = March 22, 1977

IV P = March 24, 1977

March 28, 1977

TRIAL TRANSCRIPT PROCEEDINGS ( SECOND TRIAL)

I Tr. - April 20, 1977

II Tr. = April 21, 1977

III Tr. - April 22, 1977

Iv Tr. - April 25, 1977

V Tr. - April 26, 1977

April 27, 1977

POST-TRIAL MOTIONS AND SENTENCING

May 16, 1977

May 23, 1977

May 26, 1977

June 2, 1977

June 8, 1977

June 10, 1977

June 15, 1977

June 21, 1977

TRIAL COURT PLEADINGS

R. (With index number to appellate record)

APPENDIX E