# Petition — Edwards v. Arizona > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40835006_2656%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 451 U.S. 477 ## Text % 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40835006_2656%3A01. Public record. Not legal advice.