Appendix — Edwards v. Arizona

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APPENDIX JUN 30 1980

| RODAK, JR., CLERK

In the Supreme Court of the United Strtes

OCTOBER TERM, 1979

No. 79-5269

ROBERT EDWARDS, PETITIONER

Vv.

THE STATE OF ARIZONA, RESPONDENT

ON WRIT OF CERTIORARI TO

THE ARIZONA SUPREME COURT

PETITION FOR A WRIT OF CERTIORARI

FILED AUGUST 28, 1979

CERTIORARI GRANTED MAY 19, 1980

eee

INDEX

Docket entries, Pima County, Arizona Superior

Court (No. A-30688) ..............00.0........

Motion to Suppress Statement, filed October 19,

pity oe TET Te I NOTE

Memorandum in Support of Motion to Suppress

Statement, filed October Od SP ius cual.

Opposition to Defendants’ Motion to Suppress, filed

scticshosia, tena Toe OEE eo

Motion for Reconsideration of Order Granting Mo-

tion to Suppress Confession, filed March 14, 1977

Arizona Supreme Court Opinion (No. 3957), filed

sicko Soap iguaal PERT Oe Oe Ne

Transcript of Proceedings— March 4, 1977, Pages

Transcript of Proceedings—March 7, 1977, Page 9

WY Noble co cira tye cic

Transcript of Proceedings— March 8, 11, 14, 16,

1977, Pages 37 through 41, 55, 64 and 65 .......

Transcript of Proceedings— March 21, 1977, Pages

co ES: Se aetna

Transcript of Proceedings— March 28, 1977, Pages

ssn gs ptt | Oat

Page

Transcript of Proceedings—April 21, 1977, Pages

61 through 84, and 90 through 134 .............

Testimony of Larry Bunting.................

Testimony of Victor Marmion................

Transcript of Proceedings—April 22, 1977, pages

Pe I BAG ha ie 00k 00 bks coerce

Testimony of Charles Milne .................

Transcript of Proceedings—April 25, 1977, Pages

Me BR RR eee eee

Testimony of Larry Bunting.................

Order of the Supreme Court of the United States

Granting Leave to Proceed in Forma Pauperis

and Granting Petition for Writ of Certiorari ....

100

115

118

140

146

156

[Caption omitted]

MINUTE ENTRY

(March 11, 1977)

UNDER ADVISEMENT RULING RE DEFT. ED-

WARDS’ MOTION TO SUPPRESS:

IT lS ORDERED the motion is granted.

THE COURT FINDS that Deft. Edwards’ statement

was voluntary except for the violation of Miranda. The

court is prohibiting the state from using the statement in

the presentation of its case but the state may use the

statements on cross-examination in the event Deft. Ed-

wards takes the stand and the state may use the statement

in rebuttal should it become otherwise material and proper

rebuttal.

THE COURT FINDS that the officers’ testimony is the

credible evidence on the motion, not Deft. Edwards’ tes-

timony.

THE COURT FINDS that the deal referred to in the

testimony, so far as Mr. Edward’s state of mind is con-

cerned, was that he would make a statement (presumably

a true statement) in exchange for some leniency or some-

thing of that nature.

THE COURT FINDS that under Miranda and under the

Sixth Amendment, there is at least an indication in some

way that Mr. Edwards intended to have an attorney and

intended not to make any statement until le was repre-

sented by counsel, the conversation betwee: the officers

and Mr. Edwards having been terminated 4y Mr. Ed-

wards saying, in effect, that he would wait untii he got his

attorney begore he made any deal.

The court cites the Arizona cases it has studied in this

regard: State v. Suave, State v. Edwards, State v. Ber-

ger.

[Caption omitted]

MINUTE ENTRY

(March 14, 1977)

RE STATE’S MOTION FOR RECONSIDERATION

OF ORDER GRANTING MOTION TO SUPPRESS

CONFESSION:

Mr. Lingeman files a written motion and counsel argue

the motion to the court.

IT IS ORDERED the motion to reconsider is granted.

The court states that it was not aware of State v. Travis

and it appearing that the case is exactly on point and is

controlling,

IT IS ORDERED the ruling on the motion to suppress

is changed and the Deft. Edwards’ motion to suppress

statements is denied as to all statements.

THE COURT FINDS the defendant’s statements to be

voluntary.

(CAPTION OMITTED)

No. A-30683

MOTION TO SUPPRESS STATEMENT

COMES NOW the defendant, ROBERT EDWARDS, by

and through his attorney, HIRSH, SHINER & POLIS,

P.C., and moves this Court to exclude the confession at-

tributed to this defendant on the following grounds:

(1) That said confession was not made by this defendant.

(2) That the confession was made involuntarily by rea-

son of threats and promises on the part of state agents.

Molloy v. Hogan, 878 U.S. 1 (1964).

(3) That the confession was taken in violation of

Miranda v. Arizona, 384 U.S. 436 (1966) insofar as it was

made at a time when defendant had no understanding of

his Fifth Amendment privilege against self incrimination.

These grounds will be more fully articulated in a fol-

lowing memorandum in support of this motion.

(CAPTION OMITTED)

No. A-30683)

MEMORANDUM IN SUPPORT OF

MOTION TO SUPPRESS STATEMENT

MEMORANDUM OF POINTS AND AUTHORITIES

On January 19, 1976 Defendant Edwards was arrested

at his residence by Detective Bunting and Sergeant

Bunting on charges of felony murder, armed robbery and

armed burglary in connection with an incident alleged to

have occurred on October 9, 1974. Later that day, Defend-

ant Edwards gave a recorded statement to Sergeant

Bunting denying any involvement in the occurrence in

question. A transcription of this statement is included in

the state’s disclosure material.

The next day, January 20, 1976, Detective Marmion con-

tacted the accused at the County Jail where the defendant

was in custody. This contact took place at one of the attor-

ney interview booths at approximately 9:15 A.M. During

that interview, Detective Marmion attributes the follow-

ing statement to Edwards:

“Barfield was at Soto’s residence approximately three

or four days before the actual incident. Reed and Soto

were talking about setting up the robbery. At that

time Barefield decided to go along with them. On the

night of the murder, October 9, 1974, at approxi-

mately 0030 hours Reed, Barefield, Soto and both

Williams’ arrived in the area of the La Conga. After

the customers left the bar at approximately 0100

hours Manny Soto walked up to the window of the bar

located on the southside and looked to see where the

victim and Nellie Esparza were. Soto, Albert Wil-

liams and Willie Williams acted as look-outs. As the

victim and Mrs. Esparza walked out the front door of

the bar they were approached by Barefield and Reed.

Reed was the only one carrying a gun. Both the vic-

tim and Mrs. Esparza were held at gun-point and

were eventually forced back into the bar. Once inside

Barefield stated he went to the victim’s but did not

take anything from her. Shortly thereafter Reed fired

two or three shots because the gun ‘had a hair trigger

on it’. Reed then took the victim back into the back

room where the safe was at. Barefield stated Soto had

told them where the safe was at because he had been

in there once before while he committed a burglary at

La Conga. Barefield denied hurting or knocking Mrs.

Esparza to the floor. Barefield then grabbed Mrs.

Esparza and took her into the back room where Reed

had the victim at gun-point. The victim was sitting on

a chair, he was bent over opening the safe. Reed

threatened to kill the victim if he did not get the

money out of the safe. Barefield also stated Reed was

jabbing him in the rib area and had also jabbed the

victim on the right neck area. Reed took the victim’s

watch, and ring off of his person. Barefield described

the victim’s ring as gold in color with a red ruby

stone. Reed also took a metal box (money) out of the

safe and two money bags. Barefield stated Reed kept

possession of all the stolen items except the ring

which he gave Barefield. The two suspects then ran

from the bar and while they were running they were

met by the other three suspects. The direction of

travel the suspects took according to Barefield was

consistent with what Reed had previously told me.”

This statement was supposedly made after Detective

Marmion played ten to twelve minutes of a recorded

statement of codefendant Soto seriously implicating ‘Ed-

wards in the robbery in question. After the recording was

played, Edwards allegedly agreed to make the aforemen-

tioned statement, but refused to have it recorded because

he knew it would be used against him in Court at a Later

time’. Defendant at this time allegedly had been advised of

his Miranda rights and affirmatively stated he understood

them.

DEFENDANT EDWARD’S CONFESSION WAS OBTAINED

IN VIOLATION OF MIRANDA V. ARIZONA

In leading case of Miranda v. Arizona, 384 U.S. 436, 86

S.Ct. 1602 (1966) holds that a statement elicited through

custodial interrogation is inadmissable at trial unless the

state can show that the defendant was advised of his

Miranda rights and validly waived them. Furthermore,

the court in Miranda specifically held that a “valid waiver

will not be presumed simply from the silence of the ac-

cused or simply from the fact that a confession was even-

tually obtained”. Miranda v. Arizona, supra, 384 U.S. at

475. Emphasizing the importance of the requirements

spelled out in its opinion, the court concluded that:

“The requirement of warnings and waiver of rights is

a fundamental with respect to the Fifth Amendment

privilege and not simply a preliminary ritual to

existing methods of interrogation.” Jd. at 384 U.S.

476.

Defendant here does not contest the fact that he was

advised of his rights after he was arrested. Instead, it is

defendants position that he did not validly waive his rights

and that, therefore, his statement was involuntarily made

and was elicited in violation of the dictates of Miranda v.

Arizona, supra. The invalidity of the waiver in this case is

manifested by the interrograting officers admission that

defendant Edwards would not agree to a tape recording of

the confession attributed to him because they could use it

against him if it were tape recorded.

This refusal is analogous to the refusal made by the de-

fendant in United States v. Frogier, 419 F. 2d 1161 (D.C.

Cir. 1969) which held that a defendant’s objection to note

taking by officers before confessing rendered invalid a

written waiver signed by the defendant. This holding was

predicated on the reasoning that Frozier’s ban on note

taking indicates an unintelligent waiver of his rights under

Miranda. In like fashion, defendant Edwards refusal to

give a taped statement indicates that any waiver of his

Miranda rights is undermined by the fact it was unintelli-

. gently made. Accord, State v. Jones, 37 Ohio State 2d. 21,

306 N.E. 2d 409 (1974).

(CAPTION OMITTED):

No. A-30683

SUPPLEMENTAL MEMORANDUM IN SUPPORT OF

MOTION TO SUPPRESS STATEMENTS

MEMORANDUM OF POINTS AND AUTHORITIES

DEFENDANT EDWARDS’ ORAL CONFESSION WAS

OBTAINED DURING AN INTERROGATION SESSION

CONDUCTED AFTER DEFENDANT EDWARDS HAD

INVOKED HIS PRIVILEGE AGAINST SELF-

INCRIMINATION AND ASKED FOR AN ATTORNEY.

THEREFORE, THIS CONFESSION WAS OBTAINED

INVOLUNTARILY AND IN VIOLATION OF DE-

FENDANT’S 5TH, 6TH, AND 14TH AMENDMENT

RIGHTS. MIRANDA v. ARIZONA, 384 U.S. 436, 86

S.Ct. 1602 (1966).

On January 19, 1976, Defendant Edwards was arrested

at his home by Detective Bunting and Sargeant Bunting

on charges of murder, armed robbery and armed burglary

in connection with an incident alleged to have occurred on

October 9, 1974. Later that afternoon, defendant Edwards

volunteered a recorded statement denying any involve-

ment in the occurrance at question. This recorded state-

ment, which is transcribed in the State’s disclosure, indi-

cates that Detective Bunting engaged into a searching in-

quiry into the particulars of defendant Edwards’ recorded

statement relative to an alibi.

After this statement was made the tape recorder was

turned off and questioning continued. According to Sgt.

Bunting, defendant stated that he wanted to make a deal

but after negotiations broke down, defendant stated that

he would get himself a lawyer and then make a deal.

During these negotiations, Detective Bunting indicated

to defendant Edwards that if he wanted to make a state-

ment, Detective Bunting would listen to it and then con-

sider whether a deal was to be made. In response to that,

Edwards stated, according to Detective Bunting, that he

was not going to make a statement, that he wanted a deal,

and when Detective Bunting refused to make an offer,

negotiations finally terminated.

It should be noted here that during the course of this

interrogation session, Detective Hallums also talked to

defendant Edwards, but again, defendant Edwards made

no statements. Finally, after the termination of negotia-

tions on January 19, 1976, defendant Edwards was trans-

ported to the County Jail.

The next day, January 20, 1976, Detective Victor

Marmion went to the jail to interrogate defendant Ed-

wards. During this interrogation session, Detective

Marmion confronted Edwards with a tape-recording made

by co-defendant Soto implicating defendant Edwards in

the crime at issue. Simultaneously, he advised defendant

Edwards of his Miranda rights and defendant Edwards

allegedly responded that he would make a statement but

that he did not want to have it recorded. According to De-

tective Marmion, defendant Edwards then proceeded to

make what amounts to an oral confession concerning his

involvement in the crime in question.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602

(1966), the United States Supreme Court outlined the pro-

cedure that police must follow once they have advised the

defendant of his Miranda rights.

“If the individual indicates in any manner at any time

prior to or during questioning that he wishes to re-

main silent, the interrogation must cease. At this

point, he has shown that he intends to exercise his

Fifth Amendment privilege; any statement taken

after the person invokes his privilege cannot be other

than the product of compulsion, subtle or otherwise.

Without the right to cut off questioning, the setting of

in-custody interrogation operates on the individual to

overcome free choice and producing a statement after

the privilege has been once invoked.” 384 U.S. at

473-74, 86 S.Ct. at 1627-28.

Following the Miranda decision, the United States Su-

preme Court in Michigan v, Moseley, ____ U.S. a

S.Ct. 321 (1975), reaffirmed the holding in Miranda and

Stated that the admissibility of a statement obtained after

the in-custody defendant had exercised his Miranda rights

depends upon whether his right to cut off questioning was

“scruplulously honored”. In Mosely the defendant, after

being advised of his rights, stated he did not want to an-

Swer any questions about some specific crimes under in-

vestigation. All questioning ceased. Later, the accused

was interrogated by another detective and again advised

of his Miranda rights. This interrogation related to a

homocide, a case indepedent of those about which the ac-

cused was questioned in the first interrogation session.

This time, the accused elected to answer questions. This

statement was held to be admissible because the second

interrogation session did not undercut the accused pre-

vious decision not to answer questions concerning par-

ticular offenses.

In State v. Sauve, 112 Ariz. 576, 544 P.2d 1091 (1976),

the Arizona Supreme Court distinguished Mosely in a case

where multiple interrogation sessions resulted in the

Police obtaining a confession from the accused. In Sauve,

supra, the defedant was arrested, given his Miranda

warning and subjected to interrogation. After defendant

was given his Miranda warning, he was asked whether he

wanted to talk about the alleged crime and responded

“no”. However, after one of the detectives pointed to a

box containing items taken in the burglary and stated that

he had a good case against the defendant, defendant al-

legedly orally admitted that his fingerprints could be

found on the stolen property. Under these circumstances,

the Arizona Supreme Court held that the officer’s actions

undercut the defendant’s previous decision to invoke his

Miranda rights and that, therefore, the statements were

not admissible. State v. Sauve, supra, at 579.

The facts of this case are even more compelling on the

issue of whether defendant’s statement was voluntered

and hence, admissible. Defendant Edwards at the first in-

terrogation session, agreed to have his alibi statement re-

corded. After this statement was made and recorded,

negotiations were undertaken to determine whether a

“deal” could be made. When negotiations broke down, de-

fendant Edwards refused to make a statement. Fur-

thermore, he stated that he would wait until he got an at-

torney until he made a deal, thereby implying that he re-

quested the services of an attorney before proceeding with

any further interrogation by the police. In the face of de-

fendant’s refusal to make a statement concerning any in-

volvement he had in the offense and his desire to speak

with an attorney, the interrogating officers decided to

transport him back to the jail. The next day, another de-

tective from the homocide division went to the jail to in-

terrogate defendant Edwards. First, he read him his

Miranda rights. Then he proceeded to play a tape record-

ing of a confession of a co-defendant implicating defendant

Edwards in the crime at issue. Immediately after the

playing of this tape, defendant Edwards allegedly orally

confessed to the crime at issue, although it is clear from

the State’s disclosure that he refused to have this state-

ment tape recorded and believed that this statement, if

indeed made, was not admissible against him.

‘ Under these circumstances, it is clear that this sub-

sequent interrogation session undercut defendant’s pre-

vious decision to invoke his Miranda rights under the 5th,

6th and 14th Amendments and, for that reason, the oral

confession atttributed to him must be held inadmissible at

his trial. State v. Sauve, supra.

(CAPTION OMITTED)

NO. A-30683

OPPOSITION TO DEFENDANTS’ MOTION TO SUPPRESS

COMES NOW the State of Arizona, by and through the

Pima County Attorney, STEPHEN D. NEELY, and his

Deputy, LARRY J. LINGEMAN , and respectfully op-

poses defendants’ motions to suppress for the reason that

they inaccurately and inadequately set forth the facts upon

which the motion can be made.

Respectfully submitted this 4th day of January, 1977.

(CAPTION OMITTED)

NO. A-30683

MOTION FOR RECONSIDERATION OF ORDER

GRANTING MOTION TO SUPPRESS CONFESSION

COMES NOW the State of Arizona, by and through the

Pima County Attorney, STEPHEN D. NEELY, and his

deputy, LARRY J. LINGEMAN , and moves this Court to

reconsider its decision granting the defendant’s motion to

suppress for the reason that the State’s attorney has found

a case which specifically deals with the problem before the

Court in this motion, State v. Travis, 26 Ariz. App. 24

(1976).

Respectfully submitted this 11th day of March, 1977,

(CAPTION OMITTED)

No. 3957

HAYS, Justice

This is an appeal by Robert Edwards from his convic-

tions of robbery, burglary, and first degree murder, and

from his sentence 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 conviec-

tions 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:

Whether Edwards’ confession was admissible;

Whether, in deference to Edwards’ right to a

speedy trial, the state must forego its right to file

a special action when a speedier alaternative is

available;

Whether Edwards’ right to a speedy trial was vio-

lated;

Whether Edwards’ trial in prison garb, over his

objection, violated his right to due process;

Whether the preclusion of a defense witness was

an abuse of discretion;

. Whether the prosecutor’s statements in his closing

argument constituted an impermissible comment

on Edwards’ failure to take the stand;

. Whether an unintended or accidental death may be

the basis for a felony murder conviction;

Whether A.R.S. §13-1641 (now renumbered as §

13-116) precludes conviction and punishment for

robbery and burglary in addition to first degree

murder when the latter is a felony murder; and

Whether there was sufficient evidence of causation

in the record to support the felony murder convic-

tion.

In October, 1974, a bar in Tucson was robbed at gun-

point. During the robbery the proprietor 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 several

co-conspirators. Edwards was subsequently convicted of

robbery, burglary, and first degree murder.

CONFESSION

Edwards was arrested at his home at 4:00 P.M. He was

not read the Miranda! warnings at that time nor did he

make any statements, but was taken to the police depart-

ment where he was read his rights. He indicated he under-

stood them and that he would submit to questioning. After

again having his rights explained to him, he was interro-

gated 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 state-

ment, 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,

Edwards asked to talk to the county attorney about mak-

ing a deal, which he was allowed to do. The negotiations

were unsuccessful. Edwards then reapproached the detec-

tive 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

not indicate, however, nor did the detective interpret his

statement to mean that he wanted an attorney before fur-

ther interrogation or that he wished to remain silent

thereafter. The detective, nevertheless, ceased question-

ing immediately after Edwards’ statement at about 6:30

P.M. Thereafter, Edwards was taken to the county jail.

‘Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966).

At 9:15 the next morning two other detectives arrived

at the jail and asked to see Edwards. Although they were

from the same section as the detective who had questioned

Edwards the day before and knew that he had been ques-

tioned, they did not know that he had made the statement

about an attorney. When the detention officer told Ed-

wards 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. Edwards was thereupon

taken to see the detectives. 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 Miranda rights.

Edwards 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 recorded becuase it could be used against him

in court. The detectives throughly explained that whether

or not the statement was recorded did not matter because

an oral statement could also be used against him in court.

Edwards replied “T’ll tell you anything you want to know,

but I don’t want it on tape.” Edwards then gave a state-

ment indicating his involvement in the robbery. The inter-

rogation 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 statement was voluntarily given

but that the detectives violated Miranda when they reap-

proached Edwards after his statement about an attorney.

However, the next day the judge reversed his ruling

based on State v. Travis, 26 Ariz. App. 24, 545 P.2d 986

(1976), and found the confession to be admissible substan-

tively.

Edwards claims on appeal that he exercised both his

right to an attorney and his right to remain silent, that he

did not subsequently waive either right, and that in any

case his statement was not intelligently made and was

therefore involuntary. First, we must determine whether,

having initially waived his rights, Edwards adequately re-

claimed them by declaring that he would wait to talk to an

attorney before making a deal.

Invocation of Previously Waived Miranda Rights

Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct.

1602, 1612, 16 Is.Ed. 2d 694, 706-07 (1966), holds that if a

defendant indicates “in any manner” that he wishes an at-

torney before speaking or that he does not wish to be in-

terrogated further, questioning must cease. Edwards

points to this language in Miranda and argues that his

statement was adequate to raise both his right to an attor-

ney and his right to remain silent.

The state argues, however, that by stating he wanted to

see an attorney before making a deal, Edwards was not

raising his right to an attorney as such, nor saying that he

wished to remain silent, but only asserting that he wanted

to see an attorney before talking anymore about a deal.

For this proposition, the state relies on State v. Travis,

supra. There, after the defendant had been arrested and

read his rights, he made equivocal statements about de-

siring an attorney. A detective asked him if he would

submit to a breathalyzer test and allow the interview to be

recorded. The defendant responded that he wanted to seek

the advice of counsel before granting either request. The

detective then told him that his wife had died and that he

would now be charged with first degree murder. The de-

fendant broke down and confessed his involvement. In

ruling that his confession was admissible, the court rea-

soned that the defendant never made a definite statement

to the effect that he either wanted to talk to an attorney

before answering questions or preferred that questioning

cease. Id. at 29, 545 P.2d at 991.

Notwithstanding the “in any manner’ language of

Miranda, supra, we are convinced that Miranda was not

intended to require that every reference to an attorney,

regardless of its ambiguity, must be construed as an invo-

cation of the Miranda rights.? We think Travis is correct

2 Miranda itself would seem to concede as much by indicating its

approval of the policy of the Federal Bureau of Investigation that the

in looking at a statement in the context made and at-

tempting to determine whether it is sufficiently clear to be

fairly interpreted as a request for an attorney or a demand

that interrogation cease. There is much authority in sup-

port of this view. See, e.g., United States v. Rodriguez-

Gastelum, 569 F.2d 482, 484 (9th Cir.), cert. denied, 436

U.S. 908, 98 S.Ct. 2266, _L.Ed.2d __ (1978); United

States v. Tokoph, 514 F.2d 597, 605 (10th Cir. 1975);

United States v. Howard, 470 F.2d 406, 407-08 (D.C. Cir.

1972); State v. Knapp, 114 Ariz. 531, 538, 562 P.2d 704,

711 (1977), cert. denied, U.S. , 98 S.Ct. 1458,

__.. L.Ed. 2d _.. (1976); State v. Garrison, 519 P.2d

1295, 1300-01 (Or. App. 1974).

Applying this reasoning in an evaluation of Edwards’

statement, it appears at first blush that the state’s argu-

ment is correct, i.e., that Edwards was saying that he de-

sired an attorney only if a deal was discussed further.

However, looking at the statement in the context made,

we find such an interpretation erroneous.

To accept the state’s position in this case and allow Ed-

wards’ confession to stand while holding that he asked for

an attorney for the limited purpose of making a deal would

be illogical. Edwards wanted an attorney before making a

deal. His part of the deal would have been his confession.

Therefore, to allow him to make a confession 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 to invoke his right to remain silent

only if questioned about a deal. We hold therefore, looking

at Edwards’ statement in the context made, that although

it was equivocal, its meaning was sufficiently clear and

therefore it must be interpreted as a request for counsel

and as a request to remain silent until counsel was pres-

ent.

initial decision as to whether, in an ambiguous statement, the defend-

ant has asked for an attorney is for the agent on the scene. See 384

U.S. at 485-86 & n. 55, 86 S.Ct. at 1633-34 & n. 55, 16 L.Ed.2d at

729-30 & n. 55.

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,

whether Miranda 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 constitutionally

permissible, was voluntary.

Per Se Rule Regarding Right to Attorney

Edwards argues that Miranda creates a per se rule that

once a defendant invokes his right to counsel he may not

then be questioned again by police until an attorney is

present. We do not agree. Although Miranda does require

that questioning cease after a defendant asks for an attor-

ney, 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 Circuit decision in United

States v. Rodriguez-Gastelum, 569 F.2d 482 (9th Cir.),

cert. denied, 436 U.S. 908, 98 S.Ct. 2266, __. L. Ed. 2d

___ (1978), that per se rules often cause a court to lose

touch with the purpose behind the rules. The goal of

Miranda is to insure that the right to an attorney and the

right to remain silent are not reduced to meaningless

phrases as the result of overzealous police practices. 384

U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed. 2d at 706. How-

ever, “a blanket prohibition against the taking of volun-

tary statements or a permanent immunity from further in-

terrogation, regardless of the circumstances, would

transform the Miranda safeguards into wholly irrational

obstacles to legitimate police investigative activity and

deprive suspects of an opportunity to make informed and

intelligent assessments of their interests.” (Emphasis

added.) Michigan v. Mosley, 423 U.S. 96, 102, 96 S.Ct.

321, 326, 46 L.Ed.2d 313, 320 (1975). Reading Miranda to

create such a per se rule would preclude a defendant, upon

intelligent reflection, from voluntarily and knowingly act-

ing as he thinks best. It would work to “imprison a man in

his privileges.” Adams v. United States ex rel. McCann,

317 U.S. 269, 280, 63 S.Ct. 236, 242, 87 L.Ed. 268, 275

(1942). We therefore hold, as did the Ninth Circuit in

Rodriguez-Gastelum, supra, that Miranda does not

create a per se rule precluding a defendant from initiating

further discussions with police or from responding to sub-

sequent inquiries from police after the right to an attorney

has been invoked so long as the waiver is otherwise volun-

tary.

Per Se Rule Regarding Right tu Remain Silent

Edwards also claims that Miranda creates a per se rule

against questioning by police after the defendant has in-

voked 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. Mosley, 423 U.S. 96,

102-03, 96 S.Ct. 321, 326, 46 L.Ed. 2d 313, 321 (1975), for

the proposition that Miranda cannot be interpreted to

“create a per se proscription of indefinite duration upon

any further questioning by any police officer on any sub-

ject,” we held that the questioning of the defendant by

police was permissible since the defendant’s right to cut

off questioning was scrupulously honored. 116 Ariz. at

146, 568 P.2d at 1044. We find Hatton controlling. Since,

as,in Hatton, Edwards was reminded of his Miranda

rights and was asked by the detectives if he would volun-

tarily make a statement, we conclude that his right to cut

off questioning was-scrupulously honored.

Voluntariness of Waiver

Finally, Edwards claims that his confession was involun-

tary since it was not knowingly made. In Arizona, confes-

sions 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,

roan, , 586 P.2d 1288 (1978). In determining the

voluntariness of a confession, the trail court must look to

the totality of the circumstances surrounding the confes-

sion 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 (1973); State v. Knapp,

114 Ariz. 531, 562 P.2d 704 (1977), cert. denied, ___ U.S.

, 98 S.Ct. 1458, _L.Ed. 2d _.. (1978). Once the

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

voluntary, the finding will not be upset on appeal absent

clear and manifest error. State v. Edwards, 111 Ariz. 357,

361, 529 P.2d 1174, 1178 (1974). We find no such clear and

manifest error.

Edwards claims that his comment “I’ll tell you anything

you want to know, but I don’t want it on tape” reveals his

misunderstanding of the use of the confession he gave and

that therefore it was not knowingly given. The state ar-

gues that the admissibility of an oral statement was thor-

oughly 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’ statement was voluntarily and

knowingly made, and applying the rules of law set out

above, we cannot say that the courts finding 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, how-

ever, 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 determin-

ing voluntariness. The trial court’s finding that the waiver

and confession 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 Criminal 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.

Although rule 6.1 can be read as Edwards reads it,? it

was not intended to require judicial presence and written

waiver of counsel before custodial interrogation nor have

we ever required such in order for the defendant to waive

his right to an attorney during custodial interrogation.

See, e.g., State v. Hall, ___Ariz. ___, 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.

Ramirez, 116 Ariz. 259, 569, P.2d 201 (1977); State v. Hat-

ton, 116 Ariz. 142, 568 P.2d 1040 (1977); State v. Knapp,

114 Ariz. 531, 562 P.2d 704 (1977), cert. denied, ___ U.S.

, 98 S.Ct. 1458, L.Ed. 2d __ (1978); State v.

Jenljns, 111 Ariz. 13, 522 P.2d 1090 (1974). We therefore

hold that rule 6.1(c) does not require that a waiver of a

defendant’s right to an attorney at custodial interrogation

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

317 A.R.S. Rules of Criminal Procedure, rule 6.1, provides in rel-

evant part:

a. 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 shall 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 thereafter, and sufficiently in advance of a proceeding to

allow adequate preparation therefor.

** *

c. Waiver of: Rights to Counsel. A defendant may waive his

rights to counsel under (a) and (b), in writing, after the court has

ascertained that he knowingly, intelligently and voluntarily de-

sires to forego them. When a defendant waives his rights to

counsel, the court may appoint an attorney to advise him during

any stage of the proceedings. Such advisory counsel shall be

given notice of all matters of which the defendant is notified.

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 re-

sulting prejudice denied him his sixth amendment rights.

Rule 8 Violation

Edwards was arraigned on January 23. On March 5,

Edwards moved for a redetermination of probable cause.

The court granted the motion on March 22 finding that the

state had failed to reveal all exculpatory 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 latter

alternative by filing a motion to stay and a special action.

The court of appeals granted the stay but denied relief and

later denied a motion for rehearing. The state then

petitioned this court for review which was denied on July

20. On July 30, Edwards was reindicted following a de-

termination by the grand jury that probable cause existed.

Edwards argues that the state should simply have rein-

dicated him pursuant to the trial court’s order rather than

seeking appellate relief and that since it chose the more

time-consuming procedure, the resulting 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.

First, there was a stay in effect during the period of the

appeal that necessarily halted all proceedings in the trial

court. Such a period is excluded time under 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 authorized by law

would deprive the state of a legitimate remedy. Where, as

here, there is no showing that the state’s action was

frivolous or taken in bad faith with intent to delay the de-

fendant’s trial, we think a rule limiting the options avail-

able to the state is wholly inappropriate. Computing the

time involved while excluding the time taken by the ap-

peal, the defendant had not, as of the date of his reindict-

ment, been denied a speedy trial inviolation of rule 8.

Finding that no violation had occurred to that point, and

noting that the speedy-trial limits begin again following

reindictment, State v. Soto, 117 Ariz. 345, 348, 572 P.2d

11838, 1186 (1977), and since Edwards alleges no sub-

sequent speedy-trial violation unless the earlier period is

included, we find that rule 8 was not violated.

Sixth Amendment Speedy-Trial Violation

Edwards alleges that he was denied his constitutional

right to a speedy trial by his lengthy incarceration while

awaiting trial. 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, 83 L.Ed. 2d

101 (1972);

1. The length of the delay.

2. The reasons for the delay.

3. 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.

Delay

A 14-month delay seems to be excessive, but without

looking into the reasons for the delay, we cannot conclude

that the delay was prejudicial per se.

Reason for Delay

Only four months of the 14-month delay was caused by

the state. Edwards claims that the state should be chas-

tised for using four months to appeal an order when it

could have simply reindicted as it ultimately was required

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 Cir. 1971), cert. denied, 404 U.S. 1022, 92 S.Ct.

698, 30 L.Ed.2d 672 (1972), the court looked at the dili-

gence of the prosecution in the appeal process and held

that a six-month delay because of the appeal did not vio-

late the defendant’s right to a speedy trial.

Edwards attempts to distinguish Osuna-Sanchez,

supra, and similar cases, e.g., People v. Stewart, 61 Mich.

App. 167, 232 N.W.2d 347 (1975), that approve the use of

interlocutory appeals by the state by pointing out that

these cases involve appeals from trial court orders sup-

pressing prosecutor’s evidence and were therefore abso-

lutely necessary to the prosecution’s cases. We are not in-

clined to accept this distinction nor hold that the state’s

right to challenge an adverse trial court ruling by special

action 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

Although the state argues to the contrary, we find after

examining the record that Edwards did adequately and

repeatedly assert his right to a speedy trial.

Prejudice to Defendant

Edwards claims that he was prejudiced by the delay be-

cause he was not able to locate two alibi witnesses essen-

tial to his defense. We do not believe the record supports

Edwards’ claim of prejudice for the following reasons.

Edwards made no offer of proof to the court of the alleged

testimony of the alibi witnesses had they been located.

Nor did he show that the witnesses would have been avail-

able 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 robbery. He was granted

numerous continuances in order to locate the witnesses

and the court issued several requests for attendance of

witnesses to one state in which it was thought the witnes-

ses were residing. The state had never interviewed the

witnesses nor did it know where they lived.

Although we recognize that these witnesses may have

aided Edwards at trial, we cannot say that their absence

prejudiced him to such an extent that he was denied a fair

trial. He is, after all, entitled to a fair trial, not a perfect

one. Bruton v. United States, 391 U.S. 128, 185, 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 lo-

cate the witnesses and since Edwards did not show that

the witnesses 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, 587 S.W. 2d 736,739 (Crim. App. Tex. 1976).

Edwards also alleges other bases for prejudice. We have

reviewed these claims and find them equally without

merit. Therefore, having considered all the factors re-

quired by Barker v. Wingo, supra, we conclude that Ed-

wards’ constitught to a speedy trial was not violated.

PRISON GARB

Edwards claims he was denied the due process right to a

presumption of innocence by being tried in prison garb,

citing Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1961, 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 defend-

ant 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.

446, 468, 573 P.2d 864, 868 (1977); State v. Williams, 113

Ariz. 442, 444, 556 P.2d 317, 319 (1976); State v. Bojor-

quez, 111 Ariz. 549, 553, 5385 P.2d 6, 10 (1975).

PRECLUSION OF DEFENSE WITNESS

During the trial, Edwards attempted to call a witness

that would have testified 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 befgore trial, neither had been disclosed to the state.

The state objected not only because Edwards had known

of the witness and of the new defense before trial and had

not disclosed them, but also because it believed that. tes-

timony of intoxication at 6:00 P.M. was not relevant to the

defendant’s participation in a robbery at 1:00 A.M. the

next morning, seven hours later. The court excluded the

witness as a sanction for Edwards’ nondisclosure. Ed-

wards argues that exclusion of the witness was am abuse of

discretion by the trial court. We disagree.

We have repeatedly held that the imposition of a sanc-

tion pursuant to 17 A.R.S. Rules of Criminal Procedure,

rule 15.7, is within the sound discretion of the trial court,

and absent a showing of prejudice this court will not find

an abuse of discretion. State v. Ramirez, 116 Ariz. 259,

268, 569 P.2d 201, 210 (1977); State v. Clark, 112 Ariz.

493, 495, 543 P.2d 1122, 1124 (1975). The prejudice must

be such 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 ab-

sence denied Edwards a fair trial.

CLOSING ARGUMENT

As the prosecutor began his closing argument he wrote

on a chalk board, “Defendant confessed.” At the beginning

Mate,

of Edwards’ closing argument, Edwards, representing

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 Ed-

wards characterizes as impermissible comments on his

failure to take the stand but which the state characterizes

as a justifiable response to Edwards’ statements which

were unsupported by the evidence before the jury:

“‘The evidence, you will recall, is what the witnes-

ses say from the witness stand here under oath. And

there is an important thing about witnesses and what

they testify to. They are subject to cross-examina-

tion. That is, you can ask the witness, “Well, how do

you remember that, Mr. Witness? How do you re-

member 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 oath that there was no confession, there

was no confession and the police are lying, there was

no confession? That incident never occurred.

No, ladies and gentlemen, nobody testified to that.

No witnesses were called that testified about that

confession not being made. No witnesses whatsoever.

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.’”

In determining whether these statements were im-

proper, we must obviously examine them in the context

made. See State v. Ramirez, 116 Ariz. 259, 263, 569 P.2d

201, 205 (1977). The state had introduced substantial evi-

dence that Edwards had confessed, 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 to make statements that were unsupported

by the evidence before the jury. Nevertheless, he argued

that he had not confessed and wrote “Defendant did not

confess” on the chalk board.

Upon reviewing these circumstances, we conclude that

Edwards’ oral and written statements before the jury

were improper since they were wholly unsupported by the

evidence. State v. Dutton, 106 Ariz. 463, 465-66, 478 P.2d

87, 89-90 (1970). The prosecutor’s statements were made

in response to Edwards’ argument. The error was invited

by Edwards. He cannot now raise error that he invited

hoping to benefit thereby. State v. Purcell, 117 Ariz. 305,

308, 572 P.2d 439, 442 (1977); State v. Wilcynski, 111 Ariz.

533, 535, 5384 P.2d 738, 740, cert. denied, 423 U.S. 8738, 96

S.Ct. 141, 46 L.Ed. 2d 104 (1975).

FELONY MURDER CONVICTION

Edwards argues that the death of the victim from a

heart attack that occurred during the robbery may not

form the basis of a felony murder conviction because 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 committed in per-

petration of a burglary or any other specifically named

felony is punishable as felony murder whether wilful and

premediatated or only accidental. See also State v. Hitch- ©

cock, 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 v.

Stamp, 2 Cal. App. 3d 203, 82 Cal. Rptr. 598 (1969), cert.

denied, 400 U.S. 819, 91 S.Ct. 36, 27 L.Ed.2d 46 (1970);

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

Edwards also contends that a conviction and sentence

‘for robbery, burglary, and murder violate the double-

punishment statute, A.R.S. § 13-1641 (now § 13-116). In

State v. Miniefield, 110 Ariz. 599, 603, 522 P.2d 25, 29

(1974), we held that convictions and sentences for both

first degree murder and arson (the underlying felony) did

not violate A.R.S. § 138-1641. Accord, State v. Clayton,

109 Ariz. 587, 600, 514 P.2d 720, 733 (1973). We find these

cases controlling.

SUFFICIENCY OF THE EVIDENCE

Edwards complains that there was not sufficient evi-

dence on which the jury could find that the robbery caused

the victim’s death. We do not agree. A pathologist tes-

tifying for the state indicated that, in his expert opinion,

the death resulted from a heart attack induced by the

anxiety resulting from being robbed at gunpoint. He reit-

erated 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

Since Edwards was sentenced pursuant to the portions

of A.R.S. § 18-454 which we held unconstitutional in State

v. Watson, ___. Ariz. , 586 P.2d 1253 (1978), cert. de-

nied, ___. U.S.L.W. , this case is remanded for re-

sentencing.

We have reviewed the entire record for fundamental

error and have examined all arguments raised by Edwards

and find that he was not denied a fair trial. The convictions

for robbery, burglary, and first degree murder are af-

firmed along with the sentences for robbery and burglary.

The murder conviction is remanded for resentencing pur-

suant to State v. Watson, supra.

CONCURRING: JACK D. H. DAYS, JUSTICE

JAMES DUKE CAMERON, Chief Justice

FRED C. STRUCKMEYER, JR., Vice Chief Justice

WILLIAM A. HOLOHAN, Justice

GORDON, Justice (Dissenting):

The majority opinion states that Miranda does not place

a per se ban on police questioning of a suspect after he has

invoked his right to counsel. This is clearly the law in

Arizona. This Court has held that questioning a suspect

after he has asserted his Miranda 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 v. Hatton, 116 Ariz. 142, 568

P.2d 1040 (1977).

Similarly, the Ninth Circuit Court of Appeals, in United

States v. Rodriguez-Gastelum, 569 F.2d 482 (9th Cir.

1978) cert. denied, 436 U.S. 919 (1978), held that although

questioning must stop after a right to counsel is asserted,

it can later resume if the suspect makes a waiver of the

right. Such a waiver of a previously asserted right must

meet the definition pronounced in Johnson v. Zerbst, 304

U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). That is to

say, it must be an intentional relinquishment or abandon-

ment 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 instigation of the police.

The facts of this case, however, do not meet the re-

quirements of either the Ninth Circuit or Arizona case

law. Edwards asserted that he wanted an attorney before

making a deal. At this point all questioning ceased. The

next morning, the detention officer told Edwards that de-

tectives 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 to.

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 relinquishment 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 inves-

tigating detectives. Despite the suspect’s prior assertion

of his right to counsel, detrectives questioned him the fol-

lowing morning, knowing that an attorney would not be

appointed from him until the afternoon. I find the lan-

guage of State v. Sauve, 112 Ariz. 576, 544 P.2d 1091

(1976) controlling on these facts.

“After the defendant’s refusal to answer questions,

the officers ceased interrogation, but their sub-

sequent conduct and statements were made to per-

suade the defendant to reconsider his position. Any

response under such circumstances cannot be consid-

ered ‘volunteered,’ and the statements were not ad-

missible.” 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 ques-

tioning 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 appointed, I

would find the defendant’s statements to be inadmissible.

FRANK X. GORDON, JR.

Justice

(Caption Omitted)

Proceedings March 4, 1977

A-30683

[136] LARRY BUNTING,

was thereupon called as a witness in behalf of the Defend-

ant Edwards, and, having been previously duly sworn,

was examined and testified as follows:

THE COURT: Sgt. Bunting, you’re still under oath and

you’re still under the Rule. We are hearing the Motion to

Suppress with regards to Mr. Edwards’ alleged state-

ments.

DIRECT EXAMINATION

BY MR. BROGNA:

Q. Sergeant Bunting, do you recall on what date you

arrested Robert Edwards?

A. The 19th of January ’76.

Q. Do you recall what time?

A. Approximately four in the afternoon.

Q. Where did that take place?

A. I believe the street is Twenty-Seventh just east of

Park.

Q. And who was present with you?

A. At the time of the arrest Detective Steve Bunting

and a uniformed officer; Officer Allen, I believe.

Q. At the time he was arrested did you go over his

Miranda rights with Mr. Edwards?

[137] A. Not at the moment of arrest.

Later at the police station.

Q. Did you take any statements or were any state-

ments made to you at the time of arrest before the police

station?

A. Define what you mean by statements.

Q. Did he say anything to you?

A. Just that he wasn’t going and—he wasn’t going

with us.

Q. There was a scuffle and there was a hassle and then

you finally securied him and he went with you; is that cor-

rect?

A. Yes.

Q. Did he make any statement to you relating to the

LaConga Bar burglary-robbery-homicide?

A. Yes.

Q. During that period of time?

A. During that period of time. At the time of arrest,

no.

Q. Did he make any statement to you about any of-

fense during that period of time up to the station?

A. No.

Q. And where was he taken when he was taken to the

Tucson Police Department?

A. To the Detective Division.

[138] Q. Where was he placed?

A. In the Captain’s office.

Q. What captain?

A. I don’t recall what captain we had at that time. It

was just the only office available at that particular time.

Q. And was there someone in the office with him, did

someone go in the office with—

A. Detective Steve Bunting and myself and Mr.

Barefield.

Q. Where does the name Barefield come from, this”

name, as far as you know?

A. Well, I always thought his name was Barefield.

Q. You use it in your report; is that correct?

A. Correct. I wonder where Edwards comes from

rather than Barefield. He has been arrested a number of

times.

Q. Under the name of Bareiield?

A. Barefield.

Q. Did an interrogation take place?

THE COURT: I’m ignoring that testimony.

MR. BROGNA: Excuse me?

THE COURT: I'll ignore the testimony that he has been

arrested a number of times.

[1389] MR. BROGNA: I don’t want it stricken necessarily

for this hearing.

THE COURT: All right. Go ahead.

Q. (By Mr. Brogna) Did an interrogation or attempted

interrogation take place of Mr. Edwards in that captain’s

office?

Yes.

Were his Miranda rights read to him at any time?

Yes.

When?

By myself at the beginning of the interview.

And how did you relate those rights to him?

By reading to him from the rights card. He ac-

knowledged he understood his rights, waived his rights

and stated that he was not involved, he had an alibi, and

wanted to make a statement in that regard.

>O>O>o>

Q. And he gave you a statement?

A. Yes, he did.

Q. And it was recorded?

A. Fee.

Q. And do you have the recording with you?

A. No, I do not.

140] Q. Do you have the tape recording available to

A. Yes.

Q. And that statement concerned an alibi.

A. Yes.

Q. For Mr. Edwards relating to his noninvolvement in

the LaConga Bar robbery-burglary.

A. That’s right.

Q. At anytime in the presence of the other officer or

with you alone, was there some type of an attempted

negotiation for a deal?

A. Yes.

Q. To the best of your recollection, Sergeant Bunting,

what was that about?

A. As I recall Detective Hallums, who apparently

knew the defendant, talked to him shortly after we took

the tape-recorded statement from him. And Hallums told

me that he wanted _—

Q. Wait a minute. Were you present when Hallums

talked to him?

A. No.

Q. Was Hallums present when the taped alibi state-

ment was taken?

A. No.

Q. How long was it from the time he was arrested until

the time he gave this taped quote [141] alibi unquote

statement?

A. It was very shortly after we arrived at the police

station.

Q. How did Detective Hallums get into the picture?

A. Hallums was in the office. Hallums worked another

detail at the time and apparently knew the defendant.

Hallums talked to him for a short time and Hallums told

me he wanted to talk to us again. That’s when we went

back in and he started talking about the deal.

Q. Did Hallums say he wanted to talk to the defend-

ant?

A. Did Hallums say that?

Q. How did he get passed on to Hallums, is what I’m

getting to, if you recall?

A. I don’t really recall. We were just there and Steve

and I came out and __

Q. Steve who?

A. Steve Bunting. And I don’t __ I’m not really sure

how Hallums come to talk—whether Barefield wanted to

talk to him or Hallums requested to go and talk to him.

Q. So you don’t know if Hallums approached Robert

Edwards or Mr. Edwards approached him?

[142] A. I don’t recall, no.

Q. But you did get the feeling from talking to Detec-

tive Hallums that Mr. Edwards wanted to talk further

with you.

A. That’s what Hallums said. “He wants to talk to you

some more.”

Q. Did he say he wants to make a deal with you?

A. No. No, not that I recall.

Q. How long was this statement that Mr. Edwards

gave you?

A. I don’t recall the number of pages.

Q. The taped statement.

A. The taped statement, I don’t recall the number of

pages.

Q. It was transcribed; is that correct?

A. Yes.

Q. I'll show you a document marked as Defendant’s A

for identification—C. Defendant Edwards’ C for identifi-

cation.

A. (Document handed to witness.)

Q. Do you recognize that document?

A. Yes, sir.

Q. What is it?

A. Transcription of the tape recording that was taken

from Mr. Edwards. It’s eight [143] pages long.

Q. Were you the questioning officer, the interrogating

officer?

A. Yes. Yes, I was.

Q. This was his so-called alibi statement.

A. That’s correct.

Q. To which you did not give much credence.

A. That’s true.

Q. And which you so informed Mr. Edwards.

A. That is true.

THE COURT: The clerk is doing this the right way and

we have done this before. She’s just marking ABC and you

don’t have to call it any particular defendant’s exhibit.

Q. (By Mr. Brogna) Did you again go or have an oppor-

tunity to speak to Mr. Edwards after you spoke to Detec-

tive Hallums?

A. Yes, sir.

Q. Is Hallums a detective now?

A. No, sir.

Q. What’s he doing?

A. He’s a Field Sergeant now.

Q. When did you talk to Edwards and where the next

time?

A. At the same office in the Detective Division, same

evening. I don’t recall the exact [144] time.

Was it shortly after Hallums indicated that __

Yes,

___ that Edwards wanted to speak further?

Yes.

How long was he with Hallums?

I don’t know.

What did you do in the meantime?

I don’t recall.

Q. What happened when you talked to __ who was

present when you talked to Mr. Edwards again?

A. Steve Bunting.

Q. During the next conversation Mr. Edwards re-

quested an attorney before he would talk further; is that

correct?

No.

Before he would make a deal?

Yes.

No. He was willing to make a deal if I would make a

deal at that point. And it was __ it was left that we would

ee re re ee

>OoPo>

wait—or he was going to wait until he had an attorney

before he made the deal.

[145] Q. The deal being the consideration for a state-

ment of implication, of self-implication, is that what you

mean?

A. He never did tell me what he was going—going to

say.

Q. So you weren’t going to offer him anything.

A. I wasn’t offering him anything at all except the op-

portunity to make his side of the story.

Q. Showing you Defendant’s B for identification, a

copy of your report, more specifically the second page

thereof—is that your report, first of all?

A. Yes. Yes, it is.

Q. Is there not an indication that he wants to have an

attorney?

A. An indication to have an attorney?

Q. Yes.

A. Yes, there is an indication that he wanted to have

an attorney at a certain point.

Q. At what__

A. Would you like me to read_—

Q. Without reading, if you can. From your own mem-

ory, if you can. If you can’t, then you can read it.

[146] A. Idon’t—the question is what, sir?

Q. When did he want an attorney?

A. He never asked for an attorney. He stated he was

going to wait until he had an attorney to make a deal. That

was the only talk of an attorney with the exception he

wanted—as a matter of fact, he insisted on talking with

the prosecuting attorney and try making a deal.

Q. Before that?

A. During this—during this deal negotiation that he

was trying to work out.

Q. He did in fact talk to a deputy county attorney.

A. Yes, he did.

In whose presence was Mr. Edwards at that point?

Detective Bunting and myself, Steve Bunting.

Was that the time after he had spoken to Detective

Hallums and you had again talked to him in the captain’s

office?

[147] A. Yes. This was after he spoke with Hallums.

Q. The negotiations for this deal at some point broke

down.

A. That’s true.

Q. And at some point Mr. Edwards indicated that he

was not going to make any type of deal until he talked to

his attorney first.

A. His attorney, or got an attorney, yes.

Q. All right. Now, what—what deal are you talking

about or was he talking about?

A. I’m not—I’m not really sure because you’ve got to,

if I can—

Q. Randy Stevens?

A. Yes, he did.

Q. Chief Deputy County Attorney.

A. Yes.

. On the telephone?

A. Yes.

Q. Go ahead.

A. —picture the setting.

Q. Go ahead.

A. This was a situation where I had explained to

Barefield the allegations that the other defendants had

made concerning him, namely Soto and Kevin Reed.

And this was before the taking of the taped statement.

The taped statement was taken and his alleged alibi

was—was what was on the tape.

Then Hallums talked to him and then he wanted to talk

more about what these people had said, so we went back

over it again, about the allegations that Reed had made

and Boy (phonetic) Soto had made and then he explained

that he had been around, he knows what’s going on, and he

wants to make a deal if it will help him.

[148] I explained to him that I’m not making a deal, I’m

not offering a deal. If he has a side of the story to tell,

that’s what I’m willing to listen to.

Then he requests to talk to the prosecuting attorney.

The prosecuting attorney at the time was Becker, who we

couldn’t get a hold of. He spoke to Stevens briefly.

At one point in all of this he was going to make a state-

ment and then he changed his mind and it was just kind of

a back and forth situation whether he was going to make a

statement or not.

He was trying to get me to commit myself to a deal to

him and I was not going to make him any deals.

That’s where it eventually broke down and he said, “I’m

just going to wait until I get an attorney to make a deal for

me.”

[149] Q. As far as you’re concerned, Sergeant, when

you say a deal, you meant that he confessed his complicity

or be truthful about his complicity, if anything, in the

LaConga incident in return for, say, a reduction of charges

or something like that?

A. This is—this was my understanding of what the

deal would have been.

Q. A deal means as far as getting what you want from

the suspect, a deal means a statement in the broad sense,

a confession more specifically.

A. I’m not sure I understand your statement.

Is that a statement or a question to me?

Q. It was a question. I'll repeat it, or rephrase it.

At that time deal to you meant a benefit from any deal

or the deal to you would have been partly getting a state-

ment from him.

A. Let me make it clear, I was not offering a deal. My

purpose of interviewing him was to obtain a statement or

an admission to be used in court.

Q. Against him?

[150] A. Against him.

Q. All right.

A. It was him, Mr. Barefield, that was wanting the

deal that I was not going to commit myself to or the

County Attorney’s Office did not commit themselves to.

Q. Did the—when he did indicate that he was going to

wait until he got an attorney before talking any more

about a deal, did questioning continue after that point?

A. No.

Q. Had he been arraigned before a Magistrate up to

that point?

A. No, he had not.

Q. All right. And did he, after mentioning that he was

going to wait until he got an attorney, did he—before he

talked further about a deal, is that the substance of what

he said, is that a fair statement?

A. I think 1 should point out to you that it wasn’t just

this one time that he was talking about a deal.

It was, you know, it was kind of a back and forth situa-

tion where he was going to make a statement without a

deal and then he decided he was going to wait and get an

attorney [151] and get a deal and—but there was no ques-

tioning on our part as to his particular part in this.

I just pointed out to him, “The only thing I’m going tv

give you is the opportunity to make your side of the story

known.”

And he did make at least an initial side of the story

known, or an alibi known.

Q. So you did have a statement which you obviously

didn’t believe. There was some discussion at least on his

part about a deal talking with you and the county attor-

ney. And then he was sent back to the Pima County Jail.

A. Not sent back. Sent to.

Q. Sent to the Pima County Jail.

A. Right.

Q. And his parting words were something to the effect

that, “Wait until I get an attorney,” or were there more

words from his mouth at that time?

A. Oh, there were a lot of words from his mouth. I

don’t recall if those are the exact words.

When he left there my impression was that he was going

to wait until he got an attorney, try to get the best deal he

could for him.

[152] Q. But you had hopes that he might talk before

that.

A. I always have hopes, Mr. Brogna.

Q. All right. But you did hear that he did mention that

he was going to wait until he got an attorney.

Before making the deal?

Before making the deal.

Yes. At that particular time that was __

All right.

—his parting statement.

Did you send Detective Marmion to the Pima

nty Jail the next morning to talk to Mr. Edwards?

No, I did not.

Did he go on his own to your knowledge?

Yes.

And __—

And I was __

Go ahead. I’m sorry.

I was pleasantly surprised when he come back and

me the news.

Had you spoken to Detective Marmion?

I’m sure I had.

About Mr. Edwards?

A. About Mr. Edwards?

Yes.

I don’t—I can’t say for sure. I would assume so.

EPOPOPOPrPzEOPO POP

rOROP>SO

Q. You would assume so. Was Detective Marmion in

the police station when Mr. Edwards was being interro-

gated and the statement being taken, the taped state-

ment?

A. I don’t recall.

Q. But this was Marmion’s case, was it not?

A. Yes. He was the lead detective on it, yes.

Q. And he was informed that he had given—that Mr.

Edwards had given an alibi statement, was he not?

A. I don’t have specific recall of it. Normally operating

circumstances, he would have been informed, yes.

Q. Now, Mr. Williams was to be arraigned at—excuse

me—Mr. Edwards was to be arraigned I guess, at one

thirty or two o’clock. Was that in effect the initial ar-

raignment?

A. Yes, I believe they were.

Q. Now, and before a public defender or an attorney

was appointed.

To your knowledge is that when [154] attorneys are cus-

tomarily appointed?

THE COURT: To the Court’s knowledge it is, if you

want that.

MR. BROGNA: I would ask the Court to take notice of

the proceedings.

: Q. (By Mr. Brogna) Detective Marmion, do you know

what time he went over to speak to Mr. Edwards the fol-

lowing morning?

A. No, I don’t.

Q. Do you know whether it was in the morning?

A. I believe it was, but I can’t be certain.

Q. Do you know whether it was before arraignment

and he had an attorney appointed?

A. Just from my knowledge of the way arraignments

run and how the procedure is, I would say that would have

been prior to an arraignment.

Q. Do you remember any specific conversation be-

tween Detective Marmion and yourself regarding defend-

ant Edwards’ case prior to Detective Marmion going over

to the Pima County Jail the following day?

A. No, sir, I don’t.

Q. Did Mr. Edwards request that you come yourself to

the Pima County Jail or that Detective [155] Marmion be

sent out there?

A. I have no knowledge of such a request.

Q. Your report does not indicate any such request for

additional interrogation or talk of a deal; is that correct?

A. That is correct.

Q. Did you ever—you being the Sergeant of the

Homicide Detail—did you ever direct any of your detec-

tives not to bother Mr. Edwards any further?

A. No, sir, I didn’t.

Q. Again referring specifically to your report, Defend-

ant’s B for identification, the second to the last paragraph

where the attorney is mentioned, will you read that entire

sentence into the record.

A. “At one point Barefield said he was going to make a

statement and then changed his mind and stated that

without a deal he was not going to make a statement. He

would wait for his attorney to make a deal for him.”

MR. BROGNA: I have no further questions.

, THE COURT: Mr. Lingeman.

CROSS-EXAMINATION

[156] BY MR. LINGEMAN:

Q. Mr. Bunting, at anytime during the course of that

conversation, and prior to this taped conversation, at any-

time during this day that you made the arrest and that you

have been testifying to, did Mr. Williams—excuse

me—Mr. Edwards ever state to you at anytime that he

didn’t wish to talk to you without an attorney being pres-

ent?

A. No, sir.

Q. Did he ever at anytime during this day that the ar-

rest was made, during the day that you have been tes-

tifying about, did he indicate that he wished to have an

attorney appointed for him?

A. No, sir.

Q. Is the only thing he ever said with reference to an

attorney this statement you just read from your report

and that he would wait and let an attorney make a deal for

him?

Is that the only thing he ever said reference an attor-

ney?

A. No. He said he wanted to talk to the prosecuting

attorney.

Q. Reference any attorney other than the [157] prose-

cuting attorney, is this the only statement he had ever

made about attorneys?

A. Correct.

Q. During your conversations with him was he cooper-

ative to the extent that he was very talkative during the

entire course of your inquiry about the LaConga Bar rob-

bery?

A. Yes, he was.

Q. Did he ever at anytime indicate to you that he

didn’t wish to talk to you or didn’t wish to make a state-

ment prior to the statement you took, the taped state-

ment, the alibi statement, I’ll refer to it as.

A. No, sir.

Q. After the alibi statement was he stil! talkative with

you?

A. Yes.

Q. And apparently at some point in time he indicated

he wanted to make a deal.

Is that the first time he ever indicated to you that he

wished to talk to you some more about the LaConga Bar

robbery additionally to what he had said in the alibi state-

ment?

A. Yes.

Q. For some period of time after this there was talk

about a deal and you weren’t giving him [158] any deal and

he wanted to talk to the county attorney and he did talk to

the county attorney; is that correct?

A. Correct.

Q. And during all of this time he continued to talk to

you and never requested an attorney or never requested

that he shouldn’t be talked to or never in any way indi-

cated that he didn’t want to talk to you; is that correct?

A. That is correct.

Q. Did Mr. Edwards seem to understand your ques-

tions and were his answers appropriate to his questions?

A. Oh, yes.

Q. Did you have any problem communicating with him

in a rational manner?

A. No, sir.

Q. And you had advised him of his constitutional rights

off a rights card; is that correct?

A. Twice he was advised.

Q. Could you go ahead and advise us the way you ad-

vised him.

A. Which time?

Q. Either time, if it was the same. If it was different,

let me know.

[159] A. Prior to the interview after arrest, he was

read from the rights card and then his rights were read to

him again and placed on tape and he was advised to the

following.

“You have the right to remain silent. Anything you say

can and will be used against you in a court of law. You

have the right to have an attorney to be with your prior to

questioning and during questioning if you so desire. If you

can’t afford an attorney, you have the right to have an

attorney appointed for you prior to questioning.”

He was asked if he understood these rights. He said he

did.

“Now, having been advised of these rights and under-

standing these rights, will you answer my questions?”

Which he did.

Q. When you finally terminated the discussion of a deal

and the negotiations, or whatever was going on that day,

did Mr. Edwards tell you, “I’m not going to talk to you

any more and I don’t want to talk to the police any more

until I see a lawyer”?

A. No, sir.

Q. Did he ever indicate to you that he would not talk to

you any longer perhaps by [160] saying, “I don’t want to

talk to you any more about this case,” or, “I don’t want to

talk to any police officers”?

Either an express statement or an implied statement.

A. No, sir.

MR. LINGEMAN: That’s all the questions I have.

REDIRECT EXAMINATION

BY MR. BROGNA:

Q. The sentence that you read from your report, he

uses the word—he uses the term State in the same sense

that he uses the word deal and attorney and you did not

conceive of that as meaning—you conceived of these as be-

tween two different things, a statement and a deal.

MR. LINGEMAN: I think that’s an improper question.

It’s Detective Bunting’s statement that’s contained in

there.

_ THE COURT: Overruled. That’s what I understand he

is asking.

THE WITNESS: The statement that’s in the report is

the way I dictated the report to refresh my memory con-

cerning the circumstances [161] how it occurred at that

time.

I’m not saying that this was his exact words. This was

the meaning that I attached to it.

Q. (By Mr. Brogna) That without a deal he was not

going to make a statement and he would wait for his attor-

ney to make a deal.

Those are your words, Sergeant, in the report.

A. Perhaps it—

MR. LINGEMAN: Your Honor, I am going to object

until there is a question before the witness.

THE COURT: Sustained.

Q. (By Mr. Brogna) Are those your words?

A. These are my words, yes.

MR. BROGNA: No further questions.

MR. LINGEMAN: I have nothing further.

THE COURT: You may step down.

MR. LINGEMAN: May this witness be excused at least

for today?

THE COURT: Yes. You are excused.

MR. BROGNA: Subject to recall.

THE COURT: Yes. Everyone has to remain available in

this case.

MR. BROGNA: I call Mr. Edwards to the [162] stand.

ROBERT EDWARDS,

the defendant herein, is thereupon called as a witness in

his own behalf, and being first duly sworn, was examined

and testified as follows:

THE COURT: Good afternoon, Mr. Edwards.

THE WITNESS: Good afternoon, sir.

THE COURT: Proceed.

DIRECT EXAMINATION

BY MR. BROGNA:

Q. Would you state your name for the record.

A. Robert Edwards.

Q. Were you present when Detective Sergeant Bunt-

ing just testified?

A. Yes, I was.

Q. Did you in fact give a taped statement to Detective

Sergeant Bunting at the Tucson Police Department on

January 19, 1976?

A. Yes, I did.

Q. The day you were arrested?

[163] A. Yes, sir.

Q. Do you recall what, if anything, you said to

Sergeant Bunting about making a further statement?

A. No, I didn’t.

Q. I said what if anything do you recall, do you re-

member saying anything about another statement?

A. No.

Q. Did you give another statement—

A. No.

Q. —to the police.

Did—did an officer at any other time attempt after that,

after Sergeant Bunting talked to you, did any other officer

attempt to get another statement from you?

A. Sergeant—Detective Marmion.

Q. And when did that take place?

A. That took place the next morning about eight

o'clock or nine somewhere.

Q. Did you ask—

THE COURT: Where did this take place?

THE WITNESS: This took place at the County Jail.

Q. (By Mr. Brogna) And did he come over at your re-

quest?

[164] A. No, I didn’t request to see nobody.

Did you ask to see Detective Marmion?

No, I didn’t ask to see him.

Had you been arraigned in court yet?

No, I wasn’t.

>O>eo

MR. BROGNA: No further questions of Mr. Edwards at

this time.

THE COURT: Mr. Lingeman.

CROSS/EXAMINATION

BY MR. LINGEMAN:

Q. Did you give a truthful statement to Detective

Marmion that day?

A. No.

Q. What did you do?

A. Detective Marmion came down and asked me to

make a statement and I already told him I had made a

statement I wasn’t involved in nothing.

And he told me that—that he was going to catch Willie

Williams and he was going to make a statement and there

was a couple of more had made statements against me.

Q. I guess there was another detective with Detective

Marmion.

A. I think Detective Hallums.

Q. You told those gentlemen you didn’t [165] want to

talk anymore and you didn’t give them another statement.

They got another statement.

From you?

I don’t know how they got it, but—

Maybe I confused you.

Repeat the question again.

Sure, Mr. Edwards.

The next day when Detective Marmion and the other

detective came to talk to you, this was the day after you

were arrested, I guess you’re saying you didn’t give them

another statement, they asked you for one and you said

you didn’t have anything to say, you weren’t involved; is

that right?

A. They said more t.an that.

ere? © >

Q. Did you give them a statement about your involve-

ment?

A. Idon’t understand what you’re talking about.

Q. Did you tell them at that time, the day after your

arrest, did you tell Detective Marmion and the other de-

tective about your involvement in the LaConga Bar—

A. No, I didn’t.

Q. There was no statement. They tried to [166] get one

and you told them you didn’t have anything more to say

about it; is that right?

A. I told them I didn’t have anything more to say

about it and they left and they said they was going to pay

me back.

MR. LINGEMAN: Okay. That’s all I have.

THE COURT: You may step down.

THE WITNESS: Yes.

(Witness leaves stand.)

MR. BROGNA: Call Detective Marmion.

THE COURT: Before we call the witness, Mr. Noe, you

are here and have you got anything to take up with the

_ Court?

MR. NOE: Nothing at this stage, Your Honor.

THE COURT: Thank you.

MR. BROGNA: Detective Marmion, please.

[167] VICTOR Z. MARMION,

was thereupon called as a witness in behalf of the defend-

ant, and being first duly sworn, was examined and tes-

tified as follows:

DIRECT EXAMINATION

BY MR. BROGNA:

Q. Would you state your name, please.

A. Victor Z. Marmion.

Q. Did you obtain a statement from Robert Edwards

on January 20th of 1976?

A. A verbal statement, yes, sir.

Q. Where was this statement obtained?

A. Pima County Jail.

Q. Who was with you?

A. Detective Milne.

Q. What time was it?

A. When I first—when we first contacted Mr.

Barefield it was approximately 9:15 a.m.

Q. Did Sergeant Bunting dispatch you to the jail?

A. No, sir. I went there of my own accord.

Q. Did you know he had given a statement the day

before that to Sergeant Bunting that was on tape?

[168] A. I knew Sergeant Bunting had spoken with Mr.

Barefield. I knew the very basic facts surrounding his

statement as far as an alibi and that he was denying being

involved in this incident.

Q. Did Sergeant Bunting tell you that Mr. Barefield,

as you call him, wanted to see or talk to an attorney before

he made any quote deal unquote?

A. No, I don’t recall Bunting telling me such a thing.

Q. Were you the—were you aware before going out to

the jail that Mr. Edwards at one point the day before men-

tioned an attorney?

A. No. When I went out to the County Jail I wasn’t

really that concerned with what he had said the day be-

fore. I went out there of my own accord to see what he

was going to tell me that particular day.

Q. You weren’t concerned that he had said anything

about an attorney or a deal?

MR. LINGEMAN: Your Honor, I’m going to object.

Asked and answered.

The detective has indicated what he knew and didn’t

know already, specifically about those two facts.

[169] THE COURT: Overruled. You may answer. Do you

remember the question?

THE WITNESS: No, sir.

THE COURT: The question was you weren’t concerned

about an attorney or a deal.

THE WITNESS: No, sir, not at that time. I just went

out on my own.

Q. (By Mr. Brogna) Went out before arraignments?

A. Well, if it was about nine fifteen in the morning I

would have to say yes.

Q. It isn’t your practice to go out after they have been

appointed attorneys?

MR. LINGEMAN: I object. That’s irrelevant what their

practice is.

The question is in this case about did he go out before or

after.

THE COURT: Sustained as to the form of that question.

You may inquire further.

Q. (By Mr. Brogna) Were you aware that Mr. Edwards

was not arraigned or brought before a Magistrate for an

initial appearance at the time you went out?

A. I was aware of it sometime that morning while I

was talking, but I don’t remember what stage he told me

that he didn’t have an [170] attorney, but he did mention it

to me.

Q. You knew what—what time people were brought

before a Magistrate, did you not?

A. Ido. Usually about one thirty, two o’clock.

Q. So you were—you were sure he didn’t have an at-

torney yet appointed.

A. As Ihave stated, I didn’t give it any thought until I

got up there and had some conversation with Mr.

Barefield and Mr. Barefield indicated to me he didn’t have

an attorney.

I had one thing on my mind, to go out there and ques-

tion him about his murder and see what he was going to

say.

Q. He didn’t want to—he didn’t want to talk to you or

have you put anything on tape, did he?

A. He wanted to talk to me.

Q. He didn’t want you to put anything on tape, did he?

A. He didn’t want to give me a tape-recorded state-

ment. That is correct.

Q. Did he tell you why he didn’t want you to tape a

statement?

A. He said he just didn’t want it on tape.

Q. He did not relate that he said he [171] didn’t want

to put it on tape because he knew it could be used against

him, it could be incriminating to him?

A. If I can backtrack, I think I can explain this.

Q. I want you to ask (sic) that question.

MR. LINGEMAN: I think he has a right to explain his

answer if he needs to.

THE COURT: You have to answer the question, but

you may explain your answer if necessary.

THE WITNESS: Repeat the question.

Q. (By Mr. Brogna) I don’t remember the question.

THE COURT: Do you want the reporter to read it?

MR. BROGNA: Please.

(Whereupon, the reporter read the last question.)

Q. THE WITNESS: He said he didn’t want it to be on

tape. I made the reply, “What’s the big deal? There are

two of us here. We can both testify to it if you talk to us.”

He said, “I don’t want it on tape.”

This is approximately—I had played eight or no more

than nine minutes of Manny Soto’s statement.

[172] Q. (By Mr. Brogna) Let me show you Defendant’s

A for identification purposes, which purports to be a copy

of your report.

Would you personally identify if it is?

A. Yes, that appears to be a copy of my supplement.

Q. There is a portion of your report relating to your

interrogation of Mr. Edwards at the Pima County Jail on

January 20th, 1976.

Could you find that?

A. Yes. It starts on Page approximately 6 and con-

tinues on to Page 7.

Q. There is a portion of that—more particularly that in

which you describe the reasons for Mr. Edwards not hav-

ing you record any statements, is there not?

A. That’s correct. He indicated they would be used

against him in a court at a later time. He would tell us

anything we wanted to know.

Q. But not—but not have it taped; is that correct?

A. That’s what he said.

Q. Because he was afraid that that could be used

against him in a court of law.

[173] A. Well, he told me that it would be used against

him in a court later. Whether or not he was afraid I can’t

answer that. I can’t answer what was going through the

man’s mind.

As I have stated, he said he did not want to give us one

because it would be used against him later on.

I said, “Big deal. There are two of us. We can testify

about it.”

He said, “No, I don’t want to give one.”

Q. Are you saying, Detective Marmion, that he—he

didn’t want to give you a tape—he told you he didn’t want

to give you a tape recording because he knew it could be

used in a court of law, but he decided that he was going to

give you an oral statement because he knew very well that

that could be used in a court of law?

A. What I’m saying, the man decided that he didn’t

want to give me a taped statement and he said he was

going to give us an oral report. What reasons he had I

don’t know.

Q. You weren’t fast-talking him with a tape recorder?

A. I didn’t have a tape recorder.

TIED PC CPE! hee ae ee

Q. You had a tape recorder in there with [174] you.

A. I had it in there with me, correct, but I didn’t have

it on.

Q. Why was—who brought up the tape recorder first

of all?

A. Barefield.

Q. And in what context did he bring up the tape rec-

order?

A. He said he would talk to us, but first he wanted to

hear part of Manny Soto’s statement.

Q. Did you play part of Boy Soto’s statement?

A. I did.

Q. Did any—did that tape recorder come up again ref-

erence a statement by Mr. Edwards?

A. I don’t quite understand the question.

A. Did Mr. Edwards in reference to something he was

going to say, mention a tape recorder, that he didn’t want

it or he did want it or he didn’t care if it was there?

A. As I stated, I asked him if I could record his state-

ment and he said no. That’s the only time I recall him

bringing it up again.

Q. Did he give you a reason why he didn’t want it re-

corded?

A. Yes. He said he didn’t want it used [175] against

him in court later on.

THE COURT: I think we are going to have to stop, Mr.

Brogna, at this point. Is that satisfactory with you?

MR. BROGNA: Yes, sir.

THE COURT: We'll stand at recess until one thirty

Monday afternoon with this witness on the stand and we'll

complete the motion before we go back into the other one.

MR. LINGEMAN: Judge, it occurs to me that if we

have to leave to go out of town on the matter that we

have—

THE COURT: Somebody let me know and we’ll get

some other work.

(Whereupon, the evening recess was had.)

(CAPTION OMITTED)

PROCEEDINGS MARCH 7, 1977

A-30683

[9] VICTOR Z. MARMION,

thereupon resumed the stand as a witness in behalf of the

Defendant Edwards, and having been previously duly

sworn, was examined and testified as follows:

‘DIRECT EXAMINATION (continued)

BY MR. BROGNA:

Q. When you saw Mr. Edwards at the Pima County

Jail on January 20th, 1976, did you take some tapes with

you?

A. Yes, sir, I did.

Q. Any particular person’s tape?

A. I had Manny Soto’s tape with me.

Q. Prior to going to the Pima County Jail and seeing

Mr. Edwards, did you have knowledge that he requested

to hear Soto’s statement?

A. No, sir.

Q. Did you bring the tape at your own initiative?

A. Yes. I was carrying it with me.

Q. Did you—when you walked in or when you first

started talking to Mr. Edwards, did you suggest that he

should listen to Soto’s conversation?

A. No, sir. It was played for Mr. Barefield [10] at his

request.

Q. What did he do, ask you, “What’s that you’ve got

with you?”

A. No. He had knowledge that we had a statement

from the other suspect Soto, and—

Q. You had a confession from Soto?

A. That’s correct.

Q. And how did he get knowledge of that?

A. Oh, I don’t—I can assume, but I’m not positive be-

cause I wasn’t present at the time.

Q. You didn’t tell him?

A. No.

Q. When you walked in was Detective Milne with you?

A. Yes, sir.

Q. When you walked into the jail where did this con-

versation take place?

A. In one of the attorneys’ booths.

Q. You walked over there with the tape of Mr. Soto

and a blank tape, I take it?

A. I remember having the whole file with me. I had

the tape recorder and some tapes. I don’t recall exactly

how many.

Q. Do you remember how the conversation in that

room was initiated or who initiated the conversation?

[11] A. Yes, sir.

Q. Go ahead.

A. From the beginning?

Q. Yes.

A. I got there. I identified myself to Mr. Barefield as a

homicide detective.

He said something to the effect, I don’t remember his

exact words, that he recognized me from seeing me the

night before at the Detective Division.

I told him I was the detective that had the case and I

wanted to talk to him.

I then advised him of his constitutional rights. He re-

plied that he would talk to me and tell us anything he

wanted to know, but, first, he wanted to hear Manny

Soto’s statement.

I played—proceeded to play Soto’s statement.

I played approximately nine, no more than 12 minutes,

of the statement to him.

Q. All right.

A. Then I stopped. I stopped the tape and asked him if

he would give us a statement.

Q. What did he say?

A. He said because he didn’t want it used [12] against

him in court.

MR. BROGNA: I have no further questions.

THE WITNESS: He didn’t—

THE COURT: Just a minute. Just a minute. Have you

finished answering Mr. Brogna’s question?

THE WITNESS: No. I was going to clarify that it was

the taped statement that he didn’t want to be used in

court.

THE COURT: Do you want to examine further?

MR. BROGNA: Yes, please, Your Honor.

Q. (By Mr. Brogna) He said he didn’t want to give you

a taped statement because it could be used in court?

A. Yes, sir. And then I proceeded to say something

else.

Q. What did you say?

A. I said if you are going to give us a verbal state-

ment, oral statement, big deal. Milne and I can testify. We

would rather have it in your words.

He said, “I just don’t want to give a taped statement.”

Q. Because it could be used in court.

[13] A. Yes, sir.

Q. He feared this.

A. The tape statement. He didn’t appear to fear the

verbal or oral statement.

Q. Did you take notes with which to draft this oral

statement in your notes?

A. No, sir. When Milne and I were on the car outside

-— -

right after leaving I put this on the tape recorder. Later I

listened to my tape recording and wrote it out on my work

pad.

Q. Is that tape still available?

A. No, sir.

Q. Do you recall what time this conversation was

finished or concluded?

A. To the best of my recollection it was about nine fif-

teen when we contacted him in the morning and we left

the County Jail about approximately ten forty, so I would

say approximately ten thirty.

MR. BROGNA: I have no further questions so far.

THE COURT: Mr. Lingeman.

CROSS-EXAMINATION

BY MR. LINGEMAN:

Q. When you learned that Mr. Edwards was [14] reluc-

tant to give you a taped statement, did you take pains to

tell him that the—even though it wasn’t taped, that it

THE COURT: Sustained as leading. Mr. Brogna indi-

cated he was going to object and I agree.

Q. (By Mr. Lingeman) What did you do to make it

clear to Mr. Edwards, if anything, reference what use

could be made of this statement?

A. I told him that the verbal statement would be used

against him and I did this for two reasons.

At the time there was two things going through my

mind.

Q. What were those two things?

A. The first reason was that I wanted to be sure he

understood what was going on, that he voluntarily waived

his right, that he understood it would be used against him.

And the second reason was I knew if he didn’t under-

stand, that it would be inadmissible in court.

Q. Detective Milne was there when this exchange and

conversation and clarification took place?

A. Yes, he was.

[15] MR. LINGEMAN: That’s all I have.

MR. BROGNA: I have nothing further.

THE COURT: You may step down.

(Witness leaves stand.)

MR. BROGNA: I forgot who was putting on the proof.

THE COURT: Mr. Lingeman.

MR. LINGEMAN: Detective Milne. If Sgt. Hallums is

out there, I will take him because I think he will be shor-

ter.

THE COURT: I said Mr. Lingeman was putting on the

proof. We had Mr. Edwards and then my notes show that

we had Detective Marmion and I don’t see that I show you

had finished.

I guess to correct the record you are still proceeding on

the motion.

MR. BROGNA: I would call Detective Hallums if he is

available now.

[16] PAUL HALLUMS,

was thereupon called as a witness in behalf of the

defendant Edwards, and being first duly sworn, was

examined and testified as follows:

THE COURT: The witnesses in this case are under the

Rule. You can’t be in the courtroom at anytime except

when you're testifying. You are not to discuss your tes-

timony with anyone except the attorneys until I have

finished hearing this motion. Thank you.

THE WITNESS: Thank you.

DIRECT EXAMINATION

BY MR. BROGNA:

Q. Would you state your name, please.

A. Paul Hallums.

Q. And your current occupation?

Se"

A. Sergeant, Tucson Police Department.

Q. Calling your attention to last—well, January 19th

of 1976, what division were you working with then?

A. Asa Detective in the Armed Robbery Detail.

Q. On January 19, 1976, did you have occasion to in-

terrogate or attempt to interrogate [17] Mr. Robert Ed-

wards?

A. Yes.

Q. Where did this take place?

A. At the Tucson Police Department.

Q. And how did this take place?

A. He was already there. He had been talking to some

other detectives.

I had a case that I wanted to talk to him about and went

in and talked to him about that case.

Q. Did he see you, did Mr. Edwards see you and come

over and talk to you, Sergeant?

A. No. He was in an office at the Detective Division.

Q. Just how did he get into your office or how did you

get to talk to him, if you remember specifically?

A. He had been brought there by some other detec-

tives and was in custody.

Q. And you saw him and wanted to speak to him. -

A. That’s right.

Q. How did that conversation start? .

A. Ihad a—

Q. Without going into what you were investigating,

how did the conversation start?

[18] A. Iintroduced myself and advised him of my func-

tion and told him I wanted tc talk to him.

Q. All right. Did you ask him if he wanted to talk to

you?

A. No. I told him what I wanted to talk to him about.

Q. And you started asking him questions about armed

robberies?

A. That’s right.

Q. Or an armed robbery.

Did there ever come a time when he told you he didn’t

want to talk any more or didn’t want to talk?

A. No.

Q. How did the conversation terminate?

A. I asked him if he would like to speak to Sgt. Bunt-

ing again. He stated he would and he did and I left.

Q. Without you asking him, did he tell you he

wanted —did he come out and on his own say he wanted to

speak to Bunting again?

A. No.

MR. BROGNA: I have no further questions.

CROSS-EXAMINATION

BY MR. LINGEMAN:

[19] Q. This other robbery case was not the LaConga

robbery.

A. No.

Q. It was something unrelated to this murder case.

A. That’s right.

Q: Did he indicate he wanted an attorney or didn’t

want to talk to you or didn’t wish to talk to anybody?

A. No.

MR. LINGEMAN: That’s all I have.

REDIRECT EXAMINATION

BY MR. BROGNA:

Q. How long did this conversation take place?

A. Between five and ten minutes.

Q. Did it take place in the same room that Sgt. Bunt-

ing was talking with him in?

A. Yes.

Q. Did Sgt. Bunting leave the room while you com-

menced to speak?

A. Yes.

Q. When you left the room, did Sgt. Bunting go back?

A. Yes.

[20} Q. And continue to talk to Mr. Edwards?

A. He went back in the room.

Q. Were there any other detectives down there at the

time talking to Mr. Edwards?

A. Sgt. Steve—excuse me— Detective Steve Bunting.

Q. Was he in with him alone or someone else?

A. When I left he went back in with Sgt. Bunting.

MR. BROGNA: I have no further questions.

THE COURT: You may be excused.

THE WITNESS: Thank you.

(Witness excused.)

MR. BROGNA: Detective Milne, please.

MR. LINGEMAN: May this witness be excused?

THE COURT: I did excuse him.

[21] CHARLES MILNE,

was thereupon called as a witness in behalf of the Defend-

ant Edwards, and having been previously duly sworn, was

examined and testified as follows:

DIRECT EXAMINATION

BY MR. BROGNA:

Would you state your name, please.

Charles Milne.

Your occupation?

Detective, Tucson Police Department.

Were you so employed on January 19, 1976?

Yes.

rPoProred

Q. On that date what particular detail were you work-

ing?

A. Homicide.

Q. Did you have occasion to investigate the LaConga

robbery and homicide?

A. I had occasion to assist in that investigation, yes.

Q. Okay. On January 19, 1976, did you talk to any of

the alleged defendants in the case—well, specifically, did

you talk to Mr. Robert Edwards?

A. It was either on the 19th or the 20th, [22] I’m not

sure which date it was.

Q. Did you ever talk to him at the police station?

A. No, sir, I did not.

Q. Did you ever see anyone talk to him at the police

station?

A. He was with other people, but as far as an inter-

view being conducted of Mr. Barefield, no, I did not.

Q. Who was he with?

A. He was in the same general area of Sgt. Bunting

and Detective Marmion and myself and I believe Detective

Steve Bunting.

When did you talk to Mr. Edwards?

I believe it was the following day.

Where did you talk to him?

At the Pima County Jail.

That would be January 20th, 1976?

Yes.

What time did you speak to him?

I think it was approximately nine fifteen in the

morning

Q. By whom were you dispatched to the Pima County

Jail to speak to Mr. Edwards?

A. I accompanied Detective Marmion.

Q. How is it that you decided to go to [23] the Pima

County Jail and talk to Robert Edwards?

PoPO&PO&P&

A. It was Detective Marmion who apparently wanted

to talk to him about the case under investigation.

I was asked to accompany him and—

Q. By whom?

A. By himself.

Q. You knew that Robert Edwards was interrogated

the day you had seen him down at the station?

A. I had no personal knowledge of that other than

what I was told that somebody had talked to him, yes.

Q. Sgt. Bunting told you, did he not, that he tried to

get a statement from Edwards?

A. I don’t believe he told me anything directly. It was

in conversation that it was overheard.

Q. With other detectives of the Homicide Detail?

A. Yes.

Q. That Mr. Edwards had given some type of a

baloney alibi statement; is that correct?

A. I don’t recall him specifically making that state-

ment.

Q. Well, what—

[24]} A. I don’t recall what the context of the statement

was

Q. What do you remember specifically hearing about

Mr. Edwards’ conversation with the police on the 19th?

‘ A. It would be a basic thing on my part. I assumed he

didn’t want to give a statement at that time.

Q. That’s right. He was holding out.

A. Well, I don’t know if those were the exact words.

MR. LINGEMAN: I object to him asking the witness to

speculate since the witness already testified that he wasn’t

present and didn’t hear what happened that first day.

THE COURT: The present record may stand. Proceed.

Q. (By Mr. Brogna) I don’t know if I asked you what

time did you go the the Pima County Jail.

A. Approximately nine fifteen on the following morn-

ing of J anuary 20th.

ill

Q. Where did you specifically go in the jail, did you

talk to Mr. Edwards?

A. It was in one of the old attorney’s booths.

[25] Q. Is there any reason you went out to the jail in

the morning rather than the afternoon of the 20th?

A. No, other than that was the time Detective Marm-

ion wanted to go out and talk to him.

Q. No particular hurry to see him, say, before initial

appearances?

MR. LINGEMAN: Objection.

THE COURT: Overruled.

THE WITNESS: That—not that I know of. Not to my

knowledge, no.

Q. (By Mr. Brogna) What did you or Detective Marm-

ion, that you saw, take into the attorney’s booth or the

room with you at the jail?

A. To my recollection I don’t think anything was

taken into the booth.

Q. Was there a tape recorder? Let me ask you that,

did somebody have a tape recorder?

A. I can’t swear to it. I would have to look at the re-

ports. If it’s in the reports, that’s how it would refresh my

memory. I just—

Q. All right.

A. —don’t remember.

Q. Let me show you Defendant’s A for identification

and see if you recognize that.

[26] A. This is a supplement that I made dated the 22nd

of January.

Q. Is that supplement relating to the LaConga investi-

gation and the part you took?

A. Yes.

Q. Is that the only report you made?

A. This is the only report, yes, sir.

Q. Is there any mention at all about your accompany-

ing Detective Marmion to the jail for a statement from Mr.

Edwards?

A. No, sir. My involvement with Detective Marmion

concerning Mr. Barefield was documented by a supple-

ment that he made.

Q. Let me ask you then if you can remember, without

a report, do you recall Mr.—as you call him—Barefield

that day having any reluctance, showing any reluctance, to

give a statement to Detective Marmion and yourself?

A. On January 20th?

Q. At the jail, yes.

A. No, sir.

Q. Do you recall the playing of a taped statement of

Boyd Soto or Boy Soto for Mr. Edwards to kind of prime

him?

A. There was a tape played, one from Mr. Williams

that I know, and it’s possible it was [27] played for Mr.

Barefield, but, again, I would have to refresh my memory

by reading the report or glancing at the report.

Q. Do you remember obtaining a statement from Mr.

Edwards that day?

A. Yes.

Q. Do you remember whether it was a taped statement

or just an oral statement?

A. It was an oral statement.

Q. That wasn’t taped?

A. Yes.

Q. Do you remember any discussion of taping the

statement or not taping it?

A. Mr. Barefield was asked if he would supply Detec-

tive Marmion with a taped statement.

He had indicated that he would talk to us, but he did not

want the information documented on tape.

He was advised that being that we were both there we

could both testify to in court anything he did say verbally,

whether it was on tape or not.

And he again reiterated that he would talk to us, but he

didn’t want his voice down on tape.

Q. Did he tell you why he didn’t want it [28] down on

tape?

A. He indicated that he did not want the tape used

against him in court.

As I said, we advised him that any statements he made

to us, whether they were on tape or not, could be used

against him in court.

Q. Is there any reason why two rather than one detec-

tive went to the Pima County Jail to talk to Mr. Edwards?

A. Weil, I wasn’t going to the jail for the purpose of

talking to Mr. Edwards. I was going to the jail for the

purpose of just being a witness to any statements that he

made.

Q. The expressed purpose then at least as far as you

knew of going to the jail that day was to obtain a state-

ment.

A. Was to interview Mr. Barefield with the obvious—

obtaining the statement would be obvious.

MR. BROGNA: I have no further questions.

THE COURT: Mr. Lingeman.

CROSS-EXAMINATION

BY MR. LINGEMAN:

&. You indicated just now that Mr. Edwards [29] did

not want the tape used against him in court. And I think

you indicated that there was some explanation after he

said that. about what could be and what could not be used

in court; is that right?

A. That’s right.

Q. Did you-and Detective Marmion, either one of or

you, or you talking io him separately, make it clear to Mr.

Edwards that anything he said could be used against him

even though it was not put on tape?

A. Yes, sir. Detective Marmion explained that to him

rather thoroughly.

Q. Did he indicate to you and to Detective Marmion

that he understood that, but he still did not want his

words down on tape?

A. Yes, sir.

MR. LINGEMAN: That’s all I have.

THE COURT: Mr. Brogna.

MR. BROGNA: That’s all. Thank you.

THE COURT: You may be excused. Thank you.

(Witness excused.)

MR. BROGNA: May it please the court, I initially put

Mr. Edwards on for one or two questions. I would like to

put him back on and [30] question him on further direct

examination.

THE COURT: You may.

ROBERT EDWARDS,

the defendant herein, was thereupon recalled as a witness

in his own behalf, and having been previously duly sworn,

was examined and testified as follows:

DIRECT EXAMINATION

BY MR. BROGNA:

Q. Do you recall being arrested on January 19, 1976?

A. Yes.

Q. At what time approximately did that take place?

A. Oh, about four thirty.

Q. When, in the morning, afternoon or what?

A. In the evening.

Q. And who arrested you, do you remember’?

A. I think the two Buntings. I think Sgt. Bunting and

his son.

Q. Sgt. Bunting and Steve Bunting?

A. Right.

[31] Q. Where did this take place?

A. On 1022 East Twenty-First Street on the south

side.

Q. And how did the arrest take place?

A. Well, I was with my—I was with my fiancee and

with my kids and a police—the Buntings knocked on my

door. They was looking for my house.

They seen a black Cadillac outside and they was looking

for the house that the black—of the person who owned the

black Cadillac.

So they knocked on my door and they asked me—they

asked me was my name Robert Edwards. I told him yes,

my name was Robert Edwards.

He said, “We have a warrant for your arrest for first

degree murder and armed robbery.”

Q. And then what happened?

A. So I stepped outside and they start—I asked them

what are they talking about.

So one grabbed me on the arm and was trying to jerk

my arm up and slam me against the building.

Then they—I told them to stop [32] hitting me and

slamming me on the back and they had their guns pulled

out.

Then my kids came around and they had their guns

pulled out. So I made it away from the scene so they

couldn’t shoot my kids.

Q. Were you eventually secured or arrested?

A. Right.

Q. Were you put in a police car?

A. Yes, sir.

Did they attempt to talk to you right outside your

place there?

A. No, they didn’t.

Q. At any time did Sgt. Bunting or Steve Sites the

other detective, read you your Miranda rights?

A. No. It was a detective—it was a black policeman in

a car. I don’t know his name.

He just handcuffed me and put a gun in my head and put

me in the car.

Q. Where did they take you?

A. To the precinct.

Q. Where did they take you in the police station?

A. Upstairs somewhere. I don’t know where. I was on

a high floor.

Q. Did they talk to you up there?

[33] A. Yes.

Q. Who talked to you?

A. Iremember it was Sgt. Bunting.

Q. Prior to talking to you, did he read you your

Miranda rights somewhere along the line?

A. He—oh, yes. He said, “You have a right to be—

remain silent and anything you say can be used against

you in a court of law.”

Did you understand what he read to you?

Yes. Yes, I did.

Okay. Did you proceed at that time to talk to him?

I told him that I didn’t have nothing to say to him.

Then what happened?

Then I—I told him I wanted a lawyer.

When did you tell him you wanted a lawyer?

When I was in there and he asked me about a mur-

der. He had a confession from Calvin Reed and he had a

confession from Soto and he wanted me to talk.

I told him, “I don’t know what you're talking about.” I

said, “Well, I need a lawyer.”

He said, “All we want is your side [34] of the story.”

I said, “I don’t have nothing to hide and I’ll tell you my

side of the story.”

Q. You gave him a statement.

A. Yes, I did.

Q. Was that statement recorded?

A. Yes, it was.

ere re re

Q. How long did that all take, if you know?

A. I think it was about a hour forty-five minutes or a

hour.

Q. Do you remember who was present when that

statement was taken?

A. It was Bunting.

Q. Who, Sergeant or the other one?

A. The sergeant. I remember him. But it was fade (sic)

in my mind about the other Bunting. There was so many

police coming back and forth questioning, I don’t re-

member.

Q. You mean there was more than Bunting?

A. Right. There was another came in. It might have

been his son. And another came in. It was back and forth.

I don’t really remember it’s been so long.

Q. What happened after you gave the taped state-

ment?

A. Well, he asked me, he said, “Is this [35] your side of

the story?”

I said, “Yeah, this is my side of the story.”

He said, well, he know—he said that he know that Soto

confess, you know. Calvin Reed confessed.

And he said he was going to catch Willie Williams and

Willie Williams was going to confess.

Who told you this?

Bunting.

Sgt. Bunting?

Right.

He wasn’t satisfied with your statement?

No. He said that—that he knew that I was lying,

know.

rPOoPrO& Pe &

> ©

Q. And anytime—what happened after that, after you

gave the statement and he told you that he wasn’t satis-

fied?

A. I told him that I really didn’t have nothing to say, I

wasn’t involved in nothing. I didn’t really have nothing to

say to him.

But that didn’t stop him. I say—I asked him about a

attorney. He said, “You [36] want to call a attorney?”

I said, “Yes, I want to call a attorney.”

He said, “I have a attorney you want to call.”

Then he rang the number for the attorney and I looked

at it and it was the district attorney and—

Q. Did you end up talking to a district attorney that

night?

A. Right.

Q. Do you know who?

A. I don’t know who it was. Just at the other end of

the line it was a district attorney.

Q. Was that Randy Stevens?

A. I don’t know. I found out later on it was Randy

Stevens.

Q. What did you talk to the district attorney about?

A. He called and I said, “Who is this?”

He said, “This is the district attorney.”

I said, “I don’t have nothing to say to you,” and I hung

up. It was about three or four seconds.

Q. Was there talk about a deal?

[37] A. Idon’t remember no deal. The deal Bunting was

asking me about, a deal—

Q. That’s what I’m getting at.

Q. That’s right.

Q. What do you remember was the talk about the deal

no matter who said it?

A. The deal was the confession.

Q. They wanted a confession from you?

A. Right.

Q. What were you supposed to get?

A. I was supposed to get a deal to make any sentence

more low and testify.

Q. Did you talk—did Sgt. Bunting talk to you about

that?

A. Right.

Q. And what happened, was a deal—did you strike a

deal, did you make a deal.

A. I didn’t want to make no deal. I said, you know,

well, I had to talk to my lawyer. I wanted a attorney.

Q. Did you specifically ask for a lawyer before you

made a deal?

A. That’s right. I asked for a attorney.

Q. Do you remember talking to this other officer, De-

tective Hallums?

A. Yes, I did.

[38] Q. Now, he’s a police sergeant.

A. Yes, I did.

Q. Did you ask to speak to him?

A. No, I didn’t.

Q. How did it happen that you ended up talking to him

that day?

A. I was sitting in a room. No, I was coming—they

had arrested me.

I see “Oh, say, oh, there go Barefield,” when I was in

the police station. He says, “There go Barefield.”

I said, “Yeah.”

They brought me in and my clothes was all dirty. They

put me in a room and then started ‘gating me’ and after

that Bunting went out and Hallums came in and set down

and he asked me about a robbery.

Q. Did you ask Hallums to come in and talk to you?

A. No, I didn’t.

Q. Did he read your rights to you?

A. He didn’t read nothing to me. He just started talk-

ing to me with a robbery.

Q. Did you talk to Hallums?

A. I told him I wasn’t involved in no robbery. That’s

about all I told him.

[39] He says a couple of questions that he wanted to

know about some robberies and I said I wasn’t involved in

no robberies.

Q. Do you remember what he said when he left?

A. He just got up and said—maybe I’m not—I just told

him I wasn’t involved in none.

He got up and went out the door. That’s all he did.

Then what happened?

Then Sgt. Bunting came back in.

What did he want this time?

He wanted a confession.

How do you know?

The way he was talking, you know, about Reed was

going to testify and this and that.

_ Q. So he is—he kept on throwing up these other

statements to you.

A. Right.

Q. Did there come a time when he stopped talking?

A. Yes. He seen that I wasn’t going to confess, make,

you know, he seen that I wasn’t going to confess.

Q. Tell me what happened.

A. I remember that it happened, he kept on [40] ask-

ing me about the Conga Bar.

He set and he drew some construction route. He put it

on his desk and I told him I didn’t know about no construc-

tions and he draw a—

Q. You mean a diagram?

A. Diagram.

Q. Of the bar?

A. Diagram. Right.

He drew a diagram of the place and about Tenth Av-

enue, whatever it happened.

‘PO>rOore

Q. When was he doing this?

A. Oh, after—after I had gave him my statement then

he started a drawing diagrams.

Q. Was this after Hallums talked to you?

A. Right.

Q. How long were you down there at the police station

all together, if you recall?

A. Id say I got there at four thirty and I didn’t leave

until real late at night. I think I got in jail about twelve or

one at night. I don’t know. Real late.

Q. Were they tallking to you most of the time?

A. When they took me—when they took me out—when

they took me out to go to what’s [41] its name, I heard one

of them say, “Put him in solitary.”

I went in and I was sent to solitary. I was put in with

a-—

Q. Wait a minute. Who did you hear say put him in

solitary?

A. One of the police that took me down there. I don’t

remember who it was.

Q. Was it one of the detectives who had been inter-

rogating you?

A. That’s right. I don’t remember who it was.

Q. Where were you put when you went to the Pima

County Jail?

A. I was put in solitary. Confined.

Q. Were you given any reason?

A. No.

Q. By either the detectives or the jail personnel why

you were put in solitary?

No. No. No, I couldn’t get no reasons.

Were you given any?

No. No reason. They just put me in solitary.

When you say solitary, you mean a room with a—

A hole with slats in it.

re rer

[42] Q. Were you in solitary with anyone?

A. Yes, I was in solitary with a brother. I think his

name was Al J. Carter.

Q. You mean another black man?

A. Right. A black dude.

Q. Do you recall what happened, the next thing you

remember, the next time you talked to anybody?

A. Well, I stayed in solitary until about nine thirty,

nine fifteen. We supposed to have went to arraignment

and that’s when Marmion and I forget another one just got

up on the stand come out there.

Q. And where were you taken?

A. I refused to come out of the hole.

Q. What do you mean?

A. I refused. I told them I didn’t want to talk to no-

body.

But I was trying to remember the D.O., but he told me I

had to talk to him.

Q. Did they take you out of the cell?

A. Solitary.

Q. Yes.

A. Yeah, to go talk to Marmion and his partner.

Q. Where did you talk with Marmion and his [43] part-

ner?

A. Over at the attorney booth.

Q. One of the attorney booths?

A. (Witness nods head.)

Q. Did they have anything with them?

A. They had a tape recorder—they had a tape recorder

and they had another tape. They had some tapes.

Q. All right. Do you recall the conversation started

when you first saw Marmion and this other detective, the

best that you can remember it?

A. Well, first, I came in the door and Marmion was

sitting over here and the detective Hallums was standing

right at the side.

I came in the door and—

Q. Hallums or Milne?

A. The one that just testified.

Q. Detective Milne.

A. Milne, right.

Milne closed the door and he said—he said, “Mr. Ed-

wards, I’m from the Homicide—I’m from the Homicide

Detective,” something like that.

He said, “I’m here on behalf of—to investigate a mur-

_ der.”

[44] Q. All right. What did you do, did you say, if any-

thing?

A. Itold him, I said, I—I told him that I didn’t want to

talk to him.

Q. Then what happened?

A. Then he said, he said, “Now,” he said, “we”’—he

say, “Now”—he asked me—he had a tape recorder and he

said—he said, “Now, I have just arrested Soto. Don’t play

no games with me. I know what Soto talk about.”

I say, “I don’t even know Soto.”

He said, “Yes, you know Soto. Do you want to hear

Soto?”

And I say, “Yeah.” And he turned the tape recorder on.

Q. Did you hear Soto?

A. Right.

Q. Then what happened?

A. He played the Soto tape nine or ten minutes and

then he cut it off.

Q. Then what happened?

A. Then he said—he said they had—he told me they

had caught Willie Williams, right.

Q. Okay. What happened?

A. And then he told me, he said it was a [45] little

thing about going—he said—he told me—he said, “I see

that you have—you have already—you have already given

the D.A.”—I mean not the D.A., but “the detectives a jive

statement.”

He said, “Now, you going to play ball with me?”

I said, “Well, I don’t know what you're talking about.”

He said, “Well, this can help you. I can talk to the D.A.

and give you a break, you know.”

I said, “Well, what kind of a break?”

He said, “Well, I can talk to the D.A. and give you a

break.”

I said, “Man, I wasn’t involved in nothing.”

He says—he says, “You know—you know how the ball is

played. You are a old pro at this game.”

Q. Did you eventually give them a statement, talk to

them?

A. Right.

THE COURT: Who said this?

MR. BROGNA: Marmion.

[46] THE WITNESS: Marmion.

Q. (By Mr. Brogna) Was there any talk about taping?

A. Right.

Q. Do you recall what that talk was about?

A. I just told him that I didn’t want nothing, you

know, used against me in the court. I didn’t know too

much about law, but I just told him I didn’t want nothing

used against me in a court of law.

I really didn’t understand, but that’s what I told him.

Q. Do you remember talking about taping a statement?

A. Of who?

Q. You.

A. Oh, yes. They said they wanted me to make a taped

statement.

Q. Then what happened, what did you do?

A. I told him I didn’t want to make no taped statement

because it would be used against me in a court of law.

Q. Do you recall them saying, “If you talk to us, or

don’t make a taped statement, we are still going to shove

it down your throat”?

[47] A. No, sir, they never said that.

Q. You went ahead and talked to them?

A. Yes, I talked to him.

Q. On Friday do you recall saying you didn’t give a

statement to them?

A. I—on Friday I said I didn’t give a statement. The

D.A. was talking too fast. I was confused.

Q. Did you give a second statement about the LaConga

or didn’t you?

A. Yes, I did.

Q. You requested that Sergeant Bunting send some-

body out to the jail—

A. No, I didn’t.

Q. —to see you and talk to you further?

A. No.

Q. Did you request that somebody pull you out of soli-

tary confinement?

No. I refused to come.

But you went.

They told me I had to come.

Who told you?

A D.O., you know.

A detention officer?

Right.

Do you remember his name?

[48] A. Ihave been trying to remember his name, but I

can’t. It’s been a long time. I’m vague.

Q. When did you go to court that day?

A. I went to court that afternoon about one o’clock.

Cre rere.

Q. How long after they were out and talked to you?

A. Before I went to court? |

Q. Yes.

A. I think—

In other words, when they were finished talking to

you how long was it before they finally took you down to

court?

A. Oh, after they talked to me about a hour, two

hours. I was took to court in the afternoon. I was tooken

to the same arraignment that Williams was tooken to in

the afternoon.

MR. BROGNA:: I have no other questions.

THE COURT: Mr. Lingeman.

CROSS-EXAMINATION

BY MR. LINGEMAN:

Q. Mr. Edwards, you’re a pretty strong fellow.

A. I’m what?

[49] Q. You're a pretty strong fellow, a pretty tough

guy.

A. I’m not too tough.

Q. Would it be fair to say that it took three officers to

arrest you?

A. Hum?

Q. Would it be fair to say that it took three police offi-

cers to arrest you?

No. It just took one.

Just one?

Right.

How many was there?

Bunting and Stevens and a brother, a black officer.

You ran away from the first two, right?

Right.

>O>Oo>o>

ben.

Q. And the brother, the black officer tackled you,

caught you.

A. Right. Right.

Q. Then the other two officers caught up.

A. Right.

Q. And then there was a fight between all four of you.

A. No.

Q. No?

A. No.

{50} Q. You just said you got three.

A. That’s right. They picked me up and handcuffed me

and put a gun to my head and put me in the car.

Q. When you were at the police station nobody told

you, but you picked up the phone and it was an attorney.

A. Yes, it was the D.A.

Q. When did you learn that it wasn’t the attorney you

thought it was?

A. When the man at the other end of the phone said it

was a district attorney.

Q. Do you recall that conversation pretty clear) y?

A. No, I don’t.

Q. Can you tell me, to the best of your recollection,

what you remember that man on the other end of the

phone saying?

He told me he was the district attorney and I said I

want a attorney.

POoPOP& Po

He said, “I’m a district attorney”?

That’s right.

What else did he say?

It was a few seconds. It wasn’t really no—

Did he try to get you to make a state-[51}ment?

No. No, he didn’t.

What did he say?

He just said he was a district attorney.

Q. Last Friday I asked you three or four times if you

gave a statement to Detective Marmion and Detective

Milne on the day following your arrest and didn’t you tell

this court under oath that you never gave them a state-

ment implicating yourself?

A. Inever gave them a first time.

Q. Do you remember last Friday my asking you sev-

eral times when you were under oath whether or not you

had given detective Milne and Detective Marmion a

statement about your involvement in the LaConga Bar

robbery?

A. Like I told you, I didn’t understand you. You was

talking so fast.

Q. You didn’t understand any of the three or four

questions I asked you?

A. No.

Q. Isn’t it a fact that you decided afterwards that you

better tell the truth in this court and—

A. I’m telling the truth all the time.

THE COURT: Just a minute, now. Mr. [52! Edwards,

don’t interrupt the question and, Mr. Lingeman, let him

finish his answers. Start over.

Q. (By Mr. Lingeman) You were lying last Friday,

were you now?

, A. No, I wasn’t.

Q. Did you talk to—with your attorney afterwards?

A. No. My attorney—

Q. Excuse me.

THE COURT: Just a minute. We can only get one at a

time.

THE WITNESS: I’m sorry.

Q. (By Mr. Lingeman) That it hurt your case for you to

make up a story like that and you’d better tell the truth.

Did your attorney say something like that to you after the

hearing on Friday?

A. No, he didn’t.

Q. You just decided to come in here and decided to tell

the truth, that you did in fact give a statement?

A. I just told the truth.

Q. Is it the truth that you asked for a lawyer with Offi-

cer Hallums, you asked for a lawyer when he talked to

you?

A. I don’t know who Hallums is.

[53] Q. The uniformed officer that came in and testified

a few minutes ago.

A. He didn’t give me time to ask. He wasn’t in there

for a couple of seconds.

Q. Did you ask Sgt. Bunting, the man involved in your

arrest, did you ask him for an attorney, also, is that your

testimony?

A. Yes, I did.

Q. Did you ask Detective Marmion and Detective

Milne for an attorney, also, when you talked to them the

next—

A. I didn’t ask to see them.

Q. I know, but when you saw them did you ask for an

attorney?

A. They knew I wanted a attorney.

Q. But you didn’t ask for one.

A. I didn’t think you had to keep asking for a attorney

over and over and over.

Q. How many overs and over and overs and over did

you ask for an attorney?

A. I asked for a attorney about four times.

Q. How many police officers did you indicate this to?

A. There was so many coming in I don’t remember.

[54] Q. Was Detective Hallums one of them?

A. Holmes? I don’t understand.

Q. The man with the uniform today, the sergeant.

A. He wasn’t in there but a couple of seconds. He

asked me about a robbery and I told him I didn’t know

anything about it and he didn’t hassle

Q. Was Detective Sergeant Bunting one of them?

A. Yes.

Q. How about Detective Marmion, was he one of the

ones you asked?

A. I thought he knew I needed an attorney.

Q. How about Detective Milne?

A. I don’t know.

Q. You said you asked at least four different times.

Can you give me a better explanation of who these

people were you kept asking for an attorney?

A. I asked Sgt. Bunting for a attorney, to be repre-

sented by a attorney.

I asked numerous times, but they kept on coming in

and—but, like I said before, I couldn’t tell you bocause it’s

vague in [55] mind because there was so many police com-

ing in.

Q. Do you remember Detective Marmion and Detec-

tive Milne explaining to you that if you talked to them

whatever you said they could testify to it in a court; do you

remember that?

A. No. They never told me. If I knew this, I wouldn’t

be up on the stand now.

Q. Did you hear Detective Marmion testify here in

court?

A. Oh, yes. I heard him.

Q. Did you hear Detective Milne also testify to that

here in court?

A. Yes, I heard that.

Q. And that wasn’t correct?

A. No, that wasn’t correct.

Q. You stated you were booked into the Pima County

Jail about one o’clock.

A. About that.

Q. Wouldn’t it be fair to say you were booked into the

Pima County Jail about seven o’clock, about three hours

after you were arrested?

A. It was real—it was real late. It was like nine

o'clock.

Q. Why don’t you think about it for a while and tell me

if you think it was closer to [56] seven o’clock rather than

midnight.

A. It was real late. I don’t remember. Real late.

Q. There are records that reflect the time. Can you

give me your best estimate?

A. Ill say, like I said before, it was eight or nine or 12

o'clock, but it was—

Q. Wait a minute. Wait a minute. Was it around eight

o’clock or—

THE COURT: Just a minute. The attorney is asking a

question and then you wait and you answer. Then the at-

torney has to start over again with a question.

Mr. Lingeman.

Q. (By Mr. Lingeman) Could you give me your best

idea of what time it was that you were booked into the

County Jail, six o’clock, seven o’clock, eight or later?

A. As I said, I can’t approximately remember. All I

can say it was very late. To me it was about eleven or

twelve, twelve o’clock.

MR. LINGEMAN: Okay. I have no further questions.

THE COURT: You may step down.

MR. BROGNA: I have no further questions.

[57] THE COURT: Defendant Edwards rests on the Mo-

tion to Suppress except for argument, of course.

Mr. Lingeman.

MR. LINGEMAN: Detective Marmion very briefly.

VICTOR Z. MARMION,

was thereupon called as a witness in behalf of the State,

and having been previously duly sworn, was examined and

testified as follows:

THE COURT: Proceed.

DIRECT EXAMINATION

BY MR. LINGEMAN:

Q. Do you know approximately what time it was that

Mr. Edwards was booked into the Pima County Jail?

A. Approximately 7:00 p.m.

MR. LINGEMAN: Okay. That’s all.

MR. BROGNA: I didn’t have a chance to object.

THE COURT: You may object and your [58] objection

may precede the answer.

MR. BROGNA: I didn’t get a chance. I’m going to ask

that that be stricken and if he is going to show the time,

then he bring in the records the proper way.

I ask that that answer be stricken.

MR. LINGEMAN: All it means is that I’m going to have

to wait until tomorrow when Detective Steve Bunting is

here.

THE COURT: I don’t think the objection is good if De-

tective Marmion was there. But right now it looks like

foundation.

MR. LINGEMAN: He wasn’t there.

THE COURT: Sustained. But I’ll give you time to pro-

duce the records.

MR. BROGNA: I would like to talk to Steve Bunting.

MR. LINGEMAN: That’s it then.

THE COURT: Sustained. And the answer is stricken.

MR. LINGEMAN: That’s all I have right now.

THE COURT: Mr. Brogna, you can’t have anything, I

guess.

You may step down.

(Witness leaves the stand.)

[59] THE COURT: Do you have other witnesses?

MR. LINGEMAN: Not now, Detective Bunting is not in

town, Steve Bunting.

THE COURT: Steve Bunting?

MR. LINGEMAN: Is not in town. That’s why he wasn’t

called last week or today. I didn’t think we were going to

need to call him.

I talked to Carmine before and he didn’t think there was

a need to call him.

THE COURT: Do you want this hearing continued to

produce records?

MR. LINGEMAN: I guess so. Detective Bunting won’t

be back this afternoon. He is out of town. He has been out

of town.

THE COURT: Do you want until tomorrow morning?

MR. LINGEMAN: Yes.

THE COURT: Mr. Brogna.

MR. BROGNA: That’s fine, Your Honor.

THE COURT: All right. I have to get my calendar.

MR. LINGEMAN: I might say it won’t take me very

long. A minute or two.

Your Honor, I may be able to get Sergeant Bunting who

may be able to answer this [60] question right now.

THE COURT: All I need to know is whether you want

to do it now or then.

We stand at recess for ten minutes.

MR. LINGEMAN: Thank you.

THE COURT: We'll continue with the Edwards motion

unless you’re not ready.

If you’re not ready, we’ll continue with the Williams Mo-

tion except Mr. Noe isn’t here.

MR. LINGEMAN: I’m ready with Sergeant Bunting on

the Edwards motion.

THE COURT: All right.

[61] LARRY BUNTING,

was thereupon called as a witness in behalf of the State,

and having been previously duly sworn, was examined and

testified as follows:

THE COURT: Good afternoon.

THE WITNESS: Good afternoon.

DIRECT EXAMINATION

BY MR. LINGEMAN:

Q. Please state your name and occupation.

A. Larry Bunting, Police Sergeant, City of Tucson.

Q. You are the same Larry Bunting that testified ear-

lier in this motion?

THE COURT: The record may so show.

Q. (By Mr. Lingeman) Sergeant Bunting, when you

arrested Mr. Edwards, could you explain the physical cir-

cumstances surrounding that arrest very briefly?

A. Well, there was a—he resisted arrest and a strug-

gle ensued and eventually he was subdued and taken to

the station.

Q. Between Mr. Edwards and yourself and who else?

A. Detective Steve Bunting and a uniform [62] officer.

Were all three of you police officers engaged in trying to

make the arrest on Mr. Edwards?

A. Yes, sir.

Q. Did you have some difficulty doing that, even all to-

gether the three of you?

A. Yes, sir.

Q. About what time—I guess it was about four o’clock,

is that right, when the arrest was made?

A. That is correct.

Q. About what time was it that the interviews with

Mr. Edwards were completed that afternoon or evening,

the total interviews?

A. In the neighborhood of six thirty to seven, I would

guess.

Q. And at that time was Mr. Edwards taken to the

County Jail?

A. Yes.

MR. LINGEMAN: That’s all I have.

THE COURT: You may cross-examine.

CROSS-EXAMINATION

BY MR. BROGNA:

Q. During the time from his arrest and [63] the time he

spent in the police station, during most of that time was

there someone talking to Mr. Edwards?

A. Yes.

MR. BROGNA: I have no further questions.

MR. LINGEMAN: Nothing, Your Honor.

THE COURT: You may be excused.

(Witness excused.)

MR. LINGEMAN: That’s all I have.

THE COURT: Mr. Brogna?

MR. BROGNA: I have nothing further.

THE COURT: Mr. Brogna, do you want to argue the

motion?

MR. BROGNA: Very briefly, Your Honor.

In addition to the cases that are cited in Mr. Polis’ mem-

orandum, I would call the Court’s attention, first of all, to

the one case cited in particular in the Polis memorandum,

State v Saube, 112 Ariz., 576.

THE COURT: Mr. Bailiff, will you get 112 Arizona for

me?

MR. BROGNA: I think the case is appropriate because

in that particular case the detective did attempt to elicit a

statement at one time and the statement was not pro-

cured.

(CAPTION OMITTED)

PROCEEDINGS MARCH 8, 11, 14, 16, 1977

A-30683

[37] That is not the situation in this case. The Court finds

that there was no request from these officers that the De-

fendant Williams be furnished with any methadone or any

other drugs, that they did not make any promises to him

that he would receive any drugs in response or after mak-

ing his statement.

The Court finds that the Defendant Williams’ statement

was voluntary and the State may use it in the presentation

of their case.

The Defendant Edwards’ Motion to Suppress, it is or-

dered that the motion is granted.

The Court wants to fully explain the reason on that for

the record and further to show on the record that even

though the Court is prohibiting the State from using it in

their case, that the Court finds the statement was volun-

tary except for the violation of Miranda which the Court is

going to go into, and that the State may use the statement

for cross-examination in the event the Defendant Edwards

takes the stand. They may use the statement in rebuttal

should it become otherwise material and proper rebuttal.

Now, the Court again is basing this ruling on the offi-

cers’ testimony which the [38] Court finds to be the credi-

ble evidence before the Court on that particular motion,

not Mr. Edwards’ testimony.

The officer’s testimony, Sergeant Bunting, is that Mr.

Edwards was questioned at the police station following his

arrest and before he was ever taken to jail. That at that

time Mr. Edwards gave a tape-recorded statement which

has been referred to in his case as the alibi statement.

That the officers did not believe that statement.

That after that there was a discussion initiated by Mr.

Edwards concerning a deal. That there was further con-

versation between Mr. Edwards and the officers which

was concluded by Mr. Edwards saying, in effect, that he

would wait until he got his attorney before he made any

deal.

The Court believes and finds that the deal so far as Mr.

Edwards’ state of mind and concept of it is concerned,

involved him making a statement, presumably a true

statement, in view of the fact that he had already made

the other one, in exchange for some leniency, some lesser

conditions or something of that nature.

Under Miranda I think that this is, and under the Sixth

Amendment, at least an [39] indication in some way, to use

the words of Miranda, that Mr. Edwards intended to have

an attorney and intended not to make any statement until

he was represented by counsel.

Following that, and I note also at that point the ques-

tioning stopped, and I believe that the questioning would

not have stopped and Sergeant Bunting would not have

stopped questioning Mr. Edwards had he not believed that

at that point there had been such a request made.

Then the next day officer Marmion goes to the jail on

the morning of the day that Defendant Edwards would

have gone to his initial appearance and gotten an attorney,

which the detective knew.

Detective Marmion goes to the jail on his own. There is

no evidence to the contrary, and questions the defendant.

I don’t think there was anything wrong, any compulsion,

anything of that kind on the Defendant Edwards by Detec-

tive Marmion. There is no evidence of it that the Court

believes, but, nevertheless, the right which Mr. Edwards

had exercised the day before with Officer Bunting had

been ignored and it doesn’t matter whether [40] Detective

Marmion knew it or not, it was contrary to Miranda.

That’s contrary to what Miranda says.

Now, I have studied the Arizona cases in this record as

thoroughly as I know how. I think that the case is in point

with the Saube case. That involves the defendant assert-

ing his right to remain silent.

I think this case involves the defendant asserting his

right to have an attorney before he made any statement,

but the two are common rights under the Miranda, one

under the Fifth and one under the Sixth Amendment. I

think Saube is controlling on this Court.

I have also studied the Edwards case. I don’t think it

lends a great deal to this case. This is not the Edwards

case. It is not a case of the detectives continuing to hound

the defendant and things of that nature. It is not an ex-

treme case at all. Edwards was a most extreme case.

I have also studied State v Burger, 105 Ariz., 553, and

which overrules State vs. Herman. That’s the case in

which the Supreme Court said that a statement can be

voluntary and used by the State even though the defend-

ant is [41] represented by an attorney.

In that particular case the statement was given at the

County Jail to the officers even though the defendant had

an attorney representing him in the case in court.

But in that case it was the defendant who requested that

the officers come to the jail and talk to him. That is not

this case.

I think if you had that one additional fact in this case

that the Court’s ruling would be different. But this is a

case of the officers going to the jail after Mr. Edwards had

at least in some way indicated that he intended to have an

attorney in this case before he made any statement.

That will be the Court’s ruling on that matter.

Now, I want to ask counsel a question. I want to ask you

if in view of the Court’s rulings anyone believes that the

matter of severance as to the two defendants should be

reopened. Mr. Lingeman.

Mr. Lingeman: May we approach the bench on this with

counsel—I don’t know if counsel are still representing—

THE COURT: I don’t know who I meant

[55] Tucson, Arizona

March 14, 1977

Monday, 11:45 a.m.

THE COURT: Case No. A-30683, State vs. Robert

Edwards.

The Court set this as the time for hearing the defend-

ant’s own Motion for a Redetermination of Competency

and after my ruling last Friday Mr. Lingeman came in and

told me that he had filed this Motion for Reconsideration

of the Order Granting the Motion to Suppress, Confession.

I told Mr. Lingeman I would hear it this morning. I

thought I should.

Are you prepared to respond to that, Mr. Brogna?

MR. BROGNA: Yes, Your Honor, I have been provided

a copy.

THE COURT: [ll hear from Mr. Lingeman, if you want

to add anything to your written motion.

MR. LINGEMAN: Your Honor, the motion just indi-

cates, of course, as Mr. Brogna has seen, that I found a

case that deals specifically with that which the Court felt

there was a problem.

I say that because the Court indicated specifically the

reasons for its ruling when it granted the Motion to Sup-

press, the reason [64] were properly before it.

So for the reasons that I have indicated, and for the ap-

parent specificity of this decision, I would urge the Court

to reverse its earlier ruling.

THE COURT: Well, I’m going to reconsider the matter

and change the ruling.

I think that I was wrong, based on the law that I’m

bound to follow.

Travis was decided by the Court of Appeals January

27th, 1976, and Saube January 29th, 1976 by the Arizona

Supreme Court.

But in the Travis rehearing our Court of Appeals was

denied March 4th, 1976, and:the Supreme Court denied

review March 23rd, 1976, all coming after the decision in

Saube.

I think Travis is exactly in point even down to the same

officer, as exactly in point as you could get two cases with

this kind of a situation.

The Court was not aware—I want the record to show I

remembered Travis once it was handed to me, but I didn’t

recall it at the time I made this ruling. It wasn’t annotated

in the plucze I was looking and I just was not aware of it. I

think it’s controlling on the [65] Court. I think I have to

follow it.

I had, of course, studied Mosley extensively before

making that ruling on Friday and I had thought that Mos-

ley, the controlling thing in Mosley was that the second

officer had talked to him about a different crime. I thought

that was an exception that the Supreme Court had grafted

on Miranda, but Judge Howard at the Court of Appeals,

with the Supreme Court denying review, has stated that

Mosley means a great deal more than that and I’m going to

change the ruling and the defendant’s Motion to Suppress

is denied as to all the statements and the Court finds the

statements to be voluntary.

Now, I'll hear this matter about competency, Mr. Ed-

wards.

MR. EDWARDS: Your Honor, I have not prepared the

motion to competency. I haven’t had time to study the

hearing and study the motion.

You gave a order to give time, but we have not had time

to study for trial. I haven’t even had time to study the

material for rehearing.

I had a witness doctor and he’s not here and I have just

not had the time.

You gave a order or something for the sheriff for us to

have time to review the

(CAPTION OMITTED)

PROCEEDINGS MARCH 21, 1977

A-30683

[2-58] Q. Milne?

A. Yes.

Q. Detective Mr. Milne, that was on the date of the

20th you say.

A. The 20th of January, yes.

Q. About nine thirty in the morning?

A. Roughly, yes.

Q. How could—how did you come out to the jail, did

anybody tell you to come, did your—your lieutenant or I

know they have a top person there, ask you to come and

interview me?

A. My supervisor instructed me to accompany Detec-

tive Marmion, yes.

Q. Who was your supervisor that asked you to come

and interview me?

A. Sgt. Bunting.

Q. So Sgt. Butning asked you to come to interview me

to make a confession, am I correct?

MR. LINGEMAN: Objection. That’s not what the wit-

ness testified to.

THE COURT: You may answer. Overruled.

THE WITNESS: Iwas instructed by Sgt. Bunting to ac-

company Detective Marmion to the Pima County Jail

where you were located at the time and conduct an inter-

view.

Q. (By Mr. Edwards) Did Sgt. Bunting tell (2-59) you

that he had already interviewed me?

A. No, sir, he did not”

Q. You came out there the morning about nine thirty

and you were with Detective Marmion.

A. Yes.

Q. When—do you remember where I was? I mean,

where you was to the interview, where you hold the inter-

view that morning?

A. Yes. It was in one of the attorneys’ booths.

Q. Mr.—before you interview me, I didn’t have a at-

torney then, did I, when you come to interview me?

A. I don’t know if you had one at that point or not.

Q. You know how I think, Mr.—Mr. Milne, you have

been in homicide—how long have you been in homicide?

A. I was in homicide approximately 13 months.

Q. Thirteen months. So I think you know how the

Court procedures go.

A. Somewhat.

Q. When you came down that morning, I was arrested

January 19th, I think you recall that.

A. Yes.

Q. And I was brought to jail that night and [2-60] that

morning I was supposed to have went to arraignment; is

that correct?

A. It would be the following afternoon.

Q. I never went to arraignment while you was sup-

posed to come down and interview me, am I correct?

A. You had not been to any type of a court arraign-

ment prior to the time we talked to you.

Q. Mr. Milne, is arraignment where attorneys is ap-

pointed?

A. In some cases, yes.

Q. So I never had a attorney, am I correct, when you

investigated—interrogated me.

A. I don’t know, Mr. Edwards. It would be very possi-

ble for you to have a private attorney.

Q. So you're telling the Court that Sgt. Bunting asked

you to come see me on that morning.

A. Sgt. Bunting instructed me to accompany Detective

Marmion. é

Q. Mr. Milne, on that—on that—when we can come

down to recall that when you was in the little—the little

law booth or attorneys’ booth or what we can refer to—the

D.O., did you send a D.O. to come get me?

A. A detention officer?

Q. Right.

(CAPTION OMITTED)

PROCEEDINGS MARCH 28, 1977

A-30683

[9] THE COURT: Good Morning, Mr. Edwards, you may

proceed.

MR. EDWARDS: My next witness is Larry Bunting.

LARRY BUNTING,

was thereupon recalled as a witness in behalf of the de-

fendant and, having been previously duly sworn, was

examined and testified as follows:

THE COURT: Detective Bunting was sworn earlier in

this trial and is being recalled and is, of course, still under

oath.

You may proceed, Mr. Edwards.

DIRECT EXAMINATION

BY MR. EDWARDS:

Q. Mr. Larry Bunting, am I correct, is that your

name?

| a ¢

Q. Did you give testimony to the Court that I—on the

day of January 19th, 1976, the day you arrest me and took

me to jail, didn’t you give testimony that you never sent

Milne over [10] to see me the next day?

A. That is correct.

Q. Can you occur that when Milne testified that he tes-

tified and said that you sent him that day?

A. ‘Would you repeat that again, please.

Q. Ill repeat it and make it more clearly for you.

Mr. Milne testified and said that Larry Bunting—Larry

Bunting, is that you?

A. That’s me.

Q. Sent him on the next day, the 20th day, that you

gave orders for him to go see me on the 20th.

A. I didn’t tell him to go see you. I never told anybody

to go see you.

I may have put two officers arriving together as I do

occasionally, like assigning Milne to ride with Marmion,

but I have never assigned Marmion to go see you or Milne

to go see you.

Q. So we can indicate that Milne, he didn’t—he

just—he must have forgot that that you sent him or you

didn’t send him, am I correct?

A. I’m not sure what he testified to. I can only testify

to my recollection.

{11} Q. Your recollection.

On October 9th, 1974, Mr. Bunting, was you ever—did

you ever approach the crime—the crime that was

recently—did you ever investigate the crime when it was

over, the crime of the death of Mr. Mungia, the robbery,

was you on that investigation?

A. Yes, I was involved in the investigation of Mr.

Mungia’s death.

Q. Was you involved in the investigation on October

9th of 1974?

A. I believe that’s the date it occurred. Yes, I was.

Q. Mister, did you ever find any articles or things in

the investigation; did you ever find any fingerprints, did

you ever find any—anything, guns, anything occurring to

the crime?

A. I myself did not.

Q. Did you know about anyone finding any guns inside

the place or anything, for instance, anything to identify

the suspects?

A. To the best of my recollection, as I have not re-

viewed the reports to refresh my memory, I don’t recall

anything about guns, fingerprints being found.

There were fingerprints found. As

100

(CAPTION OMITTED)

PROCEEDINGS APRIL 21, 1977

A-30683

[61] LARRY BUNTING,

being first duly sworn, was examined and testified as fol-

lows:

THE COURT: The witnesses in this case are under the

Rule so you'll have to leave the courtroom after you have

finished testifying. You’re not to discuss your testimony

with anyone except the attorneys until the case is over.

Thank You.

DIRECT EXAMINATION

BY MR. LINGEMAN:

Q. State your name, please, and occupation.

A. Larry Bunting, Police Officer for the City of Tuc-

Q. How long have you been so employed?

A. Since 1960.

Q. What detail are you in right now?

A. I’m presently in the uniform division.

Q. At any time prior to this time were you in the

homicide division?

A. Yes, I was.

Q. For how long?

A. Nine years.

Q. Were you the head of that division?

A. Iwas.

[62] Q. Up until when?

A. Couple of weeks ago.

Q. Are you familiar with the La Conga Bar robbery-

murder that occurred back in October 1974?

A. Yes, I am.

101

Q. Did you take part in the investigation of that case?

A. Yes, I did.

@. Was it your case or did you assign it to one of the

men under you?

A. Detective Marmion was assigned as the lead detec-

tive.

Q. What does that mean?

A. It means he was the detective charged with the

primary responsibility of investigating the case and my

position was as a supervisor of the overall detail.

Q.. January 19th, 1976, did you make an arrest refer-

ence that case?

A. Yes, sir.

Q. An arrest of the person by the name of Robert Ed-

wards who also goes by the name of Willie Barfield?

A. Yes, Sir.

Q. Do you see that person in the courtroom?

[63] <A. Yes, sir.

'Q. Point him out.

A. Sitting at the defense table to Mr. Brogna’s left

wearing a blue shirt.

MR. LINGEMAN: May the record reflect the witness

pointed out the defendant?

THE COURT: Yes.

Q. (By Mr. Lingeman) Can you tell us the circum-

stances of that arrest?

A. He was arrested per an arrest warrant. He was ar-

rested on East 24th Street in Tucson, the evening of the

19th or about 4:00 in the afternoon.

Who else was present?

Detective Steve Bunting.

Any other uniform officers?

One uniform officer.

How did you affect the arrest, what happened?

Went to the door of the apartment, identified our-

> re

102

selves. Mr. Edwards came to the door, showed him a copy

of the warrant. There was an altercation, struggle be-

tween us and he was eventually subdued and taken to the

police station.

Q. Could you be a little more specific [64] about the

altercation or the struggle?

A. He resisted. There was a struggle. Knocked down a

block wall effect dividing the apartment. He started

around the corner and a uniformed officer intercepted him

and there was a struggle and he was handcuffed and taken

to the station.

Q. Had you asked—had you advised him what the

charges were, what the arrest was for?

A. I had advised him of the charge and showed him a

copy of the warrant.

Q. Before he attempted to escape?

A. That’s correct.

Q. He was subsequently apprehended?

A. Yes, sir, he was.

Q. Taken to the Tucson Police Department?

A. That is correct.

Q. Was he advised of his constitutional rights?

A. He was advised of his rights at the police station.

Q. Okay.

Were you present at that time?

A. Yes.

Q. Can you advise the jury of the exact rights of which

he was advised?

[65] A. I read to him from this rights card. He was ad-

vised that you have the right to remain silent. Anything

you say can and will be used against you in a court of law.

You have the right to the presence of an attorney to assist

you prior to questioning, and to be with you during ques-

tioning, if you so desire.

If you cannot afford an attorney you have the right to

have an attorney appointed for you prior to questioning.

103

He was asked: Do you understand these rights? He

stated he did.

Now, having been advised these rights and under-

standing these rights, will you answer my questions? He

stated he did and he talked to us after being advised of

those rights.

Q. How long did you talk to him at that time?

A. That evening?

THE COURT: Just a minute.

MR. BROGNA: May we approach the bench?

THE COURT: Yes.

(Thereupon, a conference was had at the bench out of

the hearing of reporter and the jury.)

[66] MR. BROGNA: During the course of questioning I

didn’t stand up at the time because Sgt. Bunting—Mr.

Lingeman seems to always have this, but Mr. Lingeman

characterized Mr. Edwards’ movements at the time of the

arrest: Is that when he attempted to escape? Yes, it is,

before any objection could be made. It’s a prejudicial

characterization of the evidence which only the jury can

make.

I think they know if they start talking fast they can get

away with it with the defendant depending on himself.

That’s not fair. The defendant makes a motion for mistrial

on the basis of those comments.

If the Court is not going to do that then an indication to

Mr. Lingeman and Sgt. Bunting to give us a chance to ob-

ject.

THE COURT: Mr. Lingeman, on the mistrial.

MR. LINGEMAN: I oppose the motion.

THE COURT: All right. The motion for mistrial is de-

nied and I’ll caution counsel.

(Bench conference concluded.)

THE COURT: Mr. Lingeman and Sgt. Bunting, in ask-

ing the questions and in giving answers, please hesitate

long enough so that the [67] defendant may make a legal

objection if he has one. Thank you.

104

Q. (By Mr. Lingeman) I think the last thing I was

asking was how long you had your conversation at the

police station?

A. Approximately two and a half to three hours that

evening my total contact with the defendant.

Q. At some point in time was there a tape of the con-

versation between you and Mr. Edwards?

A. Yes.

Q. Okay.

Was that immediately or was that some time during the

course of these hours?

A. It was fairly shortly after arriving at the police sta-

tion he wanted to give this statement.

Q. Who else was present at the time that this formal

statement was given?

A. Detective Steve Bunting.

Q. Just the three of you—yourself, Steve Bunting, and

Mr. Barefield or Mr. Edwards?

A. That is correct.

Q. Okay.

What proceeded, if anything, that you [68] remember

from this taped conversation?

A. Prior to the taped statement I was advised—

advised him of his rights again on the tape.

Q. Okay.

Did you have any other conversation that wasn’t on the

tape before this?

A. Just a short conversation discussing the charges. I

explained to him other people had been arrested in the

case and they made statements incriminating him as an

accomplice in the case and that we were interested in get-

ting his side of the story, and he stated he had an alibi. He

wanted to make a statement concerning his alibi.

Q. Do you have that tape with you?

A. Ido.

Q. Could I have it, please?

105

Do you recognize what has been marked here as State’s

3 for identification?

A. This is a transcription of the recording, tape rec-

ording.

Q. Now, what has been marked as State’s 4 for iden-

tification?

A. This is the casette tape.

MR. EDWARDS: Your Honor, objection on [69] the

grounds I previously argued on the grounds.

THE COURT: Overruled.

THE WITNESS: This is the casette tape of the state-

ment given by Mr. Edwards.

Q. (By Mr. Lingeman) I move to admit State’s 4 at this

time, Your Honor, and State’s 3.

THE COURT:\I think defense already has a copy of

this.

Three and four have been offered.

MR. EDWARDS: Yes, Your Honor. I would ask—I

would like to ask questions of the witness—where was the

tape at—

THE COURT: You may vo

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