# Appendix — Edwards v. Arizona > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40835006_2656%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1981 - **Citation:** 451 U.S. 477 ## Text «“ 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 ii Transcript of Proceedings—April 21, 1977, Pages 61 through 84, and 90 through 134 ............. Testimony of Larry Bunting................. 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 .... 100 100 115 118 140 140 146 146 156 1 [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. 2 [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. 3 (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. 4 (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 5 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 6 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). 7 (CAPTION OMITTED): No. A-30683 SUPPLEMENTAL MEMORANDUM IN SUPPORT OF MOTION TO SUPPRESS STATEMENTS MEMORANDUM OF POINTS AND AUTHORITIES I, 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- _ 8 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. 9 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- 10 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. 1] (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, 12 (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: 1. 2. 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. 13 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). 14 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- 15 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 16 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. 17 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 18 (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. 19 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. 20 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. 21 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- 22 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 23 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- 24 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 25 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, 26 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 27 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 28 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 29 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 30 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: 31 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? 32 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. 33 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 34 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. 35 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 36 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? 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> 37 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. A. Q. 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 39 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. 40 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. 41 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. Co EPOPOPOPrPzEOPO POP to ~ rOROP>SO 42 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- 43 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. 44 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. 45 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. 46 “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 47 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? 48 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 49 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? © > 50 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. ee 51 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. 52 [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. 53 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 54 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 55 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— 56 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?” 57 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. 58 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 -— - 59 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? 60 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" 61 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? 62 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. 63 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 64 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& 65 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 66 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- 67 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. 68 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. 69 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? 70 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. 71 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 72 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 & = yo > © = ct Q. And anytime—what happened after that, after you 73 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. 74 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. 75 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 76 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 77 [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 78 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 h [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40835006_2656%3A02. Public record. Not legal advice.