State v. Taylor , 112 Ariz. 68 ( 1975 )

HAYS, Justice,

Louis C. Taylor, a minor, was convicted of twenty-eight counts of first degree murder in violation of A.R.S. §§ 13-451, 13-452 and 13 — 453 and sentenced on each count to life imprisonment. From the convictions and sentences he appeals.

The voluminous transcript accumulated through the various stages of this prosecution relates in detail the horrifying sequence of events which transpired at the Pioneer International Hotel in Tucson the evening of December 19 and morning of December 20, 1970, and which resulted in the deaths of twenty-eight persons and injury to many others. The Pioneer Hotel, a Tucson landmark since 1932, was packed with 111 guests plus several unregistered children and private nurses. The guests, many of them Mexican nationals in Tucson to do Christmas shopping, occupied sixty-six rooms on floors three through eleven, while an additional three hundred to five hundred employees of Hughes Aircraft Corporation attended a Christmas dance in the International Ballroom on the mezzanine (second floor) level.

Any attempt at summarizing the facts is aggravated not only by the enormity of the record, which includes over ten thousand pages of transcript, but also by conflicting testimony caused by the inability of numerous witnesses accurately to recall the exact time and order of events during the few hectic hours at issue in this case. This latter complicating factor is reflected in the testimony of several key witnesses, most of whom testified on several occasions as this case worked its way through a detention hearing, transfer hearing, preliminary'' hearing, pretrial motions, trial, and new trial hearing. Several witnesses testified more than once at the same hearing. In addition, the appellant’s rendition of his activity that night and the manner in which he was handled by the police is in conflict with the testimony of the various police officers and others with whom he came in contact.

Our analysis of the record produces the following chronicle: As Frank Armenta, a former employee of the Pima County Juvenile Court Center, passed the intersection of Church and Alameda in downtown Tucson around 5:00 p. m. on December 19, 1970, he swung his car around upon seeing Louis Taylor, a former inmate at the Juvenile Center. A ten- to fifteen-minute conversation ensued during which the defendant declined a lift from Armenta, explaining he was on his way to the Pioneer where he was working as a busboy. Instead of proceeding to the hotel, however, Taylor went to several residences in search of a friend, eventually winding up with other friends at the Esquire Bar around 8:00 p. m. From there he went next door to a pool hall, then to the nearby Manhattan Bar, back to the pool hall, over to the Greyhound Bus Depot, back to the Esquire Bar, and finally to the Pioneer Hotel between 10:30 and 11:00 p. m.

Once in the hotel, the appellant headed towards the International and Terrace Ballroom areas. After observing the Hughes Christmas party for fifteen to twenty minutes, the appellant left the dance area and seated himself on a hallway stool. Rodney Dingle, a Hughes employee attending the party, testified he encountered the defendant between 11:00 and 11:45 p. m. in the hallway while searching for cigarettes. After directing Dingle to a nearby machine and then borrowing a cigarette, Taylor declined a light, stating “No, I have a book of matches.”

Exactly when the fire started is a matter of great dispute. Both parties agree to its origin in the north-south hallway of the fourth floor, although one of the state’s experts cited the third to fourth floor north staircase as an additional area of origin. The testimony as to when the fire was first detected runs generally from midnight to 12:05 a. m. The firemen arrived about 12:23 a. m. which is known from radio logs.

The combination of testimony from experts for both sides as to the burning characteristics of the carpet and testimony from hotel guests indicates a strong probability ignition occurred between 11:40 and 11:55 p. m., depending upon the amount of accelerants used, if any. The record indicates that earlier ignition of the carpet in conjunction with the heavy toxic smoke produced would have resulted in correspondingly earlier detection by hotel guests.

The first notice hotel personnel on the lobby level had of the fire was when an Old Pioneer Club busboy rushed through the main entrance at about 12:10 — 12:15 a. m. and informed the desk clerk that a man was yelling “fire” from an upper-floor window on the Stone Avenue side. Immediately after this, at 12:15 a. m., the desk clerk received a call on the switchboard from a lady in a third- or fourth-floor room who stated she smelled smoke in her room and thought there was a fire on the third floor. A bellman was then dispatched to investigate in the company of David Johnson, a custodian who overheard the conversation. Soon after leaving the elevator at the south end of the third floor north-south hallway, smoke forced the bellman to retreat because of a respiratory condition. He returned downstairs and reported the seriousness of the fire to the desk clerk who in turn called the fire department at approximately 12:20.

Meanwhile, Johnson had headed north in the third-floor hallway until he encountered Taylor standing alongside the north staircase looking up at the flaming stairs and fourth-floor landing. Taylor continued to merely observe the developing holocaust as Johnson, with limited effectiveness, tried to combat the raging fire with a fire extinguisher from a nearby cabinet. When the contents of the extinguisher were exhausted, Johnson raced down to the mezzanine-level bar area in search of additional extinguishers. There, he met Giles Scoggins, the hotel beverage manager, who directed him to nearby extinguishers and then followed Johnson as he returned to the third floor north staircase.

Upon arrival Johnson dropped the two extinguishers he was carrying and unsuccessfully attempted to operate a kinked fire hose the appellant had apparently pulled out of a nearby wall cabinet. At this point Scoggins arrived, whereupon Taylor exclaimed “I saw two colored boys with African hairdos and they were fighting and they started the fire.” Scoggins testified that he subsequently was able to unkink and use the fire hose but that it had little or no effect on the ceiling-high flames. This lack of success and an explosion-like sound caused the abandonment of firefighting efforts.

The next two hours saw the deaths of helpless upper-floor guests as the result of falling, jumping, asphyxiation, and burns. The appellant, along with numerous other civilians, aided to a disputed degree in rescue efforts directed by the Tucson Police and Fire Departments.

At approximately 2:00 — 2:10 a. m. Scoggins approached Officer Sedlymeyer at police operations headquarters in the street southwest of the hotel and informed him that a black youth present at the early stages of the fire had claimed to have seen two other youths set the fire. Two detectives and then two uniformed officers elicited further details and then the latter two officers helped Scoggins search in and around the hotel.

At about 2:35 — 2:40 a. m. Taylor, wearing a white busboy jacket, was spotted by Scoggins near the ramp entrance to the third-floor roof area in the northeast section of the hotel. The appellant immediately removed this jacket and approached one of the officers, Lewis Adams, who was looking in third-floor rooms. He tapped Adams on the shoulder and stated “There are seven boys on the seventh floor or eighth floor running around and they don’t belong there.” Adams then proceeded to follow the appellant partially up the staircase towards the fourth floor until Scoggins called the officer aside and remarked that “that’s the boy we are looking for.” Adams testified that the appellant responded “sure” he would accompany him and his companion, Officer Carstensen, outside. While walking downstairs, Taylor stated “It’s awful that somebody would set a fire like that.”

Adams then reported to his supervisor at the intersection command post, Sgt. Alfred Liiigham, that he had found the individual to whom the manager had referred. Lingham testified that the officer told him that the individual was agreeable to making a statement. At 2:41 a. m. Sgt. Ling-ham radioed police headquarters that “Officer Adams will be en route to the station with a subject we need a statement from.”

After a one-block walk to Adams’ vehicle, the appellant asked “You want me to sit in the back seat?” The officer responded “No. I don’t see any reason for you to have to sit in the back seat. You are not under arrest. You can sit up front. Well I don’t know you. I want to search you for my own protection.” Adams then conducted a “patdown” search after which they proceeded to the police station.

Upon entering the station at approximately 2:44 a. m., the officer told Taylor to “have a seat” in the coffee room. Adams then briefed Desk Sgt. Kenneth Krieger, who in turn said he would get detectives.

After entering the coffee room, a Sgt. Rossetti, who had had previous contacts with appellant, asked the appellant, who was seated in the room with three to five police officers, whether he recognized him (Rossetti) and “how he had occasion to be at the Pioneer Hotel.” Taylor stated that he did not recognize the sergeant and that he had gone to the hotel around 10 :00 p. m. to see a friend named Tatum employed there as a dishwasher; that the rear door security guard stated Tatum had already gone home; that he proceeded to enter the building anyway through the parking garage and headed towards a party he knew would be going on because he had seen people decorating the previous night; that two blacks with Afro hairstyles (whom he later said were Mexicans) were fighting on the third floor and that he saw fire; that “it was a very bad fire. I don’t know why anyone would want to do a thing like that”; and that he helped firemen by yelling in Spanish to guests who were about to jump from upper-floor windows.

At approximately 3:05 a. m. Officer Adams asked the appellant to accompany him to the main floor briefing room and, once there, to relate the evening’s events. The appellant stated he had gone to the Pioneer in search of an employee named Tatum whom he discovered was not there; that he hung around a party he discovered on the second floor until an unknown woman stated she smelled smoke which could then be seen coming from air vents; and that he ran to the third floor and saw a Mexican boy and a Caucasian boy running. Adams then interjected that this sounded inconsistent with what he had previously been told and proceeded to read the departmental rights card.¹

According to Adams’ testimony, the appellant responded “sure” indicating that he understood these rights and agreed to go through his story again. Taylor then stated he had gone to the third floor and saw two men, one of them the manager, trying to extinguish a fire and that he was asked to turn the hose valve on in what proved to be an unsuccessful attempt to get it to work; that at the manager’s request he obtained fire extinguishers from downstairs but they had little effect on the fire and he thus resorted to helping people evacuate the hotel; that he had, prior to this, seen two boys running in the halls and had tried to run them out thinking they were planning to rob patrons and had lied to Adams about them in the previous conversation because he did not want to “rat” on anyone; and that he had entered the hotel that evening through the rear parking garage and was extremely familiar with the layout of the Pioneer because he had worked there in the past.

After a twenty-minute conversation, at approximately 3:30 a. m., Det. Henry Gassaway arrived and, after Adams briefed the detective as to the statements made by Scoggins and Taylor, the appellant was turned over to Gassaway and Det. Milan Murchek. Just prior to this, Sgt. Rossetti had briefed Gassaway and supervisor Sgt. Moore as to what had been discussed in the coffee room.

Taylor was led upstairs to a second-floor detective-division interview room and, in the presence of Gassaway and Murchek, asked to describe what he had seen and done since the previous afternoon. Taylor stated that he had ridden downtown to a pool hall in the afternoon with a friend name Mike Tatum; that he walked to the bus station, back to the pool hall, and then to the Pioneer around 10:30 p. m. in order to get a ride with Mike’s brother; that, after the security guard had said Tatum had already left, he hung around a second-floor party for which he had previously seen people prepare; that while talking to some Mexican friends, a Mexican lady stated “I smell smoke” and saw the manager running up the stairs with a fire extinguisher ; that, after following the manager to the third floor, he was told to remove the fire hose from its cabinet but water would not come out when the valve was turned on; that the manager said “let’s get out of here” when the fire got out of control, and so he went down to the lobby and there spoke in Spanish with a burned Mexican girl; and that he had seen a Caucasian male and a long-haired Mexican male fighting near the scene of the fire but had seen only the backs of their heads.

At this point Taylor drew a diagram for Det. Murchek in order to illustrate the location of the fire and the unknown individuals. Murchek testified the appellant used this diagram to illustrate two separate fires he had allegedly seen: one on the north staircase steps between the third and fourth floors and another on steps leading from the third floor down to the second floor.

At approximately 3:55 a. m. Det. Gassaway was called out of the interview room to talk to Scoggins and a hotel security guard who had come down to the station. 'Upon reentering at approximately 4:15 a. m., Gassaway told the appellant he was not telling the truth or was holding back the identity of the individuals allegedly seen fighting in the hotel and proceeded to advise him of his rights from the departmental rights card.² Taylor allegedly responded that he understood these rights and agreed to answer the detective’s questions. The appellant began repeating his story stating that he had walked downtown the previous afternoon, walked back' home, rode downtown to a' poolhall with Mike Tatum, gone to the bus station, back to the poolhall and found Tatum had gone, and then proceeded to the Pioneer in search of him. Challenged by Gassaway, the appellant admitted lying about Tatum working at the hotel because “you were making hard faces on me and I just wanted to get you off my back.” He then stated that he went to the Pioneer because he knew there would be a party there and possibly might see some friends whom he later admitted he did not encounter.

Confronted with Scoggins’ version of the appellant’s statements, a heated exchange ensued during which Taylor said he now remembered having gone to the third floor before the manager, but that the manager was mistaken as to what had been said and that the police could not prove otherwise, and that he would not “fink” on whom he actually saw. He eventually admitted that he saw no one run from the scene of the fire. The appellant then asserted that he had seen three Caucasians and two Mexicans unsuccessfully attempting to enter the hotel’s liquor storage room and that the Mexican, who looked mean and had a gun in his waistband, probably started the fire. Taylor refused to “fink” on their identities saying only that one of the individuals sold drugs in a local park or poolhall. Another heated exchange occurred when Gassaway suggested the fire was set in conjunction with a plan to burglarize rooms, the appellant repeatedly screaming that the police could not prove anything and that “I didn’t kill those people.”

Taylor initially said he put on the white jacket in order to pass as an employee and steal drinks, but subsequently stated he put the jacket on only upon finding it after the fire broke out. The appellant at first rejected and then confirmed Scoggins’ assertion that he already had the fire hose out of the cabinet and was attempting to operate it when Scoggins arrived at the third floor north staircase.

Gassaway testified Taylor admitted having set fire in the past to garbage receptacles, one or two trees, and had considered burning down an old empty house, but repeatedly denied responsibility for the Pioneer fire. The interview concluded sometime between 5 :00 and 5 :30 a. m., Murchek apparently remaining a short while after Gassaway’s departure.

Between 5 :40 and 6:00 a. m., Det. Rex Angeley, who had been briefed by Murchek, Moore and Gassaway, entered the interview room in which the appellant was now seated alone. Angeley testified that he had encountered Taylor between forty and fifty times since 1965 when he was working in the juvenile division and was recognized upon entering the room.

The appellant stated he had gone to the Pioneer to see an employee named Grigsby but the security guard would not let him in; that he returned later to see an employee named Tatum and was again denied admission but nevertheless was able to get inside and hung around a second-floor party; that he saw two black boys with Afro hairstyles on the fourth floor, who he later said were two Mexican boys, and that one had a gun and looked suspicious and that he witnessed them set the fire but was unable to give a description; that it actually was a long-haired Caucasian boy and a hippy Mexican whom he saw on the fourth floor and that he saw the Mexican whom he recognized as a dope-pusher in a local park and poolhall, set the fire. At the conclusion of the 35- to 40-minute interview, or approximately 6:15 — 6:30 a. m., the appellant asked to take a lie detector test and was granted his request to make two telephone calls.

Shortly after this, Capt. Lynden Gilmore of the Tucson Fire Department, who had been briefed by Sgt. Moore and Det. Gassaway, interrogated the appellant. During the 10-minute interview Taylor stated he had heard a woman mention she smelled smoke and ran up to the fourth floor and saw the fire. He repeated that he “didn’t kill those people” despite Det. Gassaway’s repeated accusations. At approximately 6:50 — 7:00.a. m. the appellant was taken to a nearby building for a polygraph examination which was administered by Officer Douglas Scoopmire at 7:15 a. m. Both of them returned to the detective division around 7:30 — 7:45 a. m.

Sgt. Patrick McGuire arrived at the station shortly before 8:00 a. m. to assume supervisory duties from Sgt. Moore. Det. Angeley then briefed them both as to his knowledge of the case. Soon thereafter Sgt. McGuire instructed the detectives to place Taylor under arrest for arson. Angeley was assigned to make out the juvenile interim report. At approximately 9:00 a. m. Det. David Smith, who had been briefed by Sgt. McGuire, interrogated the defendant in a second-floor detective-division interview room for about ten minutes. Smith read the departmental rights card,³ and Taylor responded that he understood and agreed to answer the detective’s questions. The appellant stated that he had gone to the Pioneer for a party about which he had heard; that he had tried to restrain one of four Mexicans looting rooms but was unable to because a police officer told him to go home; that this Mexican must have started the fire because of the look in his eye; and when asked if he set the fire Taylor stated, “No, I didn’t want to kill all those people.” Smith then accompanied the appellant when he was transported to the Juvenile Center at 9:30 a. m. They proceeded into the receiving room where the receiving officer, Gerald Soop, informed Taylor of his rights, the nature of the charge and that he could be tried as an adult. The appellant then requested he be provided with an attorney. Detective Smith then took the appellant to an interview room at the Center, after which they returned to the receiving room where a search disclosed the appellant was carrying five packs of matches.

The Pima County Attorney filed a petition alleging delinquency on January 12, 1971, charging the appellant with responsibility for arson at the hotel and the murder of 28 persons. After a lengthy hearing Taylor was transferred on April 22, 1971, from Juvenile Court to stand trial as an adult. The Court of Appeals in In, re Anonymous, Juvenile Court No. 6358-4, 14 Ariz.App. 466, 484 P.2d 235 (1971), upheld the validity of the transfer hearing, stating that there was sufficient evidence to establish probable cause that a crime had been committed and that the minor was responsible. The court determined that there was sufficient evidence from which the juvenile court judge could conclude that the minor was not amenable to treatment or rehabilitation as a delinquent child through available facilities, was not committable to an institution for mentally deficient or mentally ill persons and that the safety or interest of the public required transfer for criminal prosecution.

The Court of Appeals also found that statements made by the appellant before he was advised of his rights by Officer Adams were not made while in custody and thus not the product of “custodial interrogation.” The court declined comment on the admission of subsequent statements, stating that even if their admission was error, the transfer hearing would not be vitiated. This Court denied review on June 8, 1971.

Appellant has raised eighteen allegations of error in this appeal, with numerous subheadings, dealing with almost every stage of the prosecution, from the transfer proceedings through denial of his motion for a new trial. The state has filed a cross-appeal asserting other errors by the trial court. We shall discuss in detail only those contentions which we find to be of arguable merit. To avoid making this opinion an even greater opus, we must of necessity dispose of many contentions summarily.

I. TRANSFER HEARING

The first issue presented by appellant concerns the constitutionality of Rule 14, Rules of Procedure for the Juvenile Court, and related questions as to the validity of the transfer hearing. Much of this issue was decided in In re Anonymous, supra, and has become the law of the case. We find no merit to the assertion that Rule 14, supra, is unconstitutional because of vagueness and lack of specificity. The phrase “amenable to treatment or rehabilitation,” especially as applied to the appellant, is clear. Taylor had been committed to the Industrial School at Fort Grant on previous occasions and had received the services of the juvenile court over a number of years. Obviously there was nothing further the juvenile court could do to treat or rehabilitate him. There is no support in the record for appellant’s contention that the trial court erred in denying his motion to remand to juvenile court.

II. CONDUCT OF COUNSEL

Under this heading we shall treat two of the “Questions Presented” by appellant in his brief along with their various subdivisions. Appellant asserts that he was denied due process of law when, on order of the court, the prosecutor failed to furnish him the names of witnesses he actually intended to call. Apparently, after prompting by appellant through the court, the prosecutor’s witness list was reduced from approximately 650 to 250 persons.

This case was not the routine case because literally hundreds of people of the city of Tucson had some role in the suppression of the fire or were eyewitnesses to the fire. The reluctance of the prosecutor to limit the witnesses available to present his case is understandable. The defense counsel obviously made a well-organized effort to cover the list presented. The trial judge used his discretion in supervising the pretrial efforts of both counsel and heard defense counsel’s charges of blatant misconduct on the part of the prosecutor in this regard. We are not constrained to impose our assessment of the circumstances over that of the trial judge, especially when appellant has shown no specific prejudice. The appellant cites State v. Singh, 4 Ariz.App. 273, 419 P.2d 403 (1966), as being analogous and supporting his position, but we do not find this to be correct.

The appellant further asserts that the prosecutor failed to disclose evidence helpful to the defendant pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and the court’s order. He asks us to take judicial notice that the particular prosecutor in this case neither believes in nor abides by the doctrine of disclosure. We decline to do so as being wholly inappropriate. Appellant seems to • argue that because the prosecutor made no further voluntary disclosures after a September 13, 1971, disclosure hearing, it is incongruous to believe that the prosecutor complied with the law and the order of the court. The appellant’s bare assumption that something was withheld does not show the requisite prejudice. We do not reverse on conjecture alone.

Next, we find an assertion by the appellant that he was denied a fair trial by reason of the prosecutor’s misconduct. The alleged misconduct concerns the prosecutor’s opening statement and his numerous disruptive objections and speeches. He claims the court erred in denying appellant’s motion to substitute prosecutors. Appellant contends that there were 2,043 objections or interruptions by the prosecutor in the course of the 42-day trial. The county attorney asserts that there were 1,737 objections and interruptions on behalf of the state and 1,111 by the appellant’s counsel. Over half of the objections by either side were overruled. We did not make a statistical count but in reading the trial transcript in its entirety we saw that both prosecution and defense interposed numerous objections which were lacking in validity. The prosecutor was overzealous and at times overly insistent in asserting his position. In State v. Moore, 108 Ariz. 215,495 P.2d 445 (1972), we said:

“. . . Misconduct alone will not cause a reversal, as a new trial should not be granted to punish counsel for his misdeeds, but where the defendant has been denied a fair trial as a result of the actions of counsel, we will reverse. . . .” 108 Ariz. at 222, 495 P.2d at 452.

The conduct of the prosecutor was not so outrageous and improper as to deny the appellant a fair trial. The able and experienced trial judge while exhibiting commendable patience fully controlled the trial. Defense counsel was most capable and provided a good match for the prosecutor. Appellant’s counsel takes great comfort from State v. Moore, supra, but the situations are not the same.

Appellant moved for Substitution of Prosecutor on August 23, 1971, asserting a conflict of interest which precluded the prosecutor from fairly discharging his duty. He alleged that the attorney representing the Pioneer Hotel had previously represented the deputy county attorney in a personal legal action. The trial judge denied the motion, and we find no abuse of discretion here. State v. Belcher, 106 Ariz. 170, 472 P.2d 39 (1970), cited by appellant, does not support his position because of the great difference in the facts.

It is interesting to note that appellant’s counsel was found in contempt of court (though fined, only five dollars) for making the appellant available for press interview, contrary to the court order. We refer to this only to indicate that in this hard-fought battle both counsel became emotionally involved, and often conducted themselves with excessive zeal.

The trial judge at the time of sentencing made a comment to the appellant which squarely meets the issue of misconduct. He said: “As I say, I never have seen a case better defended. In my judgment the trial was completely fair.”

III. CHALLENGE TO THE JURY

Again we treat two of appellant’s questions under one heading.

The appellant, on December 6, 1971, filed a challenge to the jury panel pursuant to Rule 213, Rules of Criminal Procedure, 17 A.R.S. Thereafter, on January 25, 1972, an amended challenge was filed asserting numerous imperfections in the system of selecting and excusing jurors. Appellant is not entitled under our law to a perfect jury panel empaneled through a perfect system, as such is not possible. He shows neither prejudice nor denial of due process. State v. Mahoney, 106 Ariz. 297, 475 P.2d 479 (1970), cert, denied, 401 U.S. 917, 91 S.Ct. 898, 27 L. Ed.2d 818 (1971).

In late August, 1971, the appellant demanded to know whether or not the death penalty was being sought by the state. He subsequently filed a motion in limine challenging the death penalty. The court, however, denied appellant’s motion. The appellant asserts that the court’s written questionnaire submitted to the jury with reference to the death penalty was prejudicial. He further objects to the fact that the voir dire of the jury encompassed the death penalty although the state ultimately in argument did not demand that penalty nor was it imposed. We find no merit to appellant’s position as the question of death penalty became irrelevant by reason of the fact that it was removed from the case by the jury’s verdict. Wither-spoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); State v. Bray, 106 Ariz. 185, 472 P.2d 54 (1970).

IV. ADMISSION OF MATCH BOOKS AND RELATED EXPERT TESTIMONY

The appellant, on September 20, 1971, had filed what he termed an Objection in Limine to exclude from evidence any reference to the match books and matches taken from Taylor. He also contended in that motion and in a subsequent one that no expert opinion should be permitted as to the specific cause of the fire.

At the trial, evidence regarding matches in the possession of the appellant after his arrest was permitted. The state’s expert witness was also permitted to testify as to the origin of the fire and the fact that tests showed that matches could have started the fire.

We find no error with regard to the admission of the evidence of the matches in Taylor’s possession. One witness, Wallmark, testified that Taylor made admissions to him indicating the use of matches.

We find no merit to the assertion that the seizing of the matches was illegal. In a hearing the trial court denied appellant’s motion to suppress, finding that there was probable cause to arrest Taylor and take him to the juvenile facility. State v. Boyer, 106 Ariz. 32, 470 P.2d 439 (1970).

We hold that the trial court was well within the limits of its discretion when it permitted the expert witness to testify as to the tests conducted regarding how the fire started. Appellant’s expert was also allowed to testify as to tests he conducted.

V. SUFFICIENCY OF EVIDENCE

The appellant attacks the sufficiency of the evidence at all stages of the proceeding from the preliminary hearing through the trial. He asserts that his motion for directed verdict should have been granted at the close of the state’s case in chief, and that the court should have granted his motion for new trial because there was not sufficient evidence to support the jury’s verdict. We do not agree with appellant’s evaluation of the evidence. There is substantial evidence to uphold the verdict. State v. Rhymes, 107 Ariz. 12, 480 P.2d 662 (1971); State v. Harvill, 106 Ariz. 386, 476 P.2d 841 (1970).

VI. STATE’S EXPERT WITNESS

Appellant contends that the court erred in permitting the state’s expert witness on arson to testify concerning tests he conducted regarding the origin and cause of the fire. He further objects to the admission of photographs of certain tests, and questions the sufficiency of the foundation for the witness’s testimony that the fires were simultaneous. We do not propose to discuss here the hundreds of pages of testimony involved, but suffice it to say that the trial judge did not abuse his discretion. State v. Brierly, 109 Ariz. 310, 509 P.2d 203 (1973).

The final point made by appellant under this heading concerns an allegation that the judge erred in limiting the impeachment of the expert because he refused to permit th.e use of a page of a book describing a test. The expert did not recognize the test as authoritative, and the judge wouldn’t permit counsel to proceed. Counsel cites no legal authority for his assertion that this ruling was error. See Wall v. Weaver, 145 Colo. 337, 358 P,2d 1009 (1961).

VII. JURY INSTRUCTIONS

The next contention of appellant is in regard to the trial court’s failure to instruct the jury on manslaughter. We are aware that the court is duty-bound to instruct on every degree of homicide embraced in the information which the evidence suggests even though no request has been made therefor. State v. Madden, 104 Ariz. Ill, 449 P.2d 39 (1969).

In this case we are not dealing with the usual murder charge. This point was well presented in the previous appeal to the Court of Appeals in In re Anonymous, supra.

“A person who willfully and maliciously sets fire to a building is guilty of arson, a felony. A.R.S. § 13-232. Murder is the unlawful killing of a human being with malice aforethought. A.R.S. § 13-451. A murder which is committed in the perpetration of arson is murder of the first degree, A.R.S. § 13-452, whether willful and premeditated or only accidental. People v. Chapman, 261 Cal. App.2d 149, 67 Cal.Rptr. 601 (1968), cf. State v. Akins, 94 Ariz. 263, 383 P.2d 180 (1963) ; State v. Serna, 69 Ariz. 181, 211 P.2d 455 (1949) ; 1 Wharton’s Criminal Law § 251 at 539.” 14 Ariz.App. at 472, 484 P.2d at 241.

The holding of Madden, supra, cannot be held to apply to this type of charge. State v. Clayton, 109 Ariz. 587, 514 P.2d 720 (1973).

VIII. BILL OF PARTICULARS

Appellant filed a motion for Bill of Particulars on August 25, 1971, asking the court to order the prosecutor to reveal the detailed particulars of what the state intended to prove. The trial court denied the motion. This is a matter within the discretion of the trial court and no abuse is shown. State v. Gortarez, 98 Ariz. 160, 402 P.2d 992 (1965).

IX. VOLUNTARINESS OF APPELLANT’S STATEMENTS

We find this issue to be the most difficult issue presented in the appeal. The voluntariness of Taylor’s statements to the police has been hotly contested through all of the various stages of the proceeding. As we have previously indicated, the Court of Appeals in In re Anonymous, supra, considered this matter to a limited extent as regards the juvenile transfer hearing. The issue was raised in the preliminary hearing and thereafter was the subject matter of extensive testimony in a pretrial suppression hearing.

The Supreme Court accepted jurisdiction of a petition for special action in State v. Hardy, 107 Ariz. 583, 491 P.2d 17 (1971), and held that in determining the voluntariness of. Taylor’s statements and whether he intelligently comprehended his rights, the presence of the child’s parents or their consent to a waiver of rights is only one of the elements to be considered by the trial court. The trial judge thereafter heard additional testimony on the issue and ruled as follows:

“The Court finds that the defendant understood his constitutional rights not to incriminate himself and to be represented by counsel and that his statements to the police officers were made voluntarily.”

Appellant urges us to consider the totality of the circumstances surrounding the interrogation of Taylor. Gallegos v. Colora-, do, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962); People v. Lara, 67 Cal.2d 365, 62 Cal.Rptr. 586, 432 P.2d 202 (1967), cert, denied, 392 U.S. 945, 88 S.Ct. 2303, 20 L. Ed.2d 1407 (1968). This we do in perusing over a thousand pages of pretrial hearing transcript. We note that there are marked conflicts in the testimony, and we must in our appellate role resolve those conflicts in favor of upholding the position of the trier of fact. State v. Hughes, 104 Ariz. 535, 456 P.2d 393 (1969).

With the foregoing in mind, we shall briefly examine the pertinent facts. At the time of the statements in question, Taylor was 16 years and 8 months old. He was of Mexican and Negro descent and lived in a fatherless poverty-level home. He claimed a tenth-grade education although the juvenile records indicate that he had gotten through only the eighth grade. The extensive psychological evaluation prior to trial indicates that Taylor was functioning at the borderline level of intelligence with a low average potential. He was otherwise normal mentally.

Taylor had had numerous contacts with the juvenile court starting at age 11. He was sent to the Arizona State Industrial School at Fort Grant on four separate occasions. On his last commitment to Fort Grant, he had so successfully feigned epileptic seizures that he was sent to the Arizona State Hospital.

The offenses involved were serious charges including armed robbery, burglary and larceny. Although he had not participated in a transfer hearing, he was warned in the past that he could be transferred to adult court to face charges as an adult. In the course of these events he had also become acquainted with the Miranda rights.

We now turn to the testimony of the interrogation which was set forth earlier in our recital of the facts. In examining this testimony we have come to the conclusion that Taylor was not in custody until Officer Adams, on realizing the inconsistency of the appellant’s statements, read him the Miranda rights card.⁴ State v. Bainch, 109 Ariz. 77, 505 P.2d 248 (1973). We are aware that there is testimony which if believed could lead to a conclusion that the appellant was in custody much sooner, thus necessitating formal Miranda warnings, but there is substantial testimony to support the finding of the trier of fact that the prior interrogation was consistent with questioning the only witness who apparently had information concerning the origin of the fire. State v. Hughes, supra. This issue was also considered in In re Anonymous, supra.

We consider now appellant’s contention that Taylor was a frightened, ignorant child subjected to vigorous questioning and badgering by experienced police officers over a period of seven hours without sleep or food. Taylor’s own testimony indicates that he rose from his bed at 4:00 p. m. on the 19th of December, 1970, only some seven hours prior to the discovery of the fire. Our previous recital indicates that the questioning was long (almost seven hours) and eight police officers and a fire department official at one time or another talked to and interrogated the appellant. However, we are impressed by the fact that despite this alleged overwhelming atmosphere, the appellant never confessed to anything. He continued through an ever-changing pattern of fabrications to protest his innocence, and ultimately volunteered to take a lie detector test. In fact, the inconsistencies which pervaded Taylor’s statements up to the time Officer Adams read him his Miranda rights were of greater significance than subsequent statements. The lack of food and sleep arguments are not borne out by the facts.

We find ourselves in the same position as was the California Supreme Court in People v. Lara, supra, which found on the basis of all the testimony that the defendant had the capacity to understand his rights and the effect of a waiver of those rights.

Our examination of the record convinces us that Taylor’s statements were voluntarily made.

As an additional point under this heading, appellant raises the question of the admissibility of statements Taylor made to a detention officer while at the juvenile facility. Here again we have a conflict. The officer testified that Taylor volunteered the statements without query from the officer. The officer also testified that he admonished appellant about discussing the case with him but appellant persisted.

We find no error here nor in the court’s refusal to permit cross-examination regarding the witness’s refusal to discuss his testimony with defense counsel prior to the trial. State v. Best, 15 Ariz.App. 77, 486 P.2d 189 (1971).

X. COURT RULINGS ADMITTING OR EXCLUDING EVIDENCE

Appellant cites numerous illustrations in the record where he contends the court erred in admitting prosecution testimony. He does not demonstrate how these rulings prejudiced the appellant nor does he, except in three instances, cite any authority. In some instances where error is claimed, he failed to object to the evidence. We find no reversible error here.

We next find numerous assertions of error based on the court’s sustaining the prosecutor’s objections to evidence presented by the appellant. He asserts that these errors are sufficiently prejudicial, independently or collectively, as to require reversal. Here again we have no specifics and little authority. We did not find reversible error.

XI. COURT’S PERMITTING STATE TO REOPEN

After the appellant had started putting on his case, the state moved to reopen in order to present the testimony of Robert Jackson who had been detained at the juvenile facility at the same time as Taylor. The appellant objected to the state’s reopening contending that the witness was available prior to the time the state rested. The court refused the request to reopen but indicated that the state could renew its motion at the close of the appellant’s case.

At the conclusion of the appellant’s case the state was permitted to reopen and present the testimony of Jackson. In ruling on the state’s motion, the court said:

“All right. I might also state for the record that my decision to permit the state to re-open is that the state had made the motion early in the defense case, only after three or four witnesses testified, and I denied it at that time primarily because of the objection of the defendant as to the interruption of his case. That’s all I think needs to be said.” (R.T.March 15, 1972, p. 3).

Argument and discussion before the court indicated that on the Monday when Jackson was present at court he was not yet under subpoena by the state. Thereafter, before making use of his testimony, the prosecution had him take a lie detector test.

As the appellant indicates in his brief, the testimony of Jackson was crucial. It was the only testimony of a seven-week trial which the jury wanted re-read to them during their deliberations. In essence, he testified that Taylor told him that Taylor started the fire. He said that Taylor indicated he squirted lighter fluid on the wall and lit it. He heard someone coming and took off.

Appellant concedes that the trial judge is given great discretion in relation to the order of proof and in relation to the granting of leave to reopen. State v. Favors, 92 Ariz. 147, 375 P.2d 260 (1962). He, however, contends that there is an abuse of discretion here which falls under State v. Cousins, 4 Ariz.App. 318, 420 P.2d 185 (1966); reh. denied, 4 Ariz. App. 468, 421 P.2d 901; review denied, January 17, 1967. We do not agree. Appellant had his chance to hear the testimony of Jackson before he was well into his own case. After he objected to the state’s attempt to reopen at that time, he knew the court would entertain the motion again at the close of his case. It would make no difference in the result if Jackson’s testimony came in in rebuttal rather than in the case in chief.

XII. APPELLANT’S MOTION FOP. DISCOVERY AND INSPECTION

The appellant here complains that his Motion for Discovery and Inspection filed September 15, 1971, was in all but one respect denied. He contends that it was an abuse of discretion for the court to refuse to order the production of appellant’s statements not yet revealed in previous hearings, and any evidence of pretrial identification. He asserts that at least an in camera inspection of photographs exhibited to witnesses in pretrial identification of the appellant should have been ordered. State ex rel. Berger v. Superior Court, 105 Ariz. 473, 467 P.2d 61 (1970).

State ex rel. Berger, supra, talks of compelling and exceptional circumstances where pretrial identification becomes a material issue. Appellant’s conjectural comments do not indicate this matter falls within the standards set by that case.

The appellant fails to specifically identify the statements of appellant which should have been produced. See State v. McGee, 91 Ariz. 101, 370 P.2d 261 (1962), which holds that a motion for inspection of statements of defendant and other documents is addressed to the sound discretion of the court. We find no abuse of discretion here.

XIII. ERROR IN GIVING CERTAIN STATE’S INSTRUCTIONS AND FAILURE TO GIVE CERTAIN OF DEFENDANT’S INSTRUCTIONS

We have examined the instructions given to the jury by the trial court and we hold that the jury was properly instructed. We find no merit to appellant’s contentions in this regard.

XIV. USE OF TRANSCRIPTS OF PRIOR TESTIMONY OF DAVID JOHNSON

The state moved for a continuance prior to trial because of the inability of a witness, Johnson, to appear. The appellant opposed the motion for continuance and the state asked leave to have the transcripts read to the jury in the event the continuance was denied. The state also asked that deputy county attorney Dingeldine, who was present at the hearing at which Johnson’s testimony was taken, be permitted at the time of the reading to make indications on charts according to his recollection of what Johnson had done.

Appellant contends that the trial court erred in requiring the whole transcript, both direct and cross-examination, to be read. He asserts that the cross-examination in the earlier hearing contained prejudical matters which he preferred to avoid at the trial. He properly objected to the use of the cross-examination testimony. However, appellant cites no authority to support this contention. Here again we have a matter within the discretion of the trial court. State v. Head, 91 Ariz. 246, 371 P.2d 599 (1962), cert, denied, 373 U.S. 942, 83 S.Ct. 1550, 10 L.Ed.2d 697 (1963).

XV. COURT’S REFUSAL TO PERMIT A DEMONSTRATION DURING CLOSING ARGUMENT

Appellant contends that he was unduly restricted in his closing argument by reason of the trial court’s refusal to permit a demonstration. Counsel for appellant wished to use a magnet to demonstrate its action on a metal staple from a match book. He contended that this would have high-lighted the absence of any metal staples in the debris on the hotel’s fourth floor.

We have previously indicated that attorneys are given wide latitude in their arguments to a jury. State v. Brooks, 107 Ariz. 320, 487 P.2d 387 (1971). However, here we find no abuse of the discretion reposed in a trial judge. We cannot but classify the refusal to permit the demonstration as harmless if by some stretch of the imagination the refusal could be called an abuse.

XVI. MOTION FOR NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE

The appellant on April 21, 1972, filed a motion for new trial with this court, as the case was then proceeding on appeal. The new-trial motion was remanded to the trial judge who after hearing denied the motion.

The main basis for the appellant’s motion was a statement by the witness, Jackson, wherein he admitted to perjury at Taylor’s trial. Also presented were affidavits of friends of Wallmark and Jackson to corroborate the alleged fact that they had lied at the trial.

At the hearing, the position of appellant was not borne out. Jackson, even though granted appointed counsel and immunity from prosecution, unequivocally affirmed his trial testimony.

In addition, appellant asserts machinations, intimidation and subornation of perjury on the part of the prosecutor and his investigator. These charges are supported only by conjecture and innuendo, and if they have any basis, in fact, they are matters for a totally different proceeding.

The refusal of the trial judge to hear testimony of friends of Jackson and Wall-mark was not error. This type of collateral impeachment under the facts here is not appropriate.

Appellant cites State v. Merryman, 79 Ariz. 73, 283 P.2d 239 (1955) as supporting his position. We do not agree. We find State v: Kidwell, 106 Ariz. 257, 475 P.2d 241 (1970), correctly states the rule of law. The trial court did not abuse its discretion.

STATE’S CROSS-APPEAL

In view of our disposition of the appellant’s case on appeal, we see no need to discuss the points raised by the state’s cross-appeal. One matter is worthy of comment, however. Subsequent to the trial court’s dismissal of the arson charge, we held that a defendant may be charged and convicted for murder and for the arson which caused the homicide. State v. Miniefield, 110 Ariz. 599, 522 P.2d 25 (1974).

The judgments of conviction and sentence are affirmed.

STRUCKMEYER, V. C. J., and LEVI RAY HAIRE and EINO M. JACOBSON, Court of Appeals Judges, concurring.

Note:

CAMERON, C. J., and HOLOHAN, J., did not participate in the determination of this matter. LEVI RAY HAIRE and EINO M. JACOBSON, Court of Appeals, Judges, Division, One, sat in their stead.

1 . “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to the presence of an attorney to assist you prior to questioning, and to be with you during questioning, if you so desire. If you cannot afford an attorney you have the light to have an attorney appointed for you prior to questioning. Do you understand these rights? Now having been advised of these rights and understanding these rights will you answer my questions?”

Note that this is different from Rule 18 of the Rules of Procedure for the Juvenile Court, 17A A.R.S. which controls the admissibility of statements made by a minor. State v. Hardy, 107 Ariz. 583, 491 P.2d 17 (1971).

2 . See footnote 1.

3 . See footnote 1.

4 . See footnote 1.