State v. McFall , 5 Ariz. App. 539 ( 1967 )

KRUCKER, Judge

(Dissenting) :

Although in complete agreement with the resolution of the other questions raised in this appeal, I cannot concur with the resolution of the majority of the issue of voluntariness. It is my belief that the majority has misinterpreted the recent United States Supreme Court confession cases, has virtually ignored the clear mandate of the Arizona Supreme Court, and has refused to consider certain vitally important medical factors which these Arizona cases require to be examined.

Here we have a defendant, admittedly strongly addicted to Dilaudid, a morphine-type drug, asking for it in the police station, and who, on petition of the police, was hospitalized early the next morning, on the advice of a physician, a Dr. Krisanic.

This case is not concerned with police brutality,, nor is there any intimation that the police officers did anything questionable or wrong. The sole question is whether the accused, because of his physical condition, could have had an intelligent understanding of his right to remain silent.

I believe that the majority places too narrow an interpretation upon the Supreme Court confession cases. While it is true that a major concern of that Court has been the deterrence of police brutality, that is only part of the picture. See Comment, The Coerced Confession Cases in Search of a Rationale, 31 U.Chi.L.Rev. 313 (1964) ; Developments in the Law—Confessions, 79 Harv.L.Rev. 938 (1966). As stated in Johnson v. State of New Jersey, 384 U.S. 719, 729-730, 86 S.Ct. 1772, 1779, 16 L.Ed.2d 882, 890 (1966):

“Our opinion in Miranda makes it clear that the prime purpose of these rulings is to guarantee full effectuation of the privilege against self-incrimination, the mainstay of our adversary system of criminal justice. * * * They are designed in part to assure that the person who responds to interrogation while in custody does so with intelligent understanding of his right to remain silent and of the consequences which may flow from relinquishing it. In this respect the rulings secure scrupulous observance of the traditional principle, often quoted but rarely heeded to the full degree, that ‘the law will not suffer a prisoner to be made the deluded instrument of his own conviction.’ ” (Emphasis added)

The fact that Miranda turns away from consideration of an accused’s mental state at the time of confession in favor of a rigid formula of warnings is not to be construed as holding mental state irrelevant; rather the Miranda decision is a recognition that such determinations are difficult to. make, and too much subject to the discretion of the trial judge (possibly colored by an awareness of guilt).

The Arizona Supreme Court was vitally aware of the importance of considering the state of mind of the suspect when the Gallagher decision (cited by the majority) was written. The majority attempts to distinguish this case on the admittedly bad physical condition of the defendant Gallagher, but overlooks State v. Costello, 97 Ariz. 220, 399 P.2d 119 (1965), wherein the defendant’s health is not even mentioned.

It would appear, therefore, that the Arizona cases, to say nothing of those of the United States Supreme Court, mandated the trial judge to probe more deeply in determining whether the condition of Richard McFall was such that he could have made a free and intelligent waiver of his constitutional privilege against self-incrimination. There was no medical evidence as to the condition of the defendant during the critical time at which he waived his rights. The State admits that he “was in a condition to be taken advantage of if he was starting withdrawal symptoms.”

There are several dangerous aspects of drug addiction to consider. If the defendant was actually under the euphoric influence of Dilaudid at the time of arrest, he may have been in no condition to make an intelligent waiver of his rights.

The other side of the addictive reaction, however, may be even more dangerous. It is admitted by the State that the defendant was in a state of acute withdrawal at the time he had to be taken from the jail to the hospital early the next morning. The circumstances are such as to raise a question as to whether this reaction may have set in at the time of arrest and may have been quite severe at the time of interrogation.

It is recognized that in (or just prior to) the beginning of the withdrawal period, the addict-suspect is most vulnerable to police influence. The situation has been well summarized in 8 Am.Jur. Trials § 28:

“First, the very nature of addiction makes it patent that an addicted suspect in need of drugs will usually do anything, and certainly sign anything, if promised drugs as an inducement. Thus a police promise to one on the verge of withdrawal that a signature will earn a ‘shot’ is a clear case of an inducement capable of negating voluntariness.

“Second, a confession signed by one experiencing or on the threshold of withdrawal, or in a weakened post-withdrawal state, would certainly be devoid of voluntariness. The mental state of the suspect-addict during, just prior to, and immediately subsequent to withdrawal is below the rational level inferably necessary to support a confession under the due process clause.”

The mental clarity necessary to understand the concept of a constitutional right is significantly greater than that required to be a mere reporter of events. See Comment, Admissibility of Confessions and Denials Made Under the Influence of Drugs, 52 Nw.U.L.Rev. 666, 676 (1957). Certainly no less is required under the federal standard that the waiver of a constitutional right be an “intelligent” one. See, e. g. Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429 (1966) ; State v. Westbrook, 101 Ariz. 206, 417 P.2d 530 (1966).

And yet, the inquiry cannot stop here, for as has been stated in the most recent Supreme Court case to deal with the problem of confessions elicited by the use of drugs, Townsend v. Sain, 372 U.S. 293, 324, 83 S.Ct. 745, 763, 9 L.Ed.2d 770, 792 (1963) (Justice Goldberg concurring) :

“The petitioner may have been fully aware of what he was doing in confessing and may have suffered no loss of memory, but that is not the issue. The crucial question, and the measure of evidentiary propriety under the Constitution, is whether the drug—whatever label was or was not affixed to it—so overbore the petitioner’s will that he was unable to resist confessing. Whether or not he was conscious of what he was doing, the petitioner could, because of the drug, have been wholly unable to stop himself from admitting guilt.”

The most recent case on the general subject of confessions made under the influence of drugs (and liquor) is Logner v. State of North Carolina, 260 F.Supp. 970 (M.D.N.C.1966). In this case, the Federal District Court vacated the conviction of a prisoner who had been arrested while under the influence of liquor and amphetamine. The court, in Logner v. State of North Carolina, supra, quoted Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961), in which it was stated:

“No single litmus paper test for constitutionally impermissible interrogation has been evolved * * * [t]he ultimate test remains * * * the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may he used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. * * * The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession.”

260 F.Supp. 976

The district court stated further:

“By the applicable standards, a confession is not voluntary simply when it is shown that it is not produced by a promise or threat. A confession is voluntary in law if, and only if, it is voluntarily made.”

260 F.Supp. 976

* * * * * *

“The petitioner in his condition was incapable of acting knowingly or intelligently. Once in custody and when the investigation had focused on the petitioner as the accused, at that moment a cloak of constitutional rights enveloped the petitioner. This cloak could only be removed by some affirmative action on the part of the petitioner and at the time the petitioner was incapable of any such affirmative action. * * * To waive his constitutional rights, the petitioner must be capable of doing so in a voluntary, knowing, and intelligent manner. The petitioner was not in that position.”

260 F.Supp. 977

The same reasoning is equally valid whether the drug itself breaks down the will or whether the pains (or simple anticipation of pains) resulting from the withdrawal of the drug render a person willing to waive his constitutional rights.

I would not hold as a matter of law that the defendant could not have made a constitutionally valid waiver of his privilege against self-incriminaiton. Rather, I would hold that in this case, where the defendant’s addiction at the time of interrogation is admitted, the trial judge, upon satisfactory evidence, must, as stated in Gallagher, make his

“careful and systematic inquiry into the peculiar resilience to questioning of appellant in the light of both his physical and mental health.”

State v. Gallagher, 97 Ariz. 1, 7, 396 P.2d 241, 245 (1964)

It is only after this inquiry has been made, that the judge can properly determine: first, whether the defendant was in a condition so that he could make a knowing, intelligent waiver; and second, if this test is satisfied, whether any “direct or implied promises, no matter how slight,” were made by the police which reasonably caused the defendant to waive his constitutional rights.

The scope of a trial judge’s duty is aptly described in the following excerpt from Gitelson and Gitelson, A Trial Judge’s Credo Must Include His Affirmative Duty To Be An Instrumentality of Justice, 7 Santa Clara Lawyer 16 (1966) :

“The fundamental duty ‘to do justice’ requires the trial judge ‘to be most viligant [sic] and vigorous in protecting individuals, as well as minority and majority groups, against encroachment upon their fundamental liberties,’ though no objection be made by counsel or the right to be unknown to the litigants or their counsel. Whether the proceeding be civil or criminal, the protection of such fundamental rights as life, liberty and property is dependent upon procedural due process. The trial judge’s duty to ensure this-protection is not delegable to either counsel or appellate tribunals.”

For the foregoing reasons, I would reverse the judgment of the trial court and remand the case for a new trial to provide a more thorough and complete inquiry into the voluntariness of the confession.