State Ex Rel. Berger v. Superior Court ( 1970 )

HAYS, Justice.

Terryll Scott Merritt, real party in interest and defendant below, was charged in the Tolleson Justice Court with the crimes of burglary and grand theft. Thereafter, on January 9, 1969, the Maricopa County Public Defender was appointed to • represent defendant at the preliminary hearing and in all further proceedings.,

The matter was set for trial on November 6, 1969, at which time a voluntariness hearing was held, outside of the presence of the jury, to determine whether certain alleged statements of the defendant were admissible at trial. After hearing the evidence, the Honorable Morris Rozar, Judge of the Maricopa County Superior Court, ruled that the challenged statements were involuntarily made and were thus inadmissible. The State then petitioned this Court for a Writ of Certiorari, which we granted on December 23, 1969. Having reviewed the record of the voluntariness hearing below, we remand this cause to the trial court for proceedings not inconsistent with this decision.

At the voluntariness hearing, sheriff’s deputies Dave Arellanes, Jim Kepner and Tom Ennis testified as to certain statements which the defendant allegedly made to them after defendant had appeared before the justice of the peace, been incarcerated, and had counsel appointed for him. Pursuant to requests by the defendant sent from the jail indicating he wanted to talk about his case, Arellanes and Kepner engaged in three separate conversations with defendant on the days of January 12th, 19th and 20th, 1969. Immediately before each of these conversations, the sheriff’s deputies read to defendant the standard Miranda warnings. These warnings were contained on a printed card, which read as follows :

“You have the right to remain silent. Anything you say can 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 right to have an attorney appointed for you prior to questioning.

Do you understand these rights?

Will you voluntarily answer my questions ? ”

On each occasion defendant initialed or signed the printed card prior, to making: any statements. On each occasion defendant made oral statements to the deputies concerning the alleged crimes. Defendant’s counsel was neither present at nor contacted prior to any of the conversations. The sheriff’s deputies were aware that a deputy public defender had previously been appointed in defendant’s behalf.

In his response to the State’s petition for Writ of Certiorari, defendant acknowledges that Judge Rozar’s ruling was based on the Court of Appeals decision of State v. Herman, 3 Ariz.App. 323, 414 P.2d 172 (1966), a case with facts quite similar .to the present case. Herman holds that where a defendant has retained counsel from the time of his arraignment, “the defendant may not be questioned outside the presence of counsel without counsel’s permission.” 3 Ariz.App. at 327, 414 P.2d at 176. The decision concludes that statements elicited from a defendant, without the presence or approval of defendant’s counsel, are inadmissible as a matter of law. By our holding today we expressly overrule that portion of State v. Herman which is inconsistent herewith.

Our Federal Courts have consistently held that voluntary confessions are not barred by the Fifth Amendment to the U. S. Constitution. A confession is not made involuntary by the mere fact that it was made outside the presence of an attorney. In enumerating its standards for voluntary confessions in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the U. S. Supreme Court stated the following:

“In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element of law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether .he. can be interrogated. There is no requirement that the police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” 384 U.S. at 478, 86 S.Ct. at 1630, 16 L.Ed.2d at 726.

Thus, Miranda recognizes that a suspect may waive his Fifth Amendment rights at any time, provided the waiver is voluntary, knowing and intelligent.

In Reinke v. United States, 405 F.2d 228 (9th Cir. 1968), the Ninth Circuit Court of Appeals reached the same conclusion which we reach today. In Reinke the defendant was convicted, in the U. S. District Court for the District of Arizona, of interstate transportation of a stolen motor vehicle. While in jail, and after his attorney had been appointed, he made incriminating statements to an FBI agent. On appeal, the Ninth Circuit held that the statements were voluntary and admissible, even though the agent knew that counsel had been appointed and failed to obtain counsel’s permission to proceed with the interview, because the accused had affirmatively initiated the interview, the appropriate Miranda warnings had been given, and the accused fully understood his Miranda rights.

From the testimony at the voluntariness hearing the court could well have found that the defendant had voluntarily and intelligently waived his right to the presence of his appointed counsel. We hold that there is no magic formula of words nor pre-ordained ritual which must be invoked in order to accomplish this waiver, as long as there is a satisfactory showing that the defendant did so willingly and with an understanding of what he was doing.

The defendant at the hearing gave testimony from which the court could infer that his statements to the deputies were made under the pressure of his being placed in the “hole.” The trial court’s order leaves unclear whether or not its finding of involuntariness was based on the mandate of the Herman case, supra, or on the other facts presented at the hearing. It is for this reason we consider it appropriate for the trial court to re-examine this matter and make a specific finding as to whether the circumstances of taking the statements were so oppressive as to render such statements involuntary.

This case is remanded to the trial court for proceedings not inconsistent with this decision.

STRUCKMEYER, V. C. J., and UDALL, J., concur.