*1
support
findings
the
before the trial court in
tends
below.
The evidence
Spencer,
hearing
presence
jury
of the
out
certain HATHAWAY, J., MOLLOY, J., C. and of an automobile which was connected concur. charged. The stated that
the offense officer first that he was
the defendant at denied automobile, of the but that
the owner admitted the vehicle was
defendant later
his. hearing, testi- At this same being advised of fied he did not remember Arizona, Appellee of The STATE ques- rights, that he was asked and no Cross-Appellant, time, nor did he make tions statements. Appellant HUNT, E. Maurice permitted testify be- The officer was Cross-Appellee. first de- fore the No. 2 CA-CR 113. he and then admitted that nied Appeals of Court Arizona. vehicle, and it is the admission owner 24, 1968. testimony which defendant com- of this Oct. plains. Rehearing Denied 1968. Dec. foregoing The trial court found Review Denied Jan. made, voluntarily beyond a statements were only evidence bear- reasonable doubt. that the de-
ing the issue before us is responded questions, to certain
fendant response no to others. made opinion that a fac are presented de
tual issue is whether to be inter
fendant indicated desire not response
rogated, his silence to certain questions being ambiguous. The
of the necessarily fac
trial court determined this of the wit:
tual issue in favor
That the defendant did not indicate a de interrogation end.
sire that to an come province
It is the trial court disputes
to resolve factual in voluntariness
hearings, appeal the evi and on where conflicting in conflicting where
dence therefrom, evi
ferences be drawn can must construed in manner which
dence be
516
Gary Nelson, Atty. Waag, Gen., K. Carl Atty. Gen., Asst. appellee and Phoenix, for cross-appellant.
Mesch, Marquez Rothschild, by Al- & Tucson, Marquez, appellant fred for C. cross-appellee. and HATHAWAY, Judge. Chief arising appeal problems This with deals out Hunt of the of Maurice E. second wife, Hunt, and Ernestine husband and W. who one were tried to a on count aggravated battery one assault and contributing count dependency five-year-old their daughter, acts al- Tina Hunt. The were legedly on about November committed thereto. first from the appeal An taken was decision, trial, culminating in this court’s Hunt, Ariz.App. On reversing convictions. trial, Ernestine W. second E. guilty counts. Maurice found of both defendant, was Hunt, hereafter called battery acquitted aggravated assault and guilty contributing but found dependency of a minor. delinquency and that conviction. appeals He substantially forth in our set facts are repeat will not opinion and we former them, except necessary insofar as sheriff. It would be a misconstruction proper dealing questions presented of the facts to contend that the defend- leave, appeal. ant been free to would have for suspect ap-
she was the obvious in an TRIAL COURT PROPERLY parent DID THE de- murder which the sheriff’s A CON- EVIDENCE ALLOW OF partment investigating. For VERSATION BETWEEN OFFICER reason must determine BERNAL & WHICH DEFENDANT imperative law enforcement of- TRANSPIRED BEFORE DEFEND- ficers to inform the involved OF ANT HAD BEEN ADVISED right of her to remain constitutional ? CONSTITUTIONAL RIGHTS HIS pursuant privilege against silent *4 self-incrimination.” at The use defendant contends that had with a conversation which he The us therefore Bernal, when investigating officer, an Ben (1) become: Was Dr. Hunt “free to residence, first Bernal arrived the Hunt (2) leave?” he suspect the Was “obvious State of was violation of Escobedo in in apparent” an crime? the We believe Illinois, 378 U.S. 84 S.Ct. compel facts affirmative answer to (1964), v. State L.Ed.2d 977 and Miranda First, negative a answer (2). De Arizona, 384 U.S. 86 S.Ct. tective Bernal testified that his reason for not since had L.Ed.2d 694 going to the Hunt residence was “to as rights apprised been of his constitutional certain girl the circumstances” little of a pro prior the the conversation. If in a furnace room with her hands tied. passed “investiga ceedings had death, shooting prima Unlike a a facie prior tory” stage “accusatory” stage, crime is not established as the court as conversation, have defendant must Indeed, sumed in the Anderson case. effectively warned of his constitution Hunts a were not arrested until about rights. Miranda, al In “ex the court Also, question. month after the events in plained” the rule Escobedo in connection there is no reason to believe the de interrogation.” with “custodial court restrained, fendant would have been as held that statements obtained in “custodial court assumed Mrs. Anderson would have interrogation” could not later used be been, had desired to leave. The fact is trial, “procedural a criminal unless that he and return did leave room two ex safeguards” had been The court met. and, during questioning or three times plained : stated, month not arrested until a “By mean interrogation, custodial that the facts before later. conclude questioning by initiated law enforcement the hold bring us do not case within person a taken officers has been after Anderson, ings Miranda or Escobedo. custody or deprived into otherwise Tellez, Ariz.App. As we said in State any significant action in freedom of (1967): 431 P.2d way.” (Emphasis added) “* ** point where we believe Supreme Our Court has held given must is when warning the * * * be by may “Miranda” rule be violated police both reasonable [the interrogation in one’s own home. has been grounds that a crime to believe Anderson, 428 P.2d is the that the defendant committed and There, her defendant shot it], for from one committed who in their husband home asked and then expected point police can be forward police. else to someone call the Our Su defendant against case pursue preme Court said: fo- police must have vigor. “In the instant case the the crime so generally cused interrogated deputy in her without they home cause for arrest would have * * * in a dilemma because placed The time caution court warrant. Every- apparently made. was often
is when the arrest could be evidence Count reasonably The trial court prior may prejudicial on Count 1. thing time de- problem favor of the general on resolved be 'the the scene considered objec- consistently sustained permissible under fendant questioning’ which is ” * * * testimony injuries Tina's to other tions Miranda. November 9. which had occurred Ariz.App. Noriega, See also State v. complain. therefore cannot we held where exclusionary rule of Miranda does RE- ERR IN THE COURT DID TRIAL ques- apply where asked the defendant was A MISTRIAL TO GRANT FUSING tions in a relaxed his own home situation IMPROPER AFTER ALLEGEDLY family present. with his BY QUESTIONS ASKED WERE THE PROSECUTOR? AL- DID THE ERR IN TRIAL COURT ex the State’s In RELAT- the course of TESTIMONY LOWING Pullen, Tina’s concerning TINA of Dr. amination ING TO WHICH INJURIES prosecutor injuries, BE- asked: HAD ON NOVEMBER WAS CAUSE TESTIMONY you opinion whether “Q Do have an IMMATERIAL IRRELE- be and unreason- AND/OR excess would *5 VANT? purposes? disciplinary able for Tina had on November concerning the nature to defendant’s have tends This injuries cause which was not as Miss to the assault her testimony revealed that Tina had been committed he it Hengsteler, condition on November 2. constituted daughter’.s evidence charged. and prior on November maid November battery, charged condition, testified was Defendant 1963, compared who discovered injuries which bad prejudicial acts with 2, 1963. 9, be- other con- proper, being ultimate tained The first and jury, Objections Q Q [*] [*] and Well, Do this child should be home you did not is [*] [*] do or an unfit home have any answers you the third not in this these call [*] [*] have an opinion questions [*] [*] questions for questions ?” opinion the witness’ returned could be condition? as to whether [*] [*] were whether are to given. [*] [*] sus- im- ex- remained questions pertise. Since testimony may have Though this court unanswered, the trial agree we with was, prejudicial it been to the defendant a mis- grant reason to there no was nevertheless, was The defendant relevant. trial. battery, com charged assault and complains of and con mitted on November also The defendant delinquency tributing dependency cross-examina or of him on questions asked day pertained No treat Tina “on about the 9th to his or The tion. vember, 1963, prior to during times week and various ment of Tina added) went (Emphasis thereto.” Since evidence 1963. This November dependency delinquency count, previously contributing as we the second time, period the State ad charge noted, covers a should have been properly and put on evidence of other was entitled to mitted. he had to establish that
acts which tended posed problem A more serious dependency or delin contributed to question examination by asked on quency of Tina. Davison, juvenile probation of Mrs. asked, prosecutor The there ficer. “What if We believe time, present it the Tina Hunt’s status at regard that was to prejudice in this prosecutor parents?” The trial who are her The rather than defendant. against testimony by the court Foote’s had been warned counter defense position it eliciting testimony because such Tina fell and often bruised easily. it prejudicial, highly irrelevant and since Mrs. Foote testified that the scratch court tended to show another bruise were not usual. home was already that the Hunt determined Mrs. Foote would not quali- have been
unfit. fied to testify concerning these matters prosecutor action on defended his if it had not been shown that she had had ground ample that was his belief opportunity to observe Tina’s be- serving fact that Mrs. Foote was havior and health. It was therefore neces- already a fact sary, foster mother of Tina was purposes, foundational to show evidence. The record reveals that Tina had living with her since belief, apparent- though correct in this December, 1963. As previously noted, ly do counsel for not believe that this information created following disagreed court wtih him. reversible error. and Dr. dialogue prosecutor between DID THE TRIAL COURT ERR RE- IN testimony
Thompson place prior to the took FUSING TO DIRECT A DEFENSE of Mrs. Foote: VERDICT BASED ON ABSENCE “Q you, brought And she comes or is OF SUBSTANTIAL EVIDENCE you needs to see a when she TO SUPPORT A CONVICTION OF doctor ? CONTRIBUTING TO DELIN- A Correct. QUENCY OR DEPENDENCY OF A Q mother feels she When her foster MINOR? doctor, needs to see a is that cor- of “con- was convicted rect? tributing dependency *6 A Yes. child,” of a 13-822, as defined A.R.S. § mother, Mrs. Q her You know by foster A.R.S. 13-821. 13-822 A.R.S. § § Foote? provides, part: (Emphasis added) A Yes.” causes, person act, by any “A. A who encourages depen- or contributes to Had the been informed jury dency child, delinquency cus- or of a as de- deprived of judicially Hunts had been by 13-821, any fined or who cause is tody Tina, perhaps trial should of a new for responsible However, guilty mis- is no of a granted. there have been therefor * * (Emphasis added) demeanor Tina’s “fos- showing that the reference to than that ter mother” indicated more charged The defendant was with con- deprived temporarily of Hunts had been tributing dependency both to the and de- Custody 8-225, custody. her See A.R.S. § linquency Tina of Hunt. The definitions also, Pending Hearing. A.R. of Child See applicable of these terms which are already ap- jury S. 8-510. The § case, by the facts provided of this prised that fact Eernal testified of when A.R.S. are as follows: § custody.” that he “took Tina into article, In “A. unless the context required: otherwise ERR IN AL- DID TRIAL COURT MRS. ‘Dependent person’ per- TESTIMONY OF LOWING “1. means a LIVED age eighteen years: FOOTE THAT TINA HAD under the son of DECEMBER, HER WITH SINCE ******
1963? home, by neg- “(g) reason Whose of lect, cruelty depravity parents, or his of witness Mrs. Foote called as :|: ** or either them unfit of is an brought Tina be had after defendants place person. for such a bruise a scratch and fore the on her face. offered Mrs. [******] “Furthermore, the fact that because of any act means ‘Delinquency’ “C. pipes and there were hot water injure the or tends debase which room, they felt forth so a child.” morals, health welfare necessary hands to bind her occa- contributory As to sionally keep doing herself her from necessary it was count, prior law under harm, burning forth.” herself so way in some the child was prove (Emphasis added) State, Ariz. delinquent. Jackson He also the anti-con- testified Durgelogh (1930); P. 824 “mysoline” drug vulsant which Dr. Plunt State, P. Ariz. prescribed (implying Tina for delinquency is proof of Allegations and/or might some restraint of the child statute, present necessary under necessary protection) for her own State, Ariz.
however. Loveland v. unnecessary and was discontinued. ; Brockmueller (1939) (1959). No P.2d 992 Finally, that, Czerny Dr. testified dur- child is neces injury proof actual ing period observation of only need sary; act of Tina, she did not tend seek with- morals, injure "tend” "debase or in dark places. drawal a child.” health or welfare of 3. Detective Bernal testified that Dr. (1963); Locks, Ariz. Hunt admitted that “hit he had Tina 13-823. A.R.S. § face,” across the and defended that ad- 13-821 of A.R.S. §§ Construction mission saying, “She doesn’t mind. 13-827 by A.R.S. governed 13-822 You don’t know Tina.” part: provides, which testified, Mrs. Foote in rebuttal to liberally be shall “A. This article witnesses, defense that Tina did not state in favor of construed easily bruise normally and healed when neglect or child protection cut and trial, bruised at the time of n duty toward parental omission that “she is child,” not a difficult children of child, protect and also to that she actually “showed a fear” of improper the effects of the state from closets rather than affinity' for dark example of conduct, acts or bad places. cause, may be calculated person which *7 the hand, On other the defendant es- depend- to, the encourage, or contribute tablished the following: children, although ency of way related to person is in no such part 1. He took in the no November added) (Emphasis child.” beating 9 itself and he was not aware plight day of of the child on that record, favor- considering most In (His until Detective Bernal arrived. conviction, find: ably sustaining the to pronoun use of the in describing “we” Hunt that Dr. 1. testified Dr. Pullen day events to Drs. Pullen the furnace put “we her in told him Czerny apparently due ** room, we hands tied her fact that it family problem, was a rather (Emphasis added) any part than in may have had those events.) Dr. Czerny Dr. testified 2. in put “often” him Tina was told medical sought The Hunts 2. room, recommendation on the furnace Tina in for psychiatric care seemed that she psychiatrists, “and past. area.” like it in this darkened to testimony indicates The medical 3. that Dr. Czerny testified also Dr. on Tina No- hospitalization of him: Hunt told
521
good reason”);
night
apparently
“without
ultimately deter-
9, although
vember
People
Pierson,
may
176 N.Y.
68 N.E.
unnecessary,
v.
to have
mined
pro-
(1903) (failure
beating on
63 L.R.A.
187
only to the
been due
attention,
religious grounds,
vide medical
on
Dr. Pullen testified
9th.
Clark,
La.
arm,
apparently
child);
sick
v.
146
for
State
injury
the left
which
provide
hospitalization,
(1920) (failure
83
cause for
So. 696
main
child,
opinion. There
de-
though
in his
for
even
mother made no
injury
was a recent
Seleina,
source of
mand
v.
support);
evidence of
for
Seleina
no
beating
No-
injury
Dom.Rel.Ct,
(1949) (con-
other than the
on
42
93 N.Y.S.2d
Hengsteler and
undermining
vember
Both Miss
disci-
viction of father
for
not
Dr. Hunt testified that the arm was
pline
by telling daughter not to
of home
in that condition
;
November 9.
Peo-
mother)
mind her
Cross v.
See also
ple,
(1950)
122
Colo.
A.R.S.
§§
construction
The liberal
(Okl.Cr.App.
Cox v.
270
373
by A.R.S.
13-822, required
§
13-821 and
1954).
for
the state
13-827, “in favor of
neglect or
the child from
protection of
seriously
though
not
Even
accord
duty” is in
parental
omission of
part
actually took
contended that Dr. Hunt
jurisdic
all other
in almost
with the law
beating
in the
the child
November
on
Bradley
country.
v.
Cf.
in
tions
con
still
that he
record
indicates
(Ky.1964)
Commonwealth,
380 S.W.2d
daughter.
sented
such
treatment of his
in
defense of
pay,
(failure to
without
beating
He
decree
defended
action in
ability,
support under divorce
his wife’s
child
contributory
delinquency);
child,
constitutes
asking
when Bernal was
him
No.
District
ex
Shoreline School
rel.
injuries, by admitting
about
the child’s
Court,
Superior
Wash.2d
that he had
beat
child himself and
denied,
346 P.2d
cert.
implying
child,
opinion,
in
4 L.Ed.2d
U.S.
80 S.Ct.
deserved
a beating.
such
He
told
also
child
(refusal,
religious grounds
to send
Czerny
Dr.
placed
that Tina was “often”
schools,
compul
public
violation of
in the
suggestion
furnace room at the
statute,
sory
contrib
education
constitutes
psychiatrists—an extraordinary suggestion
Lowell,
;
utory
People
delinquency)
when one
danger
considers the
from hot
Cal.App.2d
pipes,
water
a furnace and a water heater.
(prosecution
de
may
acts of
introduce
We feel that
foregoing
is sufficient
may
delin
fendant which
contribute to
to sustain the conviction under either A.R.
quency
though
specified
of child even
13-821,
S.
Al(g)
subsec.
or A.R.S. §
Deibert,
information);
People
C, supra,
subsec.
in that
the de
Cal.App.2d
P.2d 355
fendant contributed
providing
an unfit
(conviction
contributory delinquency
home which
injure
tended to
the health
acquiesced
affirmed where
owner
tavern
or welfare of the child.
beverages
sale of
alcoholic
minors
*8
Voice,
establishment); People
in his
v.
DID THE TRIAL COURT ERR IN NOT
Cal.App.2d 610,
(1945)
68
would a conviction sustain fore dependency is evi- COURT tory delinquency or PROPERLY ALLOW EVI- " DENCE,” etc., battery. following: we have dence As insert of assault noted, there evidence that Dr. cruelty home
contributed to the
oí
DID THE TRIAL
ERR
RE-
COURT
IN
a
on
enough
and that
is
conviction
TO GRANT DEFEND-
FUSING
though probably immaterial
Count 2 even
ANT’S MOTION FOR SEPARATE
Codina,
People
to Count 1.
v.
Cf.
TRIALS?
356,
also
(1947).
Cal.2d
523 cutor, Haffa, jury, 246 in summation constituted State v. Iowa 71 N.W.2d . (1955) 35 error: reversible argument it is true that While bring “I have tried to evidence before as to evidence been ex which has you, all the evidence There I could. court, by the or after ob cluded withdrawn are things get certain that we can’t evidence, jection, may simply or not * * (Emphasis supplied) State, error, constitute reversible Canova v. ; (1947) 207 404 Tex.Cr.R. S.W.2d infers The statement Stapleton 107 Tex.Cr.R. his child misconduct toward guilty Perez, supra, (1927); People S.W. 578 v in addition ways or instances in other vague statement We do not feel agree again those described trial. prosecution this case made conduct that such with the defendant prejudicial reversal. sufficiently to warrant not it. We improper do condone and we authority, and The defendant cites no People Perez, 58 Cal.2d agree any, similar are to find unable in which A.L.R.3d Cal.Rptr. reversible statement has been held to be prosecutor’s duty toward as to Cutlip, 131 error. W.Va. See duty, fair It is our of a trial. assurance United (1948); Holt v. 46 S.E.2d however, a fair determine whether States, L.Ed. 218 U.S. S.Ct. had, perfect. not whether it was