State v. LaFleur

499 P.2d 756, 18 Ariz. App. 25, 1972 Ariz. App. LEXIS 772
CourtCourt of Appeals of Arizona
DecidedJuly 27, 1972
DocketNo. 1 CA-CR 385
StatusPublished

This text of 499 P.2d 756 (State v. LaFleur) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. LaFleur, 499 P.2d 756, 18 Ariz. App. 25, 1972 Ariz. App. LEXIS 772 (Ark. Ct. App. 1972).

Opinion

EUBANK, Judge.

The defendant was charged by information with two counts of being an accessory after the fact of a murder, in violation of A.R.S. § 13-141. She was tried before a jury, convicted on both counts and sentenced by the court to serve concurrent sentences of one to three years in prison on each count. Defendant appeals from the judgment of conviction, the sentences, from a denial of her motion for a new trial, and seeks review of two questions:

1. Was there a proper preliminary determination as to the voluntariness of inculpatory statements made by defendant to a police officer?
2. Was the defendant subjected to a double punishment in violation of A.R.S. § 13-1641 where the evidence showed [26]*26two principals guilty of a primary crime but only a single crime ?

On the evening of the 23rd of June, 1970, Mark Foust and David Boshears, who lived at the defendant’s home in Phoenix, hitchhiked a ride to the Verde River with one Mario Richardson. Later that evening Foust shot and killed Richardson. Foust and Boshears then drove Richardson’s car back to the defendant’s home, arriving there in the early morning hours of June 24. They awakened the defendant and requested her to follow them in her car. They abandoned the Richardson car some distance from defendant’s home and returned with defendant in her car to her home to spend the night. During the return ride they informed the defendant that they had killed the owner of the car. Foust and Boshears stayed at the defendant’s home off and on during the next few weeks. Some two weeks after the murder, the defendant told her daughter and son-in-law about the incident with Foust and Boshears and that they had admitted murdering Richardson.

On the afternoon of July 28, the defendant was approached at her place of employment by two sheriff’s deputies. After the deputies identified themselves and before they began questioning the defendant, she was read the Miranda1 warnings from a standard police “rights card” and was asked if she understood them. She said that she did and signed the rights card. This card was placed in evidence. The defendant then told the officers about her relationship with Foust and Boshears and their stated perpetration of the murder. Defendant’s arrest as an accessory followed three days later. At the trial a voluntariness hearing was held outside of the hearing of the jury to determine whether defendant’s statement to the sheriff’s deputies would be admitted into evidence. Following the hearing the trial judge held that the statements made to the officers were admissible, having been voluntarily made pursuant to a knowing and intelligent waiver of defendant’s rights to counsel and to remain silent.

Defendant contends that the trial court’s voluntariness ruling was erroneous in that the testimony of the officer at the voluntariness hearing did not show that she had been informed of all her rights, particularly of the right to have counsel present during the questioning; but she concedes that the officer’s testimony before the jury established the full Miranda warnings. The-officer testified at the voluntariness hearing- and from recollection that he had informed', the defendant of:

“. . . the right to remain silent, that anything she might say could and most probably would be used against her in a. court of law; if she did not have an attorney, she could have an attorney appointed for her. I also advised her that at any time during the conversation if she did waive her right, she could refuse to answer any questions, and she could also request an attorney. I also asked her if she understood the rights, and she stated she did. . . .”

Moreover, the officer’s testimony clearly shows that he actually read to Mrs. LaFleur from a “rights card”; that he had her sign the card indicating that she understood the rights enumerated thereon;- and that the card was in the possession of the sheriff’s office at the time of the voluntariness hearing and would be produced as soon as possible. Over defense objection, the trial court accepted the card into-evidence pending its production at the trial. The signed card was then produced for the officer’s testimony before the jury and he testified that all the rights set out thereon: had been read to the defendant, including: the right to counsel during questioning. Thus the voluntariness of her statements-was established prior to their introduction into evidence before the jury.

There is no contention that the statements introduced into evidence were not truthful or voluntary. Defendant merely maintains that the trial judge should not [27]*27have admitted the Miranda rights card into ■evidence prior to its actual production at the trial and that the voluntariness hearing was therefore improperly conducted to her prejudice.

It is clear that the duty to initially determine the voluntariness of a statement or confession rests with the court, .and that this determination must be made ■prior to introduction of the inculpatory evidence at the trial. See State v. Branch, 108 Ariz. 351, 498 P.2d 218 (filed June 16, 1972) ; State v. Costello, 97 Ariz. 220, 399 P.2d 119 (1965). Since the Miranda '“rights card” was introduced into evidence :at the trial, and no attack is made on its veracity, we hold that no prejudicial error •resulted to defendant from the procedure ■employed by the trial court.

The defendant’s second question involves the Arizona prevention of double punishment statute, A.R.S. § 13-1641, which leads:

“An act or omission which is made punishable in different ways by different sections of the laws may be punished under either, but in no event under more •than one. An acquittal or conviction ■and sentence under either one bars a prosecution for the same act or omission under any other.”

Defendant was charged in each of the two counts of the information with a violation of A.R.S. § 13-141, as amended, which leads as follows:

“All persons who, after full knowledge that a felony has been committed, conceal it from the magistrate, or harbor ■and protect the person or persons charged or convicted or whom they have reason to believe committed a felony, are accessories.”

Count I charged, in part, that she “harbored and protected David Boshears, whom she had reason to believe committed a felony, to-wit, murder”. Count II charged her with similarly harboring and protecting Mark Foust.

Defendant contends that the words “person or persons” as used in § 13-141, supra, “clearly contemplates by its language that the defendant commits but a single crime by harboring more than one person.”

Since Foust and Boshears were both principals to the crime of murdering Mario Richardson, the defendant argues that she committed only the single crime of harboring the “persons” (Foust and Boshears) who committed the murder.

Prior to its amendment in 1969, A.R.S.

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Related

Miranda v. Arizona
384 U.S. 436 (Supreme Court, 1966)
State v. Gantt
492 P.2d 1199 (Arizona Supreme Court, 1972)
State v. Costello
399 P.2d 119 (Arizona Supreme Court, 1965)
State v. Branch
498 P.2d 218 (Arizona Supreme Court, 1972)
State v. Tinghitella
491 P.2d 834 (Arizona Supreme Court, 1971)
State v. Andrews
476 P.2d 673 (Arizona Supreme Court, 1970)
Acker v. State
226 P. 199 (Arizona Supreme Court, 1924)

Cite This Page — Counsel Stack

Bluebook (online)
499 P.2d 756, 18 Ariz. App. 25, 1972 Ariz. App. LEXIS 772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lafleur-arizctapp-1972.