State v. Scholtz

791 P.2d 1070, 164 Ariz. 187, 53 Ariz. Adv. Rep. 31, 1990 Ariz. App. LEXIS 19
CourtCourt of Appeals of Arizona
DecidedFebruary 6, 1990
Docket2 CA-CR 89-0508
StatusPublished
Cited by2 cases

This text of 791 P.2d 1070 (State v. Scholtz) 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. Scholtz, 791 P.2d 1070, 164 Ariz. 187, 53 Ariz. Adv. Rep. 31, 1990 Ariz. App. LEXIS 19 (Ark. Ct. App. 1990).

Opinion

OPINION

HATHAWAY, Judge.

Appellant, a juvenile at the time the alleged crimes were committed, was ordered transferred to superior court for prosecution as an adult and stipulated that the matter be decided by the court upon the record. The trial court found appellant guilty of premeditated murder, felony murder, armed robbery and theft. Appellant was sentenced to life imprisonment on the first two counts and concurrent terms of eight years and four years, respectively, on the remaining counts. He argues on appeal that the trial court erred (1) in finding his statements were voluntary, and (2) in applying a preponderance standard to determine voluntariness.

FACTS

On September 26, 1987, the Yavapai County Sheriff’s Office sent Detective Cul-lins to investigate a report that there was a board with nails sticking out of it and a blood covered baseball cap on Owl Slick Road. Upon arrival, Cullins found the board and followed blood-spattered drag marks to a ditch beside the road in which she found the body of a man with a single gunshot wound to the head.

On September 28, 1987, an investigator with the Yavapai County Attorney’s Office, Saravo, contacted a neighbor of appellant’s mother who reportedly had information about the shooting. That information implicated appellant and his friend. It was further reported that appellant and his friend had taken a truck to Phoenix and were staying with friends of appellant in Tempe. That address and phone number were relayed to the Tempe Police Department.

The Tempe Police Department dispatched an officer to that address. He drove past the home twice. The second time, he saw a truck belonging to the shooting victim in Yavapai County, which had been reported stolen. Appellant was outside the resi *188 dence and was arrested in connection with the stolen truck. He was transported to the Tempe City Jail.

While appellant was being transported, his mother, attempting to reach her son, called the Tempe residence at which appellant had been staying and spoke with the arresting officer. While it is clear that appellant’s mother was told he was being transported to the Tempe City Jail, the evidence is in conflict regarding whether she was informed that her son had been arrested and the nature of the charges against him. There is also conflicting evidence of appellant’s mother’s diligence in trying to reach her son. It is undisputed that she remained in Cottonwood and used her neighbor’s phone for messages.

Once in custody, appellant was placed in a segregated cell away from adult prisoners, and after approximately two hours, appellant was questioned by the Tempe officer for about 15 minutes. He was read his Miranda rights from a juvenile rights form containing explanatory information in simplified language. 1 The form included a statement that a juvenile’s case might be transferred to adult court for prosecution and a question asking the juvenile if he wished to have a parent or guardian present. It is undisputed that appellant indicated that he understood his rights and agreed to speak with the arresting officer. The evidence is conflicting as to whether he waived his right to have a parent or guardian present. It is undisputed that appellant was not advised that he was under suspicion of homicide.

The Yavapai County authorities were informed that appellant was in custody and Cullins and Saravo arrived at the Tempe Police Station to interview appellant about one and one-quarter hours after his interview with the arresting officer. Appellant was again advised of his Miranda rights and that he had the right to have a parent or guardian present, to which he responded: “Well, my Mom’s in Cottonwood. As far as I know.” Saravo then said: “Okay ... Ah, let me talk to you first shortly. Will you talk to us?” Appellant agreed. During the interview, which lasted approximately one and one-quarter hours, appellant made inculpatory statements.

Appellant had dropped out of school after the 10th grade. During the transfer hearing, the state’s expert testified that appellant was average in intellectual functioning and above average in abstract conceptual thinking without evidence of thought disorder or impaired judgment. The defense expert testified that appellant had a dependent personality. It is undisputed that appellant appeared calm and remained unemotional throughout the interview.

VOLUNTARINESS

Appellant argues that the trial court should have suppressed his inculpatory statements because they were involuntary. He asserts that his age and the absence of a parent during questioning are extremely important factors in determining voluntariness. In the Matter of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Appellant agrees that our courts have held that the presence or absence of parents at the time of confession is only one factor under the totality of circumstances test adopted in Arizona in determining the voluntariness of a juvenile’s statements. See State v. Rodriguez, 113 Ariz. 409, 555 P.2d 655 (1976); State v. Hardy, 107 Ariz. 583, 491 P.2d 17 (1971); Matter of Appeal in Maricopa County Juv. Action #J-84357, 118 Ariz. 284, 576 P.2d 143 (App.1978).

Appellant contends that the absence of a parent or the failure to allow consultation with a parent or guardian prior to questioning should render a juvenile’s inculpatory statements inadmissible. He cites support from jurisdictions outside Arizona for this proposition. Some of the cases cited-are from jurisdictions which follow an “interested adult” rule in determining whether a juvenile’s statements are voluntary. It is well-settled that such a per se rule of exclusion is not the rule in Arizona. Matter of Appeal in Maricopa County Juv. Action

*189 #J-84357, supra. Cf. State v. Crivellone, 138 Ariz. 437, 675 P.2d 697 (1983).

Other cases cited from jurisdictions applying a totality of the circumstances rule involve fact patterns in which the juvenile either had a parent present or a parent had been contacted and advised of the charges. In those cases, that factor was among others which led the respective courts to their voluntariness findings based upon the totality of the circumstances. Under such a test, no one factor is controlling. Among the factors which may be considered are:

(1) The chronological age of the juvenile.
(2) The apparent mental age of the' juvenile.
(3) The educational level of the juvenile.
(4) The juvenile’s physical condition.
(5) The juvenile’s previous dealings with the police or court appearances.
(6) The extent of the explanation of rights.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Huerstel
75 P.3d 698 (Arizona Supreme Court, 2003)
State v. Jimenez
799 P.2d 785 (Arizona Supreme Court, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
791 P.2d 1070, 164 Ariz. 187, 53 Ariz. Adv. Rep. 31, 1990 Ariz. App. LEXIS 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-scholtz-arizctapp-1990.