[87 Ariz. 218] Martin H. Schulman, Tucson, for appellant.
Wade Church, Atty. Gen., Harry Ackerman, County Atty. of Pima County, Pete M. Rubi and John L. Claborne, Deputy County Attys., Tucson, for appellee.
A jury convicted defendant of robbery, a felony. He was sentenced to prison for a term of 8 to 10 years, and appeals from such judgment.
The victim of the alleged robbery, Lee Roy Allen, met the defendant and another man later identified as Ralph Perkins (who was jointly charged with the defendant, but apparently never arrested and did not appear at any time) on the morning of March 26, 1958, at the Belmont Hotel in Tucson, Arizona, where the three men had separate rooms. They proceeded to have some drinks at a bar and also shared a bottle of wine in the victim's room and after a time the trio went to a jewelry store operated by Louis Montoya from whom Allen purchased a watch in the presence of his drinking companions. Thereafter they returned to the hotel and went to the room of the defendant and the drinking was resumed. According to Allen, sometime during this orgy the defendant and Perkins proceeded to administer Allen a serious beating and they relieved Allen of the watch, an undetermined sum of money and forced Allen to endorse over a social security check in the sum of $30. Defendant was apprehended by the operator of the jewelry store, Montoya, later on the same day when defendant attempted to sell to Montoya the identical watch previously purchased from Montoya by Allen. The complaining witness, Officer John Coffey, had previously informed Montoya of the robbery of Allen and as Montoya held defendant at gunpoint in the shop, the officer was summoned and upon his arrival the defendant was placed under arrest and [87 Ariz. 219] thereafter brought to trial on a charge of robbery.
On appeal the defendant contends the trial court committed error in admitting in evidence a confession in writing and signed by the defendant wherein the defendant admitted his guilt to the crime charged.
Officer Coffey testified in the presence of the jury that after the arrest of the defendant
he was taken to the city jail and booked on the charge of robbery. That the defendant was questioned in the Investigation Division of the Police Department concerning the offense that he had been accused of and that defendant denied all knowledge of such offense. The officer further testified that the next day he again questioned the defendant at the Police Department in the presence of one of the secretaries and without making any promise of immunity or by the use of coercion or duress, the defendant volunteered to tell the truth concerning the offense. That the statement made by defendant admitting his guilt was reduced to writing and signed by him. The written statement was offered in evidence and upon objection being made the trial court excused the jury and permitted the defendant to present evidence on the question of whether the statement was voluntary.
The defendant testified at such hearing that the police officer at the time the statement was taken at the Police Department told him that he would get ten years if he didn't sign the statement; that he was promised money for cigarettes if he signed the statement and that he was warned that if he did not sign, he would be kept in the city jail rather than sent to the county jail and that the food and general conditions at the city jail were highly undesirable in comparison with the county jail. Defendant also testified he was told by the police officer that 'he could get me off later if I come on and cop out'. The defendant further testified that he was scared, and that he had less than a third grade education and that he did not know anything about the facts of the crime and made up the statement because of the threats and promises.
The defendant later testified to these same facts before the jury; and the state failed to offer rebuttal evidence in any manner contradicting the testimony of the defendant concerning the alleged threats and promises made to him at the time he gave the statement offered in evidence.
The trial court, after listening to all the above testimony, permitted the written confession of the defendant to be admitted into evidence. Under the law in this state the admissibility of a confession depends on whether it is freely and voluntarily made. State v. Johnson, 69 Ariz. 203, 211 P.2d 469; State v. Thorp, 70 Ariz. 80, 216 P.2d 415. If obtained through force, [87 Ariz. 220] duress or primise of immunity, it is inadmissible. Wagner v. State, 43 Ariz. 560, 33 P.2d 602. If it appears to the reasonable satisfaction of the trial court from the preliminary inquiry that the confession was not so obtained, it may admit the confession into evidence. Davis v. State, 41 Ariz. 12, 15 P.2d 242. However, if it appears to the reasonable satisfaction of the trial court that the confession was not freely and voluntarily given it should not at the trial before the jury permit the confession to be introduced into evidence. State v. Thomas, 78 Ariz. 52, 275 P.2d 408; Kermeen v. State, 17 Ariz. 263, 151 P. 738; Laub v. State, 24 Ariz. 175, 207 P. 465. While we held in Ramirez v. State, 55 Ariz. 441, 103 P.2d 459, that it was not error for the trial court to refuse to hear evidence as to the voluntary character of the confession in the absence of the jury, we believe the better practice is that such preliminary investigation be conducted in the absence of the jury. (Annotation 148 A.L.R. 546 and 170 A.L.R. 567)
The rule is well settled in this state that whether a confession is voluntary or not is a preliminary question of law and fact for the trial court to determine in the first instance upon a preliminary investigation into the facts and circumstances surrounding the taking of the confession. Kermenn v. State, supra; Laub v. State, supra; Indian Fred v. State, 36 Ariz. 48, 282 P. 930; Galas v. State, 32 Ariz. 195, 256 P. 1053; Ramirez v. State, supra, State of Arizona v. Smith, 62 Ariz. 145, 155 P.2d 622; State v. Romo, 66 Ariz. 174, 185 P.2d 757; State v. Hood, 69 Ariz. 294, 213 P.2d 368; State v. Thorp, supra; State v. Thomas, supra. The trial court's determination of the admissibility of a confession
will not be disturbed on appeal unless Kermeen v. State, supra; Laub v. State, Laub v. State, supra; State v. Thomas, supra. We hold that under the circumstances in the instant appeal the trial court did not abuse its discretion in admitting the written confession into evidence.
We believe the previous decisions of this court definitely outline the procedural steps necessary before a confession may properly be admitted in evidence. Whenever during the course of a criminal trial a confession is offered in evidence the burden is on the prosecution to lay a prima facie foundation for its introduction by preliminary proof showing that it was freely and voluntarily made. Before the confession is received the defendant if he requests it, in the absence of the jury, must be accorded the opportunity to introduce evidence to overcome the prima facie showing. It is the function of the court in the first instance to resolve may conflict in the evidence on the subject, and if the court concludes that the confession was not free and voluntary it has the power and is duty bound to withhold it from the jury's consideration. However, if it appears to the [87 Ariz. 221] reasonable satisfaction of the trial court that the confession was obtained freely and voluntarily, it is within the court's discretion to permit it to be read to the jury; and then to submit to jury, under proper instruction, for its determination the question whether under all the facts and ...