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State v. Steelman9/13/1978
nt the accused, however, from changing his mind and deciding that he wants to talk to the police, and an accused may waive the presence of counsel and law enforcement officers may question him without notifying counsel. United States v. Zamora-Yescas, 460 F.2d 1272 (9th Cir. 1972), cert. den. 409 U.S. 881, 93 S.Ct. 210, 34 L.Ed.2d 136 (1972). But as our Court of Appeals has stated:
"* * * After the initial request for counsel is made, a later waiver by the accused can be voluntarily made, but the State bears a heavy burden of proving the voluntariness of the later waiver and any statements made. United States v. Nielsen, 392 F.2d 849 (7th Cir. 1968). * * *" State v. Grange, 25 Ariz. App. 290, 294, 543 P.2d 128, 132 (1976).
There is, we believe, no question that the defendant did, in fact, waive his right to counsel and that the State has borne the "heavy burden" of showing that the later waiver of counsel was voluntary.
We then have no difficulty with the question of coercion as to the statements made after the note of 10 November. Steelman was informed of his rights. He understood them and he waived them. We find no impermissible conduct on the part of the law enforcement officers at the time the admitted statements were given.
Neither do we find that earlier coercive pressures were carried over to the admitted statements so as to make them the product of prior coercion.
To show that there were earlier coercive pressures, Steelman claims that Douglas Barr's talk to him was impermissible coercion. Use of a friend to obtain a confession was held to make the statement involuntary in Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959). Spano is not directly applicable since Barr did not obtain a confession.
Steelman also contends that he was promised by Sergeant Bunting that if Steelman cooperated with Arizona authorities, he would avoid the death penalty. At the hearing, the officer stated that he had told Steelman that he would be charged in Arizona and he should keep in mind that the State had the death penalty while considering whether to talk with them. About ten hours after this conversation, Steelman made his first incriminating statement to law enforcement officers. He talked with Maricopa County officers at length on the condition that the statement could not be used in California. This was immediately followed by a statement to Pima County officers wherein Steelman stated that the death penalty was a factor in his decision to make a statement.
A similar question was presented in State v. Jordan, 114 Ariz. 452, 561 P.2d 1224 (1976), remanded U.S. , 98 S.Ct. 3138, 57 L.Ed.2d 1157, (1978). In that case, it was held that a statement about the death penalty must clearly be a promise and must have been relied upon by the defendant in making the statement. The statement at issue in Jordan was not clearly a promise because it was expressed as a possibility and the opinion of the officer. In the instant case, there was not even that. Even though Steelman indicated he thought it was a promise, a fair reading of the statements at the time he was interrogated as well as Steelman's statements at the suppression hearing indicate that not only did he not have any justification to rely on the officer's statements that he would not receive the death penalty if he talked, but that he did not in fact rely on them.
Steelman also contends that his physical condition exacerbated any pressure created by the interrogations to the point where they became unduly coercive. The trial court specifically found that the drug intoxicatio
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