Free Response - District Court of Arizona - Arizona

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II

TERRY GODDARD
ATTORNEY GENERAL

2 (FIRM STATE BAR No. 14000) 3 AARON J. MOSKOWITZ
ASSISTANT ATTORNEY GENERAL CRIMINAL ApPEALS SECTION 1275 W. WASHINGTON PHOENIX, ARIZONA 85007-2997

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TELEPHONE: (602) 542-4686
(STATE BAR NUMBER 022246)

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RESPONDENTS

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ATTORNEYS

FOR

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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA
WILLIAM FLOYD SMITH,
Petitioner, -VS

CIV 04-573-PHX-FJM (MS)

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DORA B. SCHRIRO, et aI., Respondents.

EXHIBIT I, PART 5, PGS. 160-183 FOR ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS

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going to call Detective Powers tomorrow.
THE COURT:

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Ms. Bowen, are you prepared to

go forward with a voluntariness hearing now as opposed
to 1:15 tomorrow?
MS. BOWEN:

It doesn't matter, Your Honor.

I don't know if it's going to take three minutes, but MR. GRIFFITH: to about 90 percent of it.

We are willing to stipulate The only question is, very

late in the interview -- I don't have any challenge to the voluntariness until late in the interview.
THE COURT:

Okay.

Let's proceed with the

voluntariness if'you are ~eady, Ms. Bowen. Would you go ahead, please, give me the background or foundation for the statement taken of your client by the agent or the law enforcement ,officer. MR. GRIFFITH: Sure. The law enforcement

officer served a search warrant on my client's home, and was looking for various items, such as hot chocolate and drugs and things like that. He picked up Mr. smith who

was polite and cooperated with him, agreed to go down to be with him so-to-speak, attempted to answer questions by him. Detective Powers. asked my client if, if he My client agreed and was And another

would answer the questions.

voluntarily talking to the detective.

point, another detective comes in the room, doesn't

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really say anything, just kind of sitting there. Miranda warnings are read and my client even

The
as I

--

understand it, although I have not seen it, as I understand it -- even signed a document indicating that he knew and understood his Rights and that he was voluntarily there. It wasn't until where, most of the

way through the interview, on page 8 of 18 of the

interview that Mr. smith says, gees, now I'd like to
call home.

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And the detective says, well, we will wrap And then there is another

this up then you can call. delay.
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And I think then there is a discussion about the

polyg~aph~about taking a pOlygraphitest, which I don't think -- really think is irrelevant.
.

Another thing that happe~s is they go off

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the tape for

,

a While and Powers says, well, II'm pretty

well done but there are some things that need to be
cleared up arid do you agree.

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Then Mr. smith's response

is unintelligible.

Mr. smith informs me that it was not So it's our contention after

an affirmative response.

there smith says, I'd like to make a telephone call and Powers, says, no, wait, we will take care of that later. Then after that, that's no longer voluntary.
THE COURT:

All right~

Ms. Bowen, you

have Detective Powers here, who I assume conducted the

interview of Mr. Smith?

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MS. BOWEN: THE COURT:

That's correct, Your Honor. If you can go ahead and

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present any testimony relevant on this issue through Detective Powers.
MS. BOWEN:
THE COURT:

Sure. Detective Powers, if you would

come forward then and be sworn by the clerk, we will have you present your testimony.
(Witness sworn) THE COURT: MS. BOWEN: Go ahead.

Thank you.

'R 0 B E R T

POW E R S

called as a witness herein, having been first duly sworn, was examined and testified as follows:

D IRE C T BY MS. BOWEN:
Q.

E X A M I N A T ION

Detective Powers, do you recall the

portion of the conversation Mr. Griffith has just described?
A. Yeah.

I was just looking at it in my copy

of the transcript.

Q.

At the time that you're talking with

Mr. Smith, who else is present in that room?

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A.
Q.

Detective Young. Is he actively participating in the

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discussion?

A.

At that point, I believe he was merely

sitting there observing.
Q.

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And any time during your conversation with

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Mr. smith did he ask to speak with an attorney?
A.

No. Did he tell you he wanted to discontinue

Q.

the conversation he was having with you? A. No. It's my understanding that he did ask to

Q.

use the telephone; is that correct?

A. Q.

That's correct. Did he indicate to you who it was he

wanted to call?

A.

Yeah.

I believe he stated he wanted to

call his wife at home.

Q.

Did he give you the reason why he needed

to call her at that time? A.
Q.

I don't recall that.

Did he indicate that his wife was a legal

consultant or someone he would consult for legal
purposes?

A.

No.

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Q.

Did you allow him to use the telephone at

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that time?
A.
Q.

No.

Was there a reason why you did not allow

him to use the telephone? A. Just that we were basically through the

interview and, as I recall from what I just observed looking at the transcript, I think we were pretty well through it and I stated, we will be wrapping this up in a few minutes, then he can make a call.
Q.

Do you know how long that particular part

of the interview went on?

A.
Q.

Perhaps another five or ten minutes. I'd like to show you what has been marked
May I approach? Yes.

as Exhibits 6 and 7.

THE COURT:

MR. GRIFFITH:

Your Honor, I'll stipulate

that's a transcript of the interview for purposes of this hearing.
THE COURT:

All right, thank you.

Defense counsel stipulated to the

transcript of the interview statement by the Defendant,
on which date, Counsel?
MS. BOWEN: THE COURT:

I never got a date. Saturday, July 9th. Thank you.

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6

BY MS. BOWEN:
Q.

Exhibit 6 is the first part of that

interview, correct, the first portion of the tape
recording? A.

That correct.

That would be from the side

A of the microcassette recording.

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Q.

It goes on for 35 pages of type-written

transcript; correct? A. That's correct. Now, the second portion, Exhibit 7, is

Q.

from the side B of that same tape; correct?
A.

That's correct.
That goes on for 18 pages? Correct.

Q.
A.

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Q.

At the time that Mr. smith is asking to

speak with his wife, you're on page 8 of this type-written portion of this interview; correct?
A.
Q.

That's correct. When you indicate to Mr. smith he was not

going to be using the telephone, did he indicate to you he did not want to speak any further? A.
Q.

No. Did he ask to speak with an attorney at

that point? A. No.
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Q.

Do you go off the tape at any part after

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the time he asks to speak with his wife?
A.

I believe at the, at the very end where And

page 18, I make the statement, we are off tape now. that's the end of the recorded portion there and that was also the end of the interview.

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Q.
page 10 of 18.

I would like to draw your attention to

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A. Q.

Okay.

About halfway through the page it says:

It is now 1443 hours and we are back on tape?

A. Q. A.

Yes. What is that ref~rring to? Let ~e read that one moment, please. Okay. What I believe occurred there, if I
r
.

can go back to page 8 -- 9 of 18 at the top, as occurred several times, since we were in an office where the only persons present were Detective Young, Mr. smith and myself, and the telephone would ring on several
occasions.

And in this case the phone rang and I will step out of here to

Detective Youn~ stated:

answer any calls so you can continue, and I continued. What I believe occurred there is that Detective Young stepped back in the room on another matter and I cut the tape off right there for whatever question he had to

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ask.

And it had, I don't believe anything to do with And then I put the time and we were back on

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this case. tape.

Then we went ahead and continued on through the

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rest of the interview.
Q.

During the time that the tape is

disengaged, had you made any threats to Mr. smith to continue to talk with you?
A.
Q.

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No. Or any promises to you whether he would or

would not talk with you?
A.
Q.

No. Did he inquire about having an attorney

present for the rest of that interview?
A.
Q.

No.

Refuse to talk with you, you convinced him

to go ahead and talk with yo~?

A.
Q.

No. Other than that time you have just

indicated where you're off tape, ,are there any other portions1of the transcript that reflect you being off tape?

A.

Well, allow me to look through it, because

I was obviously wrong about that portion~ I don't see anything indicating that the tape was cut again prior to the end of the interview.

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Q.

And during that entire rest of the

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transcript, Mr. Powers never indicates on tape that he wants an attorney or does not want A. Q. Mr. smith. I'm sorry.

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Mr. smith indicates he does

not want you to talk with him or he does not want to talk to you?
A. Q.

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No. That's the entire transcript of your

conversation with him?
A.

Yes. MS. BOWEN: I have no other questions of

this witness.
THE COURT: Thank you.

Mr. Griffith? MR. GRIFFITH: Thank you, Your Honor.

17 18 19 20 21 22 23 24 25 C R 0 S S - E X A M I N A T ION

BY MR. GRIFFITH:

Q.

Sir, the interview started, according to

the paperwork, 1335; is that correct?

A. Q.

That's an approximate time, yes, sir. And it's at 1443 you go off the tape on

page 10 of 18 that the prosecutor was talking to you?
MS. BOWEN:

Your Honor, it doesn't state

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the time they go off, only the time they go back on. MR. GRIFFITH:
1443.

The time they go back on,

THE WITNESS: page number? MR. GRIFFITH:
THE COURT:

I'm sorry.

What was the

10 of 18.

with that clarification, 10 of

18. THE WITNESS: BY MR. GRIFFITH:
Q. 1443 hours.

Page 8 of 18 is when Mr. smith inquires

about:calling home. A.

That's correct. Do you recall his exact words when he said

Q.

he wanted to call home?
A.

I think he said something to the effect of

something, either, could I borrow the phone a second, I'd like to call home, or I'd like to call my wife, something like that.

Q.

So he wanted to do that rather than

continue on with the interview; right?

A.

Well, we were, we were talking there and And I

he just made a request, if he could call home.

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stated, we will be wrapping this up shortly, then make
the call.

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Q.

And you had told him that any time he Is that

wanted to terminate this he could; right?
right? A.

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That's correct. You told him right at the beginning any

Q.

time he wanted to terminate this interview -

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;

A.
terminate.

Sure.

He didn't say he wanted to

He just asked if he could make a phone call. When you came back on the tape at 1443,

Q.

page 10 of 18, you asked him if he agreed that there is some things that need to be cleared up; correct?

A. Q.

Correct.

In the transcript his response is reported

as unintelligible; is that correct?

A. Q.

Correct.

Do you have recall that his response was

actually in the negative?
A.

At this point in time I can't tell you
I

it says unintelligible.

If

I were to listen to If he would have

the tape I may be able to tell you.
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said, no, I don't want to talk any more, I want an attorney, I would have stopped right there.
Q.

You don't recall whether his response was

affirmative or negative?

A.

I can assume it was in the affirmative

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because we continued with the interview. MR. GRIFFITH:
THE COURT:

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I have no other questions.

Any further questions? Just one question.

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MS. BOWEN:

RED IRE C T
BY MS. BOWEN:

E X A M I N A T ION

Q.

As to the portion Mr. Griffith is

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referring when you are aSking Mr. Smith, there are things that need to be cleared up, your question is: you agree? Do

A. Q.

Tpat's correct, to him. At that point the transcriber indicates

she does not know what his response is; is that correct?

A. Q.

That's correct. It didn't i~dicate you're aSking him

whether or not he wants to continue to talk with you?

A.

Not at all.
MS. BOWEN:

Thank you.

I have no other

questions.
THE COURT: Thank you.

Detective Powers, you can step down. Any other witnesses on this issue?
MS. BOWEN: THE COURT:

No, Your Honor.
All right.

Any arguments?

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MR. GRIFFITH: Your Honor.
THE COURT: MS. BOWEN:

I'd like to call Mr. Smith,

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All right. Your Honor, we have the tapes

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for review if the Court is willing to listen to them to resolve this issue for itself rather than try to
speculate what that statement was on the tape, just play

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the tape and determine for yourself.
MR. GRIFFITH:

There's no reason I can't

call Mr. Smith; is there?
THE COURT:

There isn't.

Thank you.

I

might.

I'd like to see the transcript if I may. MR. GRIFFITH:
. .

I have no objection to

that, Your Honor.
THE COURT:

And, Mr. Smith, why don't you

come forward and be sworn by the Clerk.
MS. BOWEN:

The portion they are referring
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to is on page -- transcript

(Witn~ss sworn)

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W ILL I A M

S M I T H

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called as a witness herein, having been first duly sworn, was examined and testified as follows:

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D IRE C T BY MR. GRIFFITH:
Q.

E X A M I N A T ION

Sir, please state your name for the

record.

A. Q.

william smith.
And, sir, do you recall being interviewed

by Detective Powers?

A.
Q.

Yes, I do.
,

A~d is it true that you went 'with him

willingly after he 'had searched your house?

A.
Q. questions? A.
Q.

Yes.
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And you voluntarily answered his

Yes, I did. Did he tell you. that you could terminate

the interview at any time? A. Yes. At some point do you attempt ,to terminate

Q.
the interview?

A. Q.

Yes, I know I did. How did you attempt to terminate the

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interview?
A.
Q.

I asked to make a phone call. What was the response when you asked to

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make a phone call?
A.

He told me he did not have but a little

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while longer in the conversation, and that I would have
to wait.
Q.

What was your intent upon wanting to call,

to make the phone call? A. I was going to call my wife at that time.

At that time I had not retained an attorney because I didn't think there was any reason to.
And ,I wanted to

call my wife, to see if she knew the names of any

attorneys out in Fountain Hills.
Q. NoW, came back on the tape at 1443; is

that correct?

A. Q.

Yes. And the officer, the detective asked you

if you agreed there was some things that needed to be

cleared up. A. Q.

Do you recall that conversation?
Not really.

Not totally.

And you had a chance to read it over my

shoulder just briefly; is that right? A. Q. I'm sorry? You just now had a chance to read it over

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--

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my shoulder; right? A. Q. Yes. Now, you've read this before because

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you've read all the police reports?
A.
Q.

Yes. What do you believe your response was when

the officer asked you whether or not you agreed that they needed to keep going on with this interview?
A.

Well, my intent was to say no.

But I'm

not exactly sure how it would come out. nervous about that time.

I was real

They were asking questions

really -- leading questions, and trying to, to turn something that was not meant to be into something they wanted it to be.

Q.

Okay.

Had Detective Young popped in yet

with his various accusations and questions?

A. Q.

I'm sorry.

I've got a hearing problem.

Had Detective Young started asking

questions yet; do you recall?

A.

I don't recall Detective Young really
I know he interrupted our

asking any question.

conversation once with Detective Powers, but I don't remember too much about the conversation with Detective Young at all.

Q.

Okay.

So you did indicate to Detective
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Powers that you wanted to at least take a break from the interview, make a telephone call and he would not allow that; is that right?
A.

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That's right.
MR. GRIFFITH: I have no further

questions. THE COURT: Thank you.

Cross on this witness?
MS. BOWEN:
Thank you.

C R 0 S S - E X A M I N A T ION BY MS, BOWEN:

Q.

Mr. Smith, have you ever seen a transcript

of your interview?

A. Q.

Yes. You are aware when a transcription is made

the person is listening to the tape recorder?
A.

Yes. They weren't present at the time you were

Q.

making these statements?
A. I'm sorry.

I can't hear clearly.

Q.

The person transcribing isn't present at

the time you were making these statements?

A. Q.

Right.
They were only transcribing what is

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contained on the tape; isn't that right?
A. Q.

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I would assume.
You've seen on page 8 of 18 a

parenthetical pair that says: calling home.
A.

smith inquires about

Yes, ma'am. The person who transcribed that would have

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Q.

had to ascertain that from what you said on the tape? A.
Q.

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I would guess, yes. Doesn't say you asked to speak with an

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attorney; does it?
A.
No, ma'am.

Q.
book; does it?
A. Q.

Doesn't say you asked for a telephone

No. Doesn't say that you said, I want to stop

talking to the police; does it?

A.
Q.

No.

It doesn't say -

It does say you want to call home?
THE COURT:

Just a second.

If you know,

were you finished with your answer? THE WITNESS: she is a~king me questions.
THE COURT:

I would like to rebuttal as

Just a second.

Answer what is

called for in the question.

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THE WITNESS: BY MS. BOWEN:
Q.

Would you please repeat?

You did not ask to stop talking to the

police; did you?
A.
Q.

I'm sorry.

At what point?

At the point of your parenthetical which

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says, "Smith inquires about calling home."
A.

Well, that was -- I assume that was my

purpose in mind was to ask. Q. Now, you're not assuming Detective Powers

is a mind-reader; are you?

A.
Q.

That was my purpose. I'm not asking what your purpose was. I'm

asking whether you believe Detective Powers is a
mind-reader?

A. Q.

No, ma'am.

I hope he didn't.

Detective Powers would have to rely on

what it is you're saying, "not what you're thinking; correct?

A. Q.

I would guess, yes. At the time you make the statement you

want to call home, the conversation continues for another two pages; isn't that right?

A.
remember.

Yes, ma'am.

That's -- best I can

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Q.
A.

At that time, Detective Powers is

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interrupted and stops the conversation; correct? I don't remember.
You see the transcription on page 10 of 18

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Q.

where it indicates you are now back on the tape; correct? A. I'm sorry? You have seen the transcription that

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Q.

indicates at 1443 hours you're back on tape?

A.

Right. Detective Powers is the first person

Q.

indicated as speaking at that time?

A. Q.

Right.
Correct?

Now, when you went back on tape you did not tell that officer that you wanted to stop talking; did you?

A. Q.

No, I did not, at that time. And you did not say that you wanted to

call an attorney; did you?

A. Q.

No, ma'am.

And you did not indicate that you wanted

to leave the premises; did you?

A.

No, ma'am.

Q.

Then you continued to talk for another

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pages; isn't that correct?

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A.
Q.

Again, it was at his insistence. For every question asked, you give an

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answer to the question; correct?
A.
Q.

Yes, ma'am. And during that entire 8 pages you do not

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ask to speak with an attorney; do you?
A. Q.

Only when I ask to make the phone call. Again, you asked to call home; correct? Right.
MS. BOWEN:

A.

No other questions.

Thank

you. MR. GRIFFITH:

No questions, Your Honor. Thank you.

THE COURT: .AII right.

Mr. smith, you can step down. Any argument, Counsel? MR. GRIFFITH:
witnesses.
THE COURT:

I have no further

All right.

Any argument, Ms. Bowen?
MS. BOWEN:
THE COURT:

No, Your Honor. Mr. Griffith? Thank you, Your Honor.

MR. GRIFFITH:

Your Honor,.it's clear he asked to make a
phone call.

He was not allowed.
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voluntariness is interrupted. go on with the conversation.

He's no longer willing to Right then and there, if

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he wants to make a phone call, from that point on their decision not to allow him to make a phone call interrupts what he has been doing voluntarily up until that point in time.
after page 8 of 18.

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I would ask you to strike anything

MR. GRIFFITH:
THE COURT:
MS. BOWEN:

Thank you.

Thank you. Judge, briefly. Your Honor,

voluntariness goes to forced coercion, promises or

threats, none of which,were contained at the portion that Mr. smith asked to call home. If ~r. Griffith is

referring to a violation of his Miranda warnings, iwhich'
indicates he has a right 'to counsel, that also did not

occur because he did not ask ~foricounsel. Neither voluntarily has been breached, nor Miranda.
THE COURT: testimony. Thank you.

I've heard the I've reviewed the

I've heard the arg~ment.

relative pages of the transcript of the interview of Mr. smith. The Court finds that the following factors existed at the time of the interview: Mr. Smith consented to be interviewed by the agent, by the detective. Mr. smith made a request

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to call his home.

He did not articulate that he wanted Mr. Smith, right now, when he

2 3

to contact an attorney.

testified, further clarified or stated that the only time he, in his mind, was thinking of calling or contacting an attorney was the time that he expressed to the detective that he wanted to call home. The

4
5 6

7
8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

detective had no reason to believe that the Defendant wanted to contact an attorney because it was not
articulated. The transcript did not have any further

indication that Mr. smith. articulated any request for an
attorney.

Miranda warnings were given. The Court finds that, with all those

factors, the statement made by Mr. Smith prior to page 8 and after page 8 of the transcript of the interview are voluntary and are admissible. Thank you, ~ounsel.
at 1:~0.

See you tomorrow then

Case 2:04-cv-00573-FJM

Document 33-12

Filed 08/11/2005

Page 24 of 25

I

,

do

hereby certify that the foregoing pages constitute a full, accurate typewritten record of my stenographic notes taken at said time and place, all done to the best of my
skill and ability.

DATED this---- day of

,19

Official Court Reporter

3888-101

Case 2:04-cv-00573-FJM

Document 33-12

Filed 08/11/2005

Page 25 of 25