*1
En
38629.
Banc.
October
1967.]
[Nos.
Arthur
v.
Washington, Respondent,
State
Aiken, Appellant.
Nathaniel
Antonio
Washington,
The State of
Respondent,
Wheat, Appellant.*
Nathaniel
*Reported
Kempton, Jr., for council Savage, (appointed thony appellant for appeal). Burton, L. Philip M. Stokes
Charles appellant for appeal). council (appointed Wheat Ri-A. Jack Kinzel, and L. Carroll, William O. Charles respondent. chey, for
Douglas curiae. Palmer, amicus Shaw appeal J. This isan from the conviction Hunter, (appellants), and Arthur N. defendants Antonio N. Wheat degree, in Aiken, on three counts of murder the first while committing, attempting engaged in defendants were withdrawing robbery. the scene of a commit, or from jury. imposed by special penalty verdict of the death a 3rd in the United and Aiken were airmen class Wheat Force, Everett, Air at Paine Field near States stationed Washington, at the time of the commission of the homicides they charged. Negroes Both are with which and were years age, respectively. high 20 and 19 is a school graduate Spiegel’s Chicago, in and had worked in Store capacity; years supervisory Illinois, in a he had served in performing Force, the Air of a cook, the duties and had becoming aspirations teacher. Aiken had school in been years through the Air Force for 2 its educational facili- high completed had education; addition, ties school in degrees judo he held one of “brown belt” in service competition.
The three homicides which the defendants were charged killing Fair, were the of Owen service station at- Seattle, tendant of a Time Oil Service Station on March killing 1965; Wolf, of Daniel service station attend- April Seattle, ant of an Eneo on 12, 1965; Service Station killing Harp, and the James service station attendant of Douglas King County, north of Service Station Seattle April 24,1965. *4 leading apprehension Evidence to the of defendant came from the identification of Wheat Wheat’s car which Douglas April bad at the Service been seen Station 24th at morning, approximately about o’clock minutes Harp’s day time of death. Later that the estimated before matching description vehicle, at the car observed by Douglas police park- station, was discovered officers in a ing opposite gate lot the main of Paine Field. A check with County the Snohomish sheriff’s office disclosed it to be car. Wheat’s
About o’clock that afternoon into Wheat was taken custody at Paine Field; advised that his automobile had been observed at the scene of a homicide and that he description person matched the of a there. seen He con- lineup, sented to a where was identified witnesses as having Douglas shortly prior been at the station evening homicide. Later that Wheat was taken from Paine King County jail. Field to the implicated
Statements taken from at Paine Field whereupon all-points defendant Aiken, bulletin was police issued over appre- radio, and resulted in Aiken’s evening April hension on the ington. 25, 1965, Blaine, at Wash- custody by He taken into the'Border Patrol and transported by police County the Blaine to the Whatcom jail Bellingham. evening at Later the same he was met Department King officers of the Seattle Police and the County King County jail. sheriff’s officeand taken to the completely
To more understand the contentions on raised appeal, participa- as well as the extent of the asserted complicity alleged tion and of the defendants in the homi- respective cides, the defendants’ versions of the robberies appear homicides, as in their statements, written intro- evidence, duced in are set forth in substantial detail. Cleri- they appear, cal corrections, are also inserted as initialed by each defendant.
The Owen Fair Homicide (state’s 4) In Wheat’s statement exhibit taken 11:08 p.m., April regard 25, 1965, on to the Time Oil Station robbery p.m. and homicide of Fair at Owen about 10:30 March 26,1965, Wheat states: I have been advised Mullen, Detectives E. T. and O. Department, Church, C. of the Seattle Police I do say anything.
not have to attorney I That have a to see an saying anything, anything before and that I do say, could be used me in a court law. *5 . . . I a saw had the man into small backed
storage pointing colored, area. Aiken his silver .22 was just standing caliber automatic the man. The man probably way up. there, his half hands held about pulled key belt, Aikens off mans over, reached and the string that was attached to a of some sort. Aiken handed key, go me the me cash I took and told check the box. opened it, box, and went into the office.I cash on the the against key. wall, counter empty, the with the box was I room, so returned to told Aiken. At lube and money time, man, Aikens asked the was. where just taking The man said had come from back money the in time, somewhere. At that Aikens hit the man “please, face, said, with his left hand. The man I have put trouble,” heart said his hands over his face. When this, head, Aikens kind of the man his clubed behind hand, with his left and the man fell on the floor. As the laying through man floor, on the Aikens went pockets. pocket, He took from his the mans wallet back money pocket. and some from the mans Aikens shirt then say asked the man if he had more. The man didn’t anything, just time, laid on floor. I out At this went having car, it, I to start because had been trouble getting heard trying car, it started. I was I from the station. I to start the when gunshots, four or about five station, looked back toward the and saw Aikens walk out lube, of the He into the office. stood there for a few looking seconds, around, outside, then he walked got managed my car, into car. I I to start the and drove away, way from station, .... On the to Macs got. money My Place, Aiken divided the Show we had eight thirty share . was about dollars. . . voluntary given freely by statement, This is a true and me, Mullen, to Detectives E. T. and O. C. Church Dept., promises, threats, Police without or under Seattle of duress. conditions robbery
Aiken’s version same homicide in his (state’s 7) April taken a.m., exhibit at 3:30 statement 1965,is as follows:
I been advised Detective E. T. Mullen of have Dept., say anything, Police I do not have to Seattle attorney saying see an that I have a before anything anything, say, and that I do could be used me in a court law. aged, . . . There in was middle fat man white station office. I office, Wheat and walked into the . . . office, . Wheat and I until the remained man came back into there from As the lube room. pulled my man started back into I office, out silver pointed colored, .22 automatic, caliber it at the man. carrying gun my jacket pocket. I was inside I gun my think I held the left hand. I man told the *6 get back in there, and the of us into a three went back give side room off the lube room. I man me told the money, say anything, just he and didn’t started to right pocket. reach into his front trousers As the man did grabbed this, Antonio wrist, the mans reached and into pocket pulled money the mans himself. some Wheat paper currency, pocket. out of the mans then Wheat pocket, reached into the mans front shirt and took out paper currency. some more I told the man to turn facing around, as he around, was me. The man turned put my gun I and hand, Wheats as he reached for it. At same time, small, me a col- Wheat handed white got ored can of I ether, ether. had this can of from the dispensery, days before, base or three about two and had given placed Wheat, it to and he had in his car. given poured ether, After me can of I Wheat had a large rag picked up. a I amount into had I reached quickly placed rag man, around the over struggled moments, mouth and nose. He for a I few but limp my on The man arms, held to him. went and I my gun me, laid him on the floor. handed Wheat back to grabbed key, string, and he then on a white that was loop. stood, tied to the mans belt I man and covered the my gun, as Wheat went into the station office to check came the cash drawer. Wheat back and said there anything suggested in there. I we leave. The man wasn’t was still laying mumbling. floor, on and he was yet. leave I him said we couldn’t asked Wheat what talking replied hell he about. Wheat we had to referring to man on the floor. I him, shoot told Wheat going give him, shoot so I Wheat told me to wasn’t gun gun. Wheat, I then handed the him the doorway. stepped Wheat then leaned over back floor, and fired at least four shots into man on the the man in the the mans head. shot I believe another hit laying on man flat his back chest. The when was gun that Wheat held the I estimate about one shot, and away man, from the when shot him. After the foot going shooting, station, out of the turned, I and walked out, later, came A moments Wheat back to the car. few got drove in and we and walked back to the car. Wheat got currency had we off. . . . counted the Wheat seventy about man, from the Time and it totaled Station gave my [initials me half dollars, it, divided Wheat thirty dollars. a little over A.N.A.], inserted: which was battery from the . . . had also taken new placed of his car. station, and the rear floorboards it on voluntary given statement, . . . is a This true freely by Police me, E. T. Mullen of Seattle to Detective promises, Dept, condi- threats, or under without „ tions of duress.
The Daniel Homicide Wolf robbery Wheat’s and the version the Eneo station midnight April 12, 1965, con- Wolf homicide on about (state’s 3) p.m. tained in taken at 10 his statement exhibit April 25,1965: I Mullen, have and O. been advised Detectives E. T. Dept., C. I Church, of the that do not have Seattle Police say attorney anything. to before *7 I That have a to see say, saying anything, anything I and that do could be used inme a court of law. gone my . . . I had I noticed a short distance when light, flashing pulled oil red, indicator so I into a Eneo right young Station, on the road. A male side of the attendant, car, came over to and checked the oil for quarts me. I I him low, He told me so told was about two put quarts Meanwhile, in Aikens had two of bulk oil. gotten car, out of the and to the mens rest room. went put this, The he did attendant the oil in the car. When Aikens into the station room, came out of rest went price oil, office. attendant told me the which sixty seventy gave I him a five cents, was about dollar or into the station office bill. attendant went got out, and I him office bill, followed into the myself. pulled colored, time, Aikens out his silver At this pointed automatic, attendant, .22 it at the and told caliber holdup. [initials told Aiken him, this a The attendant give money, A.N.W.] him inserted: that he would very anything religious wanted, and that he was replied trouble. man, and that didn’t want Aikens just that, didn’t to hear all and he wanted that he want money. the taking opened The attendant then box, the cash money, offering out all the it to Aikens. Aiken placing my right told me it, did, take so I it in coat pocket. At that time, Aikens asked if that all the money, money and the attendant said there was more the kid and the then ting get safe. Aikens asked if he safe, could and the replied yes, key and took a drawer, out of the desk opened opening floor safe behind the counter. After step
safe, Aikens told the attendant back, and he money get- took the out of the safe himself. After money out of the safe, either Aikens or the replaced top attendant of the safe. Aikens then or- dered the kid out from behind said, the counter and “lets go in the back.” The three of us then walked back to a small room, store at the rear of the lube room. When we got back room, to the store the kid asked if he could pray. on his say anything, got Aikens didn’t and the kid down praying knees, and started I out loud. don’t recall what he said. over his him once in left the first down, The kid had his head and his hand eyes. He had words, said a few when shot near the kids standing head. Aiken was holding gun firing side, in his hand. After shot, kid forward, fell and Aiken him shot again. shooting, After Aiken, I, and walked out to my parked gas I car, where pumps. had left at the outside got in, We and I drove Paine Field. On back to way up money got- back, Aiken divided hadwe got ten. in all. . . We about three hundred dollars . voluntary given freely by statement, This is a true Mullen, me to Dets. E. T. Police and O. C. Church of the Seattle dept., promises, threats, or under condi- without tions of duress. robbery
Aiken’s version of the same and homicide April 26, 1965, contained state’s exhibit taken on 10:45 a.m.: by Sgt. my rights attorney
I have been advised of to an Police R. Dept. and Det. D. of the Seattle Schoener Shearn say anything and I have been told I need not *8 might say anything in a I can be used me court following I to make the statement. law. wish Sunday ago in On nite about sometime a two weeks April Wheat, I an air- middle of was with Antonio in at Paine Field. We man I am stationed with Wheats were It about mid- car a 1954Ford 2 tone brown. was night driving end of and in the Seattle Antonio So. was robbing maybe Empire Wy a We had discussed So. gas Eneo Wheat Station station and as drove we only good man one said a there is that looks like one couple up street the side there. a blocks So drove A.N.A.] around [initials beside station went inserted: just parked north of the the block and on the same street the attendant station. We the street and walked across just a in in front of was alone the lube room at a bench working car. on a car He had his He back to us. was battery. blondish hair. Wheat asked the attendant what years The 23 or 24 old with attendant was about
could cause car dis- to vibrate. Wheat and the attendant carrying a .22 cal cussed the car for a auto. Italian I few mintues. was my [initials A.N.A.] coat make inserted: pocket. my gun my pocket holding I took the it out guess I left hand. I told him to turn around but attendant didn’t attendant asked if this I it a little louder. hear me so said holdup a he saw when gun. I told him did like. He then said what it look money. give didn’t and us the want trouble would and Wheat walked to office the attendant followed my gun put I I had back in walked rear. pocket. money The attendant from a cash box on took picked up the end of a counter and laid it I and down. put ready my pocket. getting it in leave We money [ini- when the attendant said he had more A.N.A.] tials asked him inserted: safe. Wheat where open said he safe was and could he could. it. The attendant pulled open desk so Wheat The attendant drawer doing. see The attendant went around to what he was key. up key picked attendant showed Wheat and bent just opened him in behind the corner down get up could the door the floor safe. Before the attendant pulled him and took the door off himself. off Wheat back money pulling safe, reached in started out the Wheat pocket. put if it in his He then asked the attendant get A.N.A.] [initials inserted: into the bottom of he could the safe but the attendant then key. didn’t have that Wheat go put on. then said lets the safe door back Wheat pushed all back to the the attendant we went go into a small told the attendant lube room. Wheat just [initials A.N.A.] off the rear inserted: side room money said the in- room. The attendant the lube very religious and didn’t to die. want sured. He was pulled a small blade knife and forced out switch *9 [initials the attendant inserted: said to me into the room. Wheat you II. said A.N.A.] do to do it or should want gave I knife and I him I do it. handed me his wouldn’t Wheat my gun. going I attendant. knew he was to shoot the my pants pocket. put at the it in When closed the knife and pointed gun [initials inserted: attendant Wheat A.N.A.], tendant his hand. the then a pray. The at- the attendant said he wanted got face on his knees covered down I the front turn around and walked towards shot [initials A.N.A.] I heard one inserted: station. I heard shot. Wheat seconds later another few to the car and then came of the room. We walked out attendant. Wheat off. I had shot the drove knew Wheat up Empire Way pulled and then behind drove south on money. I around store. He then think was counted papers. cash, checks and other and also some $200.00 got money. gave I half I think He then me about of the I him told Wheat started to drive around town. $94.00. the base. On lets leave and way drove back towards we my gun gave A.N.A.] me back [initials inserted: got gave 2:00a.m. and I him his knife. We back about given voluntary statement The is a true and above Sgt. the Seattle Police me Schoener &Det. Sheam of R. any promise Dept kind. threat duress without (The page Aiken of 14 contains a sketch first of exhibit layout room Eneo Station with lube Service shot.) designated Daniel Wolf was where Harp Homicide James robbery Harp gave hom- versions of the three Douglas April 1965, at the Station. 24, icide Service (state’s exhibit contained in his statement first version was 1) p.m. April 1965, in which asserted taken on con- A version was fired the fatal shot. similar that Aiken (state’s 2) 3:55 taken at exhibit tained in his statement p.m. April final and corrected version 25, 1965. The robbery Harp Douglas and the homicide Service Station (state’s 6) of 1:35 exhibit contained in his statement April 26,1965, as follows: a.m. taking I advised me that this statement has The officer any if I do that it statement and
do not have to make A.N.W.] evidence may [initials inserted: used in court. me attorney my right me of advised has also He a correction make I give wish statement. I before Sgt. Crider gave Mullen I Detective to a statement dated utes friend Arthur min- p.m. Approximately ten April at 3:55 25, 1965 my I talked prior this statement to the start of tell have decided Aiken and now Judge April Hoar’s complete I On 1965 was truth. *10 although charged in the I murder court and was degree truth. to tell the first I more than ever want my rights judge me of I informed While was court the attorney. and also I to an told me was entitled Douglas on I Station When drove into the Service April approximately Aiken 3 a.m. Arthur was 1965at key got got on a can I car awake. out of the and I then used about the a beer can to the rest room. size of key and room men’s rest to unlock the door to the key gave went to urinate. I then back the car and service station attendant. I then walked got in sat and talked for on the driver’s side. We then asleep up approximately I at awhile. fell and then woke asleep. I then into 4:15 a.m. Arthur the station officeto use the Base and there walked was phone. I Paine Field Air called I to the service no answer. talked up left. his friends drove station attendant until two change they I for a After left asked the attendant twenty to the cash box dollar bill. We then walked out pumps. opened [initials A.N.W.] inserted: After he the cash my right pulled box I the 22 silver automatic out of “give money, pocket him me all the is was told money holdup.” as it He then told me to take all the currency out of and he He took all the insured wasn’t. currency me. I took the the cash box and handed it to my my pocket. put We hand and it in left coat left with went key get and I him “to back in the office told up key picked from the men’s rest room.” He room I him into the men’s rest and told to walk counter got him. After into did, and I we he followed which rest room toilet and before he sat he sat on the down I him if he could I kill me.” asked said “don’t down he asked him said he didn’t know. also me and he describe reply if had to and his describe the car if he could again I asked him if he could describe kill me.” “don’t probably the car and he said “he could.” He started talk- ing and I don’t remember I him what said and told up kept talking. safety shut and he I on then released the gun accidentally. on the and the first shot went off He slumped over and I fired then more shots after I two aimed at head. After the first shot was fired he dropped key I on the floor. then outside and ran went got to the car. I then Arthur Aiken in the car and started the motor. asleep. previous I was still As stated way statement I back I drove to the base and on the money counted the The 22 which amounted auto- $120. pocket I I matic used had taken from Arthur Aiken’s the early morning April April at I 21 or 1965.When sneaked I into his unlocked room the barracks. was suit, shirt, dressed in a black shoes and brown white quarter length topcoat. black sox and had on a three tan may I I base at Paine Field. have taken the from the attendant wrist watch my give permission search locker on the therefore voluntary
This is a true and state- given freely [ini- ment tials to Detective Church and Mullen Sgt. A.N.W.] Crider fear inserted: without promise kind. started threats or 4-26-65 This statement and ended at 2:45a.m. at 1:35a.m. 4-26-65 robbery and homicide Aiken’s version of the same (state’s 5) given April a.m., 26, 1965, 1:20 is as exhibit *11 follows: Base, Wheat, I Paine Air with Antonio in
On 4-23-65 left car car 1954 tone brown. This his Ford dr. Sedan two also hood. I left the base about has a black believe we girls p.m. go 3:30 Antonio me that he had to to told house, her to the Laundromat. because had to drive got girls p.m. Her name is We to his house 6:30 about Dorothy holly park in drive and she lives out south Antonio and I into the Seattle, end Wn. went stayed house, one hour. left we and about When we Dorothys to one of female friend drove sisters and another Everett, home, their I drove back to then Antonio and Eric we Wn. and drove to a friends home Brown. When got going so home he to take bath to Browns was home I another Airmans Antonio and walked over to go I there I had Jones home. wanted to because Edwin lent him up belonged picked me. I records that tó two not the other as Jones wife had one the records and I one of her friends. Antonio and then walked lent it to ready go to with he was Eric house and to Browns back us so got to car and drove Antonios all three of us into p.m. 4-23-65. 10:30 house about Seattle. We left Brown place in near 2nd & Yesler all drove to a dance We down place Macks Place. name of the was Show Seattle, the any people got Eric car see if there were out of the jumped didn’t look like there, and back in and said it up 12th & Jack- drove there much action. So we was got spot Black Tan. We all out son to another & place and car in the entrance to this and walked pay did the cover looked inside but we charge not want got many people all as there there. We wernt to place car, back and another had into the drove to we they I this is the heard about. believe call it the Go-Go stopped by name. We the officer at the door and Washington liquor because didwe not have I.D. State got cards, he car would not let us in. We all back into the and started to head Eric back home. for Everett to take By this it 12 midnite. time should have been a little after dropped I do not recall Eric what time we at his home gone sleep I I because had in the back seat. dont recall got up I time but when Eric out of the car and woke got dropped in the front After seat next to Antonio. we highway gas Eric off Antonio drove to a station on got Everett, north of and out of the car and Wn. Antonio Antonio went to the rest room. I remember that when got using back room and into the car after Seattle, the rest we up I next time I drove toward Wn. The woke place Douglas some saw that we were in a Gas Station up Antonio the northend of I asked Seattle. woke why there while. parked pulled we were there and he said that he sleepy to rest a little because wanted got I I of the car don’t remember that Antonio out sleep I did not I back to know where he went. went again parking up lot across wake the until we were gate Air I dont from the main at the base. street light. I Antonio and recall time this but was what got car and into the base. We both both went out upstairs I and Antonio barracks and live live lives down stairs. went the same my his. I room he went *12 given by pages me of four I have read this statement voluntarily promise. freely I or fear threats and without my right legal to counsel before advised of have been giving also been advised this statement and have this I in a court of law. used me could be statement 320 having give of been advised this statement after
wish this.
Although assignments error have made numerous of been appeal by con- defendants, on this each the crucial of the defendants’ tention for is the asserted denial review rights guaranteed by fifth, and constitutional sixth by rea- of the federal constitution fourteenth amendments statements son of admission into evidence of these by made the defendants. interrogation and
The evidence relative to the of Wheat 3-day hearing pretrial Aiken is the record of a disclosed in Pleading, pursuant and held Rule of Practice 0, Procedure to determine the admissi- 101.20W,RCW vol. bility incriminating statements, and Wheat’s and Aiken’s admissibility ap- evidence. Further evidence other hearing, pears supplemental ordered the record of a respect court, to the confessions of the defendant opinion. Aiken is later in the and discussed properly In the evidence adduced at the order to evaluate light findings evidentiary hearings of the ultimate applicable court, trial turn to a discussion we first legal governing admissibility principles chal- of these lenged statements. tried in Octo-
Since defendants were the recent exclu- ber, 1965, we are not directed follow sionary prospectively Supreme rule announced Arizona, Miranda v. 384 U.S. Court of the United States (1966), Sup. 436, L. Ed. Ct. 1602 wherein the 694, 2d 86 clarifying following guidelines incorporated, ex- tending Illinois, Escobedo v. its earlier decision in U.S. (1964), (Mr. Sup. 12 L. 2d Ct. Chief Ed. court): Justice for the Warren custody [W]e taken into hold that an individual is when deprived his freedom the authorities otherwise privilege against subjected questioning, safeguards jeopardized. Procedural
self-incrimination is must be protect privilege, employed unless adopted notify fully means are other effective person and to of silence assure that
321 prior following remain exercise of the silent, any questioning measures are [2] that right will anything required. He must be warned be scrupulously honored, the [1] he has says can be used the right against right to him in that he has the law, [3] a court of prosecution such until such interrogation ingly answer these terrogation. afford any questioning presence opportunity rights an questions attorney warnings intelligently at After such must be afforded to him can of trial, if an afforded or make a statement. But unless and one attorney, used no evidence obtained so desires. will waive these warnings waiver are demonstrated against him, the be and appointed Opportunity him. have been individual [4] rights throughout (Italics as a and if him may given, and ours.) he cannot result agree exercise prior to the in- by know- 384 478, at 479. U.S. Jersey,
Chief Warren, Justice in Johnson v. New 384 U.S. (1966), Sup. explained 719, 16 882, L. Ed. 2d 86 1772 Ct. making stating: reasons for retroactive, not Miranda ago As for the standards laid down one in Mir- week persuaded they fully anda, if we were had been anticipated by holding Escobedo, we meas- would prospectivity ure their from the same date. Defendants still to be tried at that time would be entitled to strict already clearly observance of constitutional doctrines fore- disagreements among shadowed. other courts con- cerning implications Escobedo, however, have im- pelled lay guidelines us down additional for situations presented by not that case. This we have in Mir- done guidelines only anda, these are available therefore persons begun whose trials 13, had as June 1966. (Italics ours.) only therefore deal here Escobedo; We wherein Jus- Goldberg, speaking tice court, for the announced the fol- lowing safeguard: constitutional investigation longer general [W]here, here, is no
inquiry begun into unsolved crime but has to focus on particular suspect, suspect po- has been taken into custody, police carry process interroga- lice tions that out a eliciting incriminating lends itself to state- suspect requested ments, [1] the has and been denied an opportunity lawyer, police to consult with his and the stitutional denied “the Assistance of Counsel” have not effectively to remain warned silent, him his accused [2] absolute has been con- police during tory Sixth Amendment to the Gideon v. Sup. at a criminal trial. upon Ct. 792], Wainright, the States interrogation may (Italics ours.) [3] that no statement U.S., Constitution as “made the Fourteenth 342 L. U.S., at 490-91. be used in violation [9 elicited Amendment,” Ed. 2d obliga- him interpretation been Our Escobedo and that which has prior to followed enforcement officers law since *14 618 808, 399 P.2d Miranda, Darst, came in State v. 65 Wn.2d opinion, (1965), considering implications of the where, holding Supreme in Miranda we foresaw the Court’s warning following making that as to the observations interrogating given by police a should be officers before person custody: in lawful
It seems given unmistakable and true said or written dence, claimed error and [2] purpose: to would do a to one in right us terms that that ascertaining lawful much keep a him remain forthright, clearly provable custody may eliminate a sizable [1] silent, investigation be he has a informing guilt used or innocence against [3] right channeled to its the accused quantum of him to counsel anything warning in evi- in simple party for accused. see no reason so caveat We being given routinely required part as a mod- not (Italics ours.) police ern administration. court intended in It is certain now this is what the re-enunciating Miranda, its tenets in Chief Escobedo, for in explained: Justice Warren holding [Escobedo] the fact that the
Our there stressed police of his had not advised defendant constitutional interroga- privilege remain silent at the outset points tion, at several attention to that fact and we drew 483, 485, This was no decision, U.S., 491. in the isolated 378 ingredient in our deci- but an essential factor, interrogation police there, as in sion. The entire thrust today, put the in such an cases was to defendant all the impair capacity his for rational as to emotional state privilege judgment. —the choice the constitutional abdication part speak police—was on his
323 knowingly competently to of made because of failure rights; atmosphere apprise compelling him his interrogation, independent in-custody de- and not speak. (Italics part, cision caused the defendant ours.) 436, 384 465. U.S. Supreme context, Escobedo, In this the United States significant on the admitted Court, with attention focused requests counsel, denial of the defendant’s continued complicity in a mur- struck down admission of Escobedo’s reasoning plot der confession, and his later Escobedo rights was unwarned of his and thus unaware statement admitting against complicity the murder could be used just effectively him, law, under as if he had Illinois firing admitted the fatal shots. Supreme recog-
The United Court, Escobedo, States may intelligently nized however that an accused and know- ingly privilege waive his self-incrimination and his right pretrial stage (foot- counsel either at a or at trial opinion; Zerbst, note 14 of the Johnson 82 458, U.S. Sup. (1938) ); L. Ed. Ct. A.L.R. but knowing intelligent that no waiver constitu- tional could said to under occurred the cir- have interrogation, cumstances of Escobedo’s defendant *15 being rights. unaware of his post expression
The most recent is Escobedo of “waiver” (See People the so-called “Dorado Rule” v. Dorado, 62 Cal. (1965), 338, 2d 398 denied, P. 2d 361 cert. 946 U.S. (1965), Supreme cited Court of the United States supra, 478), essentially Miranda, at which holds that charged defendant cannot be of a with waiver constitu right appears tional unless it that he aware of its surrounding voluntarily safeguards and existence its and intelligently asserting and elected to refrain from it. As by the court: stated California relinquishment
“. abandonment . . a waiver or intentional right privilege. of a known A waiver intelligently compe cannot be effected unless it is and tently given.” Rhay, (9th [Griffith v. F.2d 1960).] Cir. already In that defendant the absence of evidence interrogation, during right had a to counsel knew that he right inform him of that of the officers to failure precludes finding knowingly it. he waived right not Escobedo holds accused has also that the that, if and silent, remain to incriminate himself and to any self-incriminatory admissible, are statements to be presupposes right. he waiver must waive that Such right knowledge of silent; in absence remain knowledge, requires a the waiver warn- evidence such ing right. to the accused right Obviously, re- defendant could waive right. . . “The he of that . main silent unless knew charged waiver . cannot be with a . . defendant the privilege appears its that he was aware unless voluntarily safeguards surrounding and and its existence asserting intelligently it.” elected to refrain from ours.) (Footnote omitted.) (Italics Summarizing and other cases the Escobedo decision evidence, the record must herein, cited admissible in be incriminatory given a defend that the statements show freely accusatory stage, custody ant in apprised voluntarily of his him after he has made been making right silent, remain to counsel before anything warning given statement, say may must him in a court of law. It used does knowingly intelligently appear that the accused also asserting rights at that time these elected to refrain from answering police. questions principles the in- mind, now turn to these we
With properly apprised quiry here were whether defendants knowledge rights vol- and with such of their constitutional interrogations during untarily that elic- them waived their confessions. ited
Interrogation Of Wheat never Escobedo, that, under maintains *16 rights adequately properly constitutional of his and warned by receiving incrim- his error committed and the trial court against found, court The trial in evidence him. inations by made Wheat oral statements however, that before 1, 2, 3, 4, 6, and contained in exhibits and statements right given, fully (1) his to counsel he was advised (2) right making any remain statement, his si- before (3) anything say used he did could be lent, and which against further found all him in a court of law. court standing warnings given form of the were in the (exhibit 13), King County sheriff’s office order of the conducting in-custody inter- is a directive to officers which rogations. pertinent part: directive states interrogating imperative a crimi- It is that each officer give suspect nal pect’s most careful consideration to the sus- Rights interpreted by recent Constitutional Incriminating statements, court decisions. or either verbal during investigation, may police written, elicited an suspect effectively if be invalidated warned rights right his remain silent if his to counsel or legal advice is denied. taking any statement, Prior to or written, oral from person actually suspected under arrest of a criminal of- interrogating effectively fense, the officer shall advise the suspect as follows: (1) right that he has the to remain silent, (2) that it is his to consult be advised attorney making statement, before (3) anything says may be used him in proceeding.
a criminal reaching disputed facts, In this conclusion on the court following testimony based its decision on the exhibits and summarized as follows: Warning
1. of Lieutenant Paul T. Hancock, officer of day informing Field, at Paine defendant Wheat of rights Martial, under Article from the Manual of Courts Military “Uniform Code of Air- Justice; corroborated present Bennett, man who was the time. Warning by
2. Police De- Everett Mullen Seattle partment apprising after at the Wheat his car was observed homicide, scene of who testified that he told say anything, defendant he did not have to that he could *17 326 anything say anything, attorney and he did an
see before say law; him in a court of did could be used testimony by and Hancock, Lieutenant corroborated County King Sergeant office. sheriff’s Hartshorn of Warning by identi- after 3. the same officers Wheat they by lineup had man seen fied in a witnesses as the two Harp had mur- James been at the service station where dered. County King Warning by Sergeant
4. Crider of the Ron prior taking 9; and exhibit sheriff’s statement office by Po- Detective Frank Chase of the Seattle corroborated Department. lice taking Warning given prior
5. of statement exhibit Department Police Mullen of the before Detective Seattle King County Sergeant Crider of the sheriff’s and Detective department. given Warning by Crider, Mullen and Detectives
6. giving King County prior to state- Porter’s office Sheriff 2. ment exhibit justice Warning by Judge
7. Hoar at the defendant’s 'arraignment degree. court in the first murder Warning by Church, and O. Detectives Mullen C. 8. Department, prior 3. Police to statement exhibit Seattle Warning taking by 4, Detec- 9. statement exhibit before and Church. tives Crider by Warning Crider, and Church, Mullen,
10. Detectives taking con- exhibit 6 in which Wheat before statement killing Harp. fessed to the of James warnings, found, In the court addition to these oral warnings appear each out, the we have set written being signed or initialed statement, to as read and testified page, on each corrected defendant Wheat already places him at noted in the statements. various reading judge therefore, trial record, From our rights had the above was entitled to believe times; than 16 and under called to his attention no less given the noted circumstances, to have these was found warnings rights only of his had been statements, such after given. finding undisputed time that at no of the court was by requesting rights
did his manner Wheat exercise challenged attorney by refraining giving an from statements. judge
The trial
of the de-
further found that
reason
intelligence,
superior
fendant’s
which was described
equivalent
person
college education,
to a
advanced
fully
rights
that defendant Wheat
and that
understood
supra,
freely
voluntarily given.
the statements,
independent
(see Haynes
Our
evidence
review of this
Washington,
Sup.
10 L.
2d
Ct. 1336
U.S.
Ed.
*18
(1963);
Rhay,
In re McNear
530,
v.
65 Wn.2d
These three statements were found to have been freely voluntarily, only and without threat or fear and after defendant had been advised of his constitutional rights any and had elected not to exercise them in manner (finding undisputed pretrial hearing). fact
Finally, being rights, after advised of his Escobedo, under justice arraignment Judge at the court before Hoar, and police repeatedly again, freely after warned him gave (exhibit 3), three more statements. In the first participation admitted in the Wolf homicide named but triggerman. (exhibit 4), Aiken In as the next statement participation he admitted in the Owen Fair homicide, and again placed responsibility killing for the on Aiken. In (exhibit 6), subsequent his last statement Wheat, a to con- 328 liar, admitted him a Aiken who had called
frontation with killing the fatal shots that he and not had fired Harp. court statements, the trial James As first three incriminating and the confes- admissions found that these only given freely voluntarily de- after the sion were rights and fendant had advised of his constitutional been manner. had not elected to exercise them Considering is over- circumstances, all these evidence intelligently knowingly whelming waived that Wheat proceedings rights point at this his constitutional appreciation against unequivocably and full him. He with consequences incriminations, after labor- made these finger” ing “putting on Aiken conscience for with his (Court’s ruling pretrial the one who had fired the shots. hearing.) correctly all that the trial court determined that
We hold
voluntarily given
freely
statements Wheat
understanding
knowledge
of his constitutional
rights,
him.
Escobedo, and
under
were admissible
(1965),
4
States, 354 F.2d
cited with
Hiram v. United
See
approval Miranda;
Currie,
United
v.
The is made that there could be layman, intelligent by since, as a waiver Wheat Wheat statements, in four of his six the that, could not know equivalent complicity in the three crimes was admission of having himself, that fired the fatal shots in law knowledge, The there no valid waiver. this could be absent by Danny parallel made admissions is drawn similar argument find this in that case noted above. We Escobedo merit on the facts of case. to without be (none given warnings given to Wheat were argue Escobedo) express. To that after such are clear warnings also advised that an admis the accused must complicity admission of the in the crime is law an sion of
329 warnings very purpose for which crime, denies “any made given. statement that advised Wheat was against law.” court by him in a be used him could of purpose, (Italics ours.) warning the aware- as its This has very by situation warned, of this so the individual ness complained of. put questions choosing answer Wheat, in
Therefore cannot now by police counsel, of without benefit him the ignorance. out of complain himself he incriminated People supra, Dor v. 165, 166; Currie, at United v. States supra. ado, incriminatory state- further contends justice by police given after his court
ments,
him to
officers
arraignment,
evidence;
excluded from
should have been
of
the effective assistance
since he
at
time without
authority
People
argument
on the
counsel. This
based
(1961), long
the instant case relates to the defendant’s (state’s 6) Harp corrected version homicide, exhibit of the formally charged arraignment for which he had been at his justice proceedings court. No formal had been com menced Wheat for the Wolf and Fair murders and police properly interrogated respect officers him with these offenses. And confession, since defendant’s that he kneeling and not Aiken fired had the fatal into shots figure Harp, only of James was arrived at after he had properly privilege against been warned of his self-incrimi right People nation and his to the counsel, assistance of supra, interrogation, Waterman, we are satisfied that this confrontation, which followed the did not violate the de fendant’s fundamental to the counsel, assistance of supra. Massiah, enunciated in
Interrogation of Aiken surrounding Our review the facts and circumstances interrogation invaluably of the defendant Aiken is interrogation tape aided the fact that his recorded, virtually entirety, knowledge in its without the of either interrogating proved the defendant or the It officers. neces- sary, poor quality tape recording however, due points interrogation at various to remand this case hearing for a further on the issue of voluntariness, so that decision in our ultimate the case would be based on a every complete respect. record which was The evidence interrogation, therefore, relative to Aiken’s is disclosed in *21 evidentiary hearings determine held to the records both rights had vio- been constitutional defendant’s whether by taking any and respect confessions his lated in following The facts evidence at his trial. their admission in except by undisputed, here- trial are as as found court inafter noted. Washington, by apprehension Blaine,
After Aiken’s April p.m. patrol at 4:19 he was border carrying city policeman placed under arrest Blaine (a fully automatic) weapon a concealed loaded .25 and County jail Bellingham. transported the Whatcom at to patrol, patrol, city of Blaine, officers of the border state County all office, testified that from Whatcom sheriff’s apprehension, his time of Aiken’s attitude was sullen during quiet In entire fact, and he held his head down. his Bellingham, pending transport Seattle, detention in his to only question concerning detention, one asked remaining refusing even to silent the extent answer booking questions by the officer. routine identification approximately p.m. evening, At that Detective John Department Leitch of the Police and Detective Seattle Ser- geant King County Frank Chase of the office ar- sheriff’s Bellingham Aiken to At time, rived drive Seattle. police advised he have officers him that did not to make any attorney them, had a an statement to that he any anything say making statement, and that he before did against him in a court of law. could be used Detective rights, if Leitch asked Aiken he understood his and the “yes.” very defendant nodded said defendant was surly quiet. He his head his attitude had down and was cool. inquired route Leitch Seattle,
En Detective the de- military, he, of the a member fendant whether Military Uniform with article Code Jus- familiar compulsory prohibits tice, self-incrimination. The de- which replied he it. The was familiar with article in fendant part pertinent reads as follows: Compulsory prohibited 31.
Art. self-incrimination (b) subject person chapter may interrogate, No request any person from, statement an accused or a suspected informing of an offense him of without first advising nature of the accusation and him that he does any regarding not have to make statement the offense suspected any which is accused or and that statement may
made him be used as evidence him in a trial court-martial. being Detective Leitch further advised Aiken charge robbery. held on a of homicide and The defendant denied involvement and the officers did not discuss matter further.
Upon approximately midnight, their arrival Seattle, police interrogation officers took Aiken room lo- *22 County-City Building. cated on the 10th floor of the At April interrogation began a.m., 12:20 26, 1965, an there, tape recording, which is recorded on exhibit the first prior again by and thereto the defendant was cautioned rights Detective Chase of his constitutional as enumerated. warning by This third was corroborated Detective Everett Department, participated of the Mullen Seattle Police who interrogation, having and is admitted Aiken as given been to him.
During Sergeant the conversation that followed between Chase, Detective Mullen and the Aiken, defendant the de- lowered, fendant had his head mumbled his words and was difficult to understand. The interview room is not sound- proof, during and the conversation the heard, detectives recording and the discloses, several noises from outside including laundry running room, a on the above, floor gate swinging just outside the room, interview and traffic outside the noises window.
During interrogation, Aiken read a statement (exhibit 3) pertaining defendant Wheat No. to the Wolf charged homicide count 2 of the information, wherein slaying Aiken Wheat accused of the callous of the victim, praying. while was his knees Aiken insisted that the lying. counterfeit, and statement was that Wheat was Shortly thereafter, at a.m., Chief of Detectives Thomas room. Chief Nault entered interview Nault advised the from received had been evidence further that defendant that the indicated Aiken, Airman which Brown, a friend the fact corroborated Nault weapon Aiken’s. was murder Aiken, given read the statement had that Wheat give opportunity give they Aiken the wanted charged murder; story he was before side they lying, it. to know wanted if Wheat was brought down to requested that Wheat Aiken then granted, request verify was the statement. room standing brought room. While to the interview given he had him if Wheat, Aiken asked in front acknowledged In he had. statement, and Wheat Wolf say response the statement wasn’t refusal to to Wheat’s a lie and exclaimed the statement true, Aiken really happened. the officers what tell would concerning immediately questions answered Aiken if At 1:15 a.m. he was asked he wished to homicide. Wolf replied give of his version and he that he a statement would.
Upon Wheat, this confrontation with defendant spoke positively, words, to mumble his ceased up. appeared upset He to be excited. held his head Sergeant began Chase and Detective Leitch At 1:20 a.m. Aiken in the interview room concern- conversation with a ing charged Harp homicide as in count 3 of the infor- recorded on This conversation was exhibit until mation. *23 Aiken detectives and were aware that this 2:22 a.m. Both being taped. conversation was interrogation, Sergeant ad-
At the outset of said Chase right any Aiken make monished the defendant of his not to right attorney making he had a to an before statement, that any given him statement, and that statement could in Aiken he evidence a court of law. stated that used as be he this, and when asked whether still wished to understood give “yes.” replied, he statement, a charged homicides, in counts 1 Fair and Wolf as investigated by being Depart- Police Seattle 2, were being investigated by Harp 'homicide ment, and the was King County sheriffs office. was It the intention of the investigating separate officers to obtain for each statements During homicide. the conversation, recorded on exhibit Sergeant began writing Chase exhibit relative Harp Sergeant complete homicide. Chase, did however, not during recording, only exhibit not since Aiken talked Harp homicide, about but also Fair and homi- Wolf cides. After the ended, recorded conversation was exhibit completed. approximately April
At 3 a.m. 26, 1965, Detectives interrogated Mullen and Orin Church Aiken the inter- in concerning charged room view the Fair homicide as in interrogation, count 1 of the information. At the outset of Aiken was advised Detective Mullen that he did not say anything, right attorney have he that had to see an making any anything say before statement, and that he did against could be used him a court of law. The defendant rights. Aiken stated that he understood these Mullen then telephone. asked the defendant if he desired use the This accepted. offer was not
During interrogation by this Detectives Mullen and participation Church, Aiken talked about his Fair time, homicide. At this exhibit 7 was written Detective signed by Mullen and Aiken. All conversations with Aiken shortly placed a.m., before 5 and he in a ceased cell at King County jail. questioned April Aiken was not until 10 further a.m. on 26, 1965, when Detectives Richard Schoener and Dana interrogated jail. county Shearn Aiken Detectives and Shearn had never met before, Schoener Aiken King County present during not courthouse prior questioning interrogation, of Aiken. Prior to the De- say advised did have to tective Schoener attorney making anything, he had a to an before anything any statement, said could used him in court of law. Aiken stated that he under- proceeded Detective Schoener this admonition. stood signed by During 14, which was Aiken. exhibit write *24 homicide interrogation, the Wolf sketch of Aiken the drew approx- interrogation at signed The concluded and it. scene imately 11:20 a.m. hearing original pretrial he, that
Aiken maintained all repeatedly, requested times; but that at various counsel county jail jailor including at officers, interrogating Bellingham, and the two Leitch, Detective any requests ignored completely made officers, and all him. hearing a aware that such
The trial court at first considering request that at numer- made, could have been tapes, places could not be Aiken’s answers ous prior throughout interrogation, at least heard; spoke head confrontation, he with his down to indistinctly. expressly finding disputed The trial court noted in fact Officer John Leitch 1, however, officers, and the who questioned during period Aiken in Seattle which although requested counsel, that, stated each testified possible, they any request did Aiken not, time, at hear attorney, any person, an or to contact other than Wheat. arresting County officer at Blaine and the Whatcom jailor presence, also that Aiken, testified in their was ex- tremely quiet request and sullen and made no for counsel any at time. testimony,
Believing fully supported by this which was discovering anything tapes record, on the contrary, the trial court entered conclusions as to this dis- holding puted any not, fact did at time, talking audible least words him, officers attorney. (Conclusion request disputed 1—pre- fact conference.) trial discovery
Upon appeared tape court’s what on the (exhibit 11) request pursuant to be for counsel May procedure 5, 1967, and our order of outlined therein, court the trial redetermined the issue. It concluded request that Aiken had made on at counsel least two reading occasions, after Wheat’s statement the Wolf homicide and before the confrontation. The transcription *25 by the trial court reads as follows:
Q. then, You us the if truth, tell this a lie. (A. is I’d like to XQ. see an I won’t mess attorney, around with you.) This matches all the evidence. not physical The guy’s Q. is lying. A. He lying. got We’ve evidence physical Q. at A. the scene. He is lying. What’s he lying about? What’s I lying he about? Tell us lying (A. what he’s about. Q. an attorney.2) want to see Well what’s he lying Q. about? A. He is lying. Where? Q. us
Show where is lying (t)here. A.....3 Just one one it he’s place, place Just one lying. place. Just one that he’s lying. A.....4 place i ana2^]^ court reporter’s transcript indicates that the above indicated indicate the above bracketed statements. at this is response point unintelligible. However,
monitoring would tape appear 3The reveals that Aiken’s at tape answer about this However, difficult is careful point apprehend. again, suggests of a for monitoring possibility request coun sel at this point. at
4The reveals tape point likewise Aiken’s answer However, to be toring again, somewhat indistinct. careful moni indicates either a fourth for counsel request or the “I statement: don’t care to possible say anything else that.” the trial hearing,
As the first court found that Aiken’s an or attorney, to see indication that he requests desired silent, were remain inaudible officers interrogating them. Due to and were not heard of this importance fact, finding of have set out in its we below disputed including given the reasons entirety, support trial reads: finding court’s conclusions.
2. That said inaudible to the requests were interrogat- not heard officers and were them. ing officers did time hear not at defendant request that he did not say or want attorney, anything. The officers did not ignore any for an request attorney or a silent, desire to remain heard no they such requests act not upon could word statement they did not hear. This conclusion based upon the following: contact with a. All enforcement who had law officials they no time the defendant Aiken testified that intelligent request for an attor- heard an audible or they ney If had heard an from the defendant Aiken. intelligent request to remain audible or or desire interrogation stopped; silent, have would b. Prior to the confrontation with the defendant down;
Wheat the defendant Aiken held his head spoke softly, words, slurred his and he let his voice trail off. This confirmed the defendant when during original Aiken testified before the Court pretrial hearing. his testimony During his he slurred spoke softly words, with an accent difficult to understand. questioning
c. The interview room in which the soundproof defendant Aiken occurred interrogat- numerous noises could be heard *26 ing seriously officers which interfered their with understanding responses; of defendant Aiken’s During d. the recorded on interview Exhibit No. 11 interrogating sitting officers not next were Sergeant Instead, defendant Aiken. Chase was across the room behind a desk and Detective Mullen sitting in was Exhibit Nos. 140 and the middle of the room as shown on 141, and defendant Aiken was microphone. close to the not experienced great e. trial The Court and diffi- counsel culty an determining request or whether not for attorney could be heard on Exhibit No. 11. The requested Court’s belief that defendant Aiken attorney possibly upon an having on two occasions based played No. 11 heard Exhibit several times original tape tape on the and machine a new re- Many corder. defendant’s answers on were intelligibility. threshold of With the difficult trying time the Court and counsel have had in said, the defendant Aiken hear what the Court does interrogating that heard, not believe officers nor possibly under all the could circumstances have any request attorney heard, for an or desire to re- main silent. continuity ques- it is from the
Aiken contends obvious interrogators listening that the answers were and tions and attorney, requests especially for an heard Aiken’s consider- interrogator ing expression and tone of voice of the attempt privilege. exercise his after second Aiken’s peculiarly a matter This determination was factual having this and resolved for trial court to consider retry argument adversely defendant, now we cannot involving judgment questions of our of fact substitution finding attacked is based court, that of the trial where the Washington, conflicting Haynes upon 373 U.S. evidence. (1963). Sup. 2d The 516, 513, 10 L. Ed. Ct. who testified trial chose officers court to believe the several unintelligible request made, if that such were carefully by have reviewed them, not heard we findings are its factual determination. are satisfied that We by way fully supported record in no distorted and are properly that found and therefore hold that trial court attorney; requests Aiken for an made at least two but unintelligible requests, made, were, fact, when such interrogating him. heard officers irrespective of the uncommuni- state contends requests Aiken have counsel remain cated or desire of or rights knowingly intelligently silent, these giving prior conduct, confessions, his his ob- waived and articulations. servable demeanor finding difficulty any court no re- trial had attorney part quests Aiken for an desire remain were later after his confrontation silent waived assign the defendant does not error to Wheat. *27 any by dispute the facts relied on the trial court in or of finding conclusion, he contend that this waiver; but does improperly circumstances, was entered as a mat- under reasoning court, of To better understand the ter law. out its conclusions as follows: we have set Voluntary As To The Nature Conclusions And Aiken’s Admissions Of Confessions. any requests attorney stated, As for an heretofore or remain Aiken
desire to silent defendant were inaudi- unintelligible interrogating officers. ble and Not- withstanding requests said the defendant Aiken his knowingly inten- demeanor and observable actions flowing right tionally from such his counsel waived given requests, and his oral and statements were written freely voluntarily. conclusion The Court bases this following findings upon the and reasons: personally a. verified his That the defendant Wheat (Exhibit 3) concerning the Wolf statement homicide at the No. request of Aiken. It defendant the desire to was and caused refute verification Aiken Wheat’s statement that defendant story to tell side set in Exhibit his of forth (Italics ours.) 14; Nos. 7 and b. That within the confrontation five minutes after Aiken,
between again Aiken Wheat and defendant was right any- advised of his to counsel and that thing say against him he did in a could used Understanding rights, clearly of court showed ceeded to law. these give pro- He a desire then statement. give concerning an oral statement only one homicides; but the three prior c. That to the confrontation the Aiken defendant quiet Immediately sullen, and withdrawn. positive thereafter his attitude was and he became spoke clearly appeared upset alert. He and he to be angry with the Wheat; defendant d. That the defendant Aiken was advised at least prior beginning three times of Exhibit No. 12 signing right of Exhibit No. that he had a right counsel, silent, that he had a to remain anything he said could be used him in a addition, court law. In was advised his rights under 31 the Article Uniform Code Mili-
tary testimony Justice. As demonstrated dur- original ing pretrial hearing, the defendant by any Aiken is not dumb or illiterate means or Danny He Escobedo, standards. is not a who was an high He has a illiterate. school education and has military. trained in He been was well aware rights explained prior which had been these to and to him throughout interrogation, and knew that questions he did not need answer after (Italics with the Wheat. confrontation ours.) defendant prior signing e. That Exhibit No. 7 the de- again fendant advised of his to an *28 anything he said
attorney, silent, and that to remain against of law. On this in court him a used could be opportunity to use offered the occasion he was his aware of telephone such use. While and declined sign rights proceeded No. 7 Exhibit without to any request any for assist- and hesitation without anyone; from ance given opportu- Aiken another defendant
f. That request April nity 26, on at 10:00 A.M. counsel to Sergeant and former 1965. At that time Schoener right him of his Dana advised Detective remain Shearn counsel, his and the fact that silent, anything him in a he said could be used Again proceeded Aiken defendant court law. concerning give and homicide a statement the Wolf scene, demonstrat- to draw a sketch ing homicide knowledge of It is to noted that his the area. interrogating Sergeant officers, and the former Detective Schoener present Shearn, not were King County prior to 9:00 on Courthouse A.M. April signed Aiken when the defendant They possibly 5 and 7. could have Exhibits Nos. known not request any for counsel the defendant Aiken; testimony
g. Court believes the several That the they who stated that did not at time officers request Aiken make a an hear defendant attorney, phone express call, to make a or a desire believes That Court remain silent. if attempted requests to be made were made such requests by and Aiken, such were inaudible defendant unintelligible to such That the Court officers. concludes all made de- further statements voluntarily freely given Aiken fendant were fully amply having his advised of after been rights attorney and to remain constitutional (Italics ours.) silent. knowing argues intelligent no there could be circumstances; these since believed under waiver requests attorney, police for an did hear officers receiving requests only one, his conclude could ignored; result, his later incriminations that as had been involuntarily given due in evidence not admissible charged every single police that he threats would be cooperate. count if he didn’t *29 attempts
If
exercise his
Aiken’s
to
constitutional
rights
by
police
ignor
improper
were frustrated
tactics in
ing
requests
agree
duress,
his
or
we would
with the
defendant
that his statements
not
re
should
have been
jury.
ceived in evidence for consideration
The con
enjoins
interrogation practices
stitution
all unfair
which
likely
pressures upon
are
to exert such
an individual so as
making
him
disable
from
a free and rational choice
speak
police.
supra,
whether to
Miranda,
See
supra; Malloy Hogan,
460;
Illinois,
Escobedo v.
378 U.S.
Sup.
(1964).
1, 12L.
Ed. 2d
Ct. 1489
also
See
State v.
(1967).
Kelter,
71 Wn.2d
We compel- with the trial court that it was not a ling atmosphere in-custody interrogation an that caused speak; independent Aiken to part an but decision on his exercising right refrain from further his to silence without self-inspired counsel, advice of when the confrontation purpose bringing repu- with failed in Wheat its about (Aiken) respon- diation of Wheat’s accusation that he was slaying prop- sible for the erly of Daniel Wolf. The trial court undisputed concluded on facts that Aiken thereafter freely voluntarily gave three written statements admitting complicity accusing murders. of his constitutional Aiken’s hold that abdication
We speak part to privilege choice on his remain silent—the knowingly and intelli- police counsel, made without to gently rights apprised and admit- of his after he had been tedly he had the to consult understood incriminating attorney himself. before argues, could be no however, that there The defendant intelligent knowing of his constitutional waiver effectively rights; warned, and conse- since he was not complicity quently know, his admission could not charges expose murder and the him the crimes would just penalty, fired the fatal possible if he had death bullets. police informed
The record discloses charges place any interrogation took before *30 robbery, no clear and there is faced were murder the defendant indicate that that would conclusive evidence gravity concerning any respect, the misinformed, in might punishment he be receive should his offense or guilty. found finding that the de- trial court was of the
The further effectively five times at least warned had been fendant previous experiences fully orally from his understood against him used he made could be incriminations that in a of law. court
Considering have facts, hold, as we with we these put warned, defendant, so is Wheat, that a defendant very complained Aiken, of. under- situation notice of anything standing used as evidence could be he said that may complain he incrimi- court, not now him in pp. ignorances 328, 329. the law. See out nated himself findings regardless and con- contends that supplemental at the the trial court reached clusions jury right, present a hearing, time, this at he has bearing on available evidence trial all of the now at a new de- confessions. The of his of the voluntariness issue right, argument, he has süch is bottomed that fendant’s Collins, 627, 69 419 v. Wn.2d State recent decision on our (1966), respect held, to KPPP P.2d wherein we supra, “may present jury that a 101.20W, defendant giving de novo all detailed facts connected with upon of the confession an assertion of involuntari- which may depend, jury ness be claimed to and if the believes involuntary, they may disregard confession to it.” goes This rule further than the minimum federal process required testing standards of due for voluntari ness of confessions. In Jackson Denno, 368, L. U.S. Sup. (1964), Ed. 2d 908, 84 Ct. 1774 the United States Su preme by jury Court held determination is con stitutionally inadequate by reason of the risk of its confus ing the truth of the confession voluntariness; with its pretrial evidentiary to insure hearing reliable results a is required; and that thereafter redetermination of the issue jury, improper, necessary. while not is not 378 U.S. at 385. The court concluded that a new trial wasn’t necessary jury passed where the alone had on the voluntar iness of Jackson’s confession and remanded the case evidentiary hearing exclusively before state trial court. The court stated: very
At the require least, Sain, Townsend v. 372 U.S. would evidentiary hearing a full to determine the fac- tual given. context in which Jackson’s confession was It does automatically follow, however, Jackson complete including entitled to a new trial a retrial of the guilt issue of [I]f innocence. . . . conclu- evidentiary hearing sion of such an in the state court on *31 the issue, coercion it is determined that Jackson’s confes- voluntarily given, sion was admissible in evidence, and properly by jury, to be considered see no we consti- necessity point proceeding tutional at that awith new already by jury trial, for Jackson has been tried with placed guilty. the confession before it and has been found jury permitted True, the in the first trial was to deal with the issue of know voluntariness and we do not upon whether the conviction rested confession; but if prejudice did, it there is no constitutional to Jackson procedure from the New York if the confession is now properly voluntary found to be and therefore admissible. 344 jury upon Of do so. it, it entitled to
If the course, relied was hearing, evidentiary rede- court, if at an the state confession and decides that Jackson’s termines the facts guilt involuntary, on there must be a trial new was being in evi- the confession’s admitted innocence without dence. equal applies force to
The rule announced above Townsend on new evidence. claims of involuntariness based Sup. 745 83 Ct. Sain, L. Ed. 2d U.S. (1963). hearing evidentiary before therefore hold that the
We judge Aik- alone on the issue of voluntariness the trial re- to meet the minimum confessions sufficient en’s process quirements under the federal constitutional of due standards. procedure, RPPP
However, under our state supra, supra, court has Collins, State v. if the trial 101.20W, voluntary law, a matter of the confession to be as found exclusionary admissibility precluded not rule and affecting safeguards, procedural Escobedo, the defendant’s jury may ques supra; supra, Massiah, redetermine fact, as a matter of as it relates tion of voluntariness jury credibility given weight the confession. The to be measuring disregard may a confession not, however, reject foregoing legal process tests of due judge are not ful confession, would, if the tests Wigmore (Supp. p. § Evidence, 861, filled. 3 See 135). at weight jury, assessing present after
In case the already credibility trial, has of the confessions voluntarily given; they are satis- we found that legitimate effect of the new evidence would fied that the change defendant, as a determination; since the rights mak- law, his constitutional before waived matter challenged ing statements. the trial court’s undis- held from have heretofore
We really findings, Aiken to puted caused admit that what alleged slayings, complicity not the denial of his interrogating rights officers; was an but constitutional
345 con- part, face-to-face after the independent on his decision proceed counsel without Wheat, to frontation with as rebutting of him accusation Wheat’s make a statement slaying. triggerman in the Wolf the findings, not could minds reasonable of these In the face credibility weight Aik- concluding that the differ in alleged by earlier the affected were not en’s confessions safeguards. procedural denial of his the evidence therefore, that reconsideration hold, We the by jury necessitated, and that this time is the by process this determi- not denied due defendant Aiken is nation. failing grant in trial erred
Aiken contends the court recording; tape opportunity the him a to review reasonable during allowing tape played by only the once to be the requests courtroom, in a course of trial crowded by appreciated the defendant or attor- counsel were not neys. produce
The record shows that after motions to by court ordered the defendant, made the trial were tapes impounded placed possession in of the be reporter, impartial party. an Due to their unintelli court gibility reporter trial court had the court transcribe recordings copies for the convenience and make available proper precautionary measure fol of counsel. This was impor by preservation of this court for the lowed the trial tant evidence. transcription copies further record shows given the court counsel and addition allowed during
playing
tapes
open
pretrial
hear-
court
pro-
ing.
procedure
the trial court in the
followed
tapes
presentation
in evidence was
duction and
of these
Thompson, 54
v.
within
trial court’s discretion. State
(1959);
Robinson, 61
100,
Remaining Assignments Of Error Defendant Aiken contends that the standards for volun- of tariness admissions or confessions contained in the court’s instruction No. 24 incorrect, were and in- erroneously given. disagree. struction was We The instruc- adequately jury tion advised the that confessions and ad- freely missions, in order reliable, to be considered must be voluntarily given by and and not caused duress or fear by produced particularly spelled threats. This is out when No. 24 instruction is considered in connection with the fol- lowing special interrogatories by which were answered jury:
Interrogatory No. 1: any alleged
Were of the oral or written admissions or by by confessions made Aiken defendant caused duress produced by or fear threats? (Yes No) No or Answer:
Interrogatory No. 2: alleged Were said admissions or confessions by by
made ments or Aiken defendant obtained means of induce- promises? (Yes No) No or
Answer:
Interrogatory No. 3: alleged all of
Were said admissions or confessions freely voluntarily by made defendant Aiken? (Yes No) Yes or
Answer:
Interrogatory No. 4: arriving your you In verdict did said al- consider
leged admissions or confessions? (Yes No) Yes Answer: and Aiken
Wheat
both contend the trial court erred
denying
change
by
their motions for a
of venue
reason of
disagree.
record indi-
publicity.
prejudicial pretrial
We
restraint to
remarkable
exercised
that the news media
cates
a fair trial
prejudicing
defendants
avoid
nothing
pretrial publicity. We find
reason of
incriminating
publication
statements
record
as
prior
to trial
disclosed
that were
made
defendants
interposed,
separate
trials were
when motions for
denying the
applications
mo-
for
order
when
review
then been
court,
could have
made to this
which
tions were
published.
were not
are
defendants
We
satisfied
pretrial
publicity,
fair trial
reason of
denied a
change
properly
venue were
denied.
that the
for
motions
deny-
contend the court erred
both
ing
separate trials;
could
that a fair trial
their motions
jointly,
they
in this
if
tried
case
be obtained
were
they
other;
and that
confessions
one involved
accusing
each
commission of
crimes.
other
*34
granting
rule is
that the
established
well
a motion
of
denial of such
is within
discretion
the trial
of a mani
court, and will
be disturbed
absence
Baker,
10.46.100;
fest
of discretion.
v.
150
abuse
RCW
State
(1928);
272
80
82,
Courville,
Wash.
Pac.
State
63 Wn.2d
ruling
(1963).
498,
ant could the defendant granted, separate tried; if trials were the state and military required keep authorities numerous would jur- personnel, witnesses, service as endorsed within period isdiction for an of and that said extended time military possibly retention could duties of of interfere with personnel; except said that the written statements portion each of dence admissible of defendants, a substantial the evi- against probably one defendant would against defendant; be the defendants’ most of admissible the other that substantially are consistent statements separate granted, other; each if trials, that would upon King cause an economic unreasonable burden lawyers, jurors County court, in that the witnesses 348 required long participate expen-
would be two sive trials rather one; than .... granting separate That the of trials cause the would delayed trial of one of the two defendants to be an unrea- length present time; sonable of time, that at the showing defendants have not made a as to whether their antagonistic defenses at the time of trial will be other special plea insanity by than the the of defendant Wheat and contradictory portions of statements; defendants’ jury, the court will instruct as often it deems
necessary, they against cannot consider as evidence either one of the defendants the out of court statements presence one hearing codefendant made out of the other codefendant; that at this time the statements of the defendants have not been admitted into evidence; that the court does not know whether said statements are admissible; that when two defendants are accused arising same crime out the same circumstances, the Washington Supreme Court and the United States Su- preme Court have held that it is not an abuse discre- try together, tion to them .... special plea temporary insanity record shows the by defendant Wheat was withdrawn before trial. It further separate during shows that occasions the trial the jury warned the confessions and statements made only defendants were to be considered person making the statements. The trial court did not abuse denying separate its discretion in the motions for trials. See Delli Paoli v. United States, 232, U.S. L. Ed. 2d Sup. (1957). Ct. 294 denying
Aiken contends that the court erred in his mo- charged tion for dismissal of count with which he was *35 Harp the information. This count related to the James hom- icide, asleep in which the defendant contends he was in being car Wheat’s when the crime was A committed. re- following: view of the record shows the together early Friday evening, The defendants were from April morning 23, 1965, until dawn the next after the suggested they murder. Aiken stated that Wheat “hit” the Douglas go station. Aiken knew left Wheat the car to into Harp dressed. was Aiken James knew how the station. to the all entrances position a to observe Aiken inwas automatic .25a caliber armed with service station. He was kill James pistol. pistol used to was .22 caliber Aiken’s prior Harp. participated robber- in two with Wheat Aiken their attendants. and murders of ies of service stations very pattern instances similar followed those was Harp robbery Douglas and James the Service Station jury the state- entitled to disbelieve homicide. was asleep participate. did of Aiken that he and ments was ample which, if the record believed There was evidence in together jury, inferences to be with the reasonable finding justify jury in Aiken therefrom, drawn would robbery Douglas accomplice an Service Harp homicide. Station and prejudicial contends it to him to intro- further photographs Harp repair regard-
duce claim checks ing Harp’s are without wristwatch. These contended errors robbery They merit. were material to evidence of the Harp jury to find homicide, to which the was entitled accomplice. an that Aiken was giving
Aiken contends
court erred in
instruc
defining aiding
abetting, in
tion No. 14
could be
presence
person
inferred
a
at the
that the
scene
asleep,
a
crime, even if
sufficient to
con
would be
sustain
including
principal as
viction.
9.01.030
one
RCW
defines
may
offense,
aids
who
or abets the commission of
who
present
at the
crime. The
or absent
scene
instruc
be
person
spells
that in order
an aider or
tion
out
for
be
ready
presence,
his
abettor
must
assist must
presence.
perpetrator
of the crime
Instruc
assist
conformity
No.
law
tion
14 is a correct statement of the
given.
supra,
properly
statute,
and was
State v.
(1946).
Clark,
Redden,
Wn.2d
P.2d
State
(1967).
71 Wn.2d
that he was to exercise his challenges. prejudicial resulting There can no be error therefrom since the 12 defendants were allowed additional peremptory challenges provided by Moreover, not statute. objection there no was made to the court’s denial of challenges peremptory Wheat’s lenges for cause after his chal- except juror exhausted, had been the case of Symington. juror This indicated that he in favor of the penalty by being death reason criminals turned of loose juror ultimately regard impos- The stated, courts. to ing penalty, every give the death he “. . . would consideration before I decision,” would reach that and that impartial.” granting he “. . . would be or denial challenge for cause is within discretion of the trial judge, and will constitute error in reversible the ab- sence of a manifest abuse of discretion. see no We manifest abuse of discretion in this instance. contends, however,
Wheat further that it im proper inquiry juror’s for the trial make court to into the qualifications which evi constituted a comment inquiry only dence. The of the trial court went ability impartial of the veniremen to serve as fair and jurors proper. and was excusing
Wheat contends the court erred in 18 venire- they men for cause who not in indicated favor penalty. death This contention is without merit. No venire- permitted juror man should serve be as unless he is willing apply proper state to a laws of this case. contrary express provisions defendant’s contention is 10.49.050: RCW Challenge cause—Capital case—Conscientious scru- ples. person opinions preclude No whose are as to such finding any guilty pun- him from of an defendant offense compelled ishable death shall or allowed serve juror as a for on the trial of indictment information offense.
such an
Mahoney,
633,
v.
37
Also see State
Wash.
Pac.
(1922);
Riley,
(1923);
v.
State
126 Wash.
Wheat detailing opening statement, in the manner conduct in the victims in the the time one of which shots were fired at highly attempting to rise the that floor; from inflammatory prejudicial, resulting fair in a denial of a the trial to defendants. pre
The these were record shows that statements warning they faced with the were not evidence but that prove The to outline of what state intended trial. prosecuting attorney was entitled to make such statements by long they supported as as evidence reasonable were of the therefrom, inferences material to issues were introduced case. record that evidence was discloses supported therefrom, which, with the reasonable inferences prosecutor. They relevant to these statements were killings for the the viciousness and show callousness jury’s degree punishment of im consideration of the to be posed, guilt. finding event of of the defendants’ trial in
Defendant Wheat contends the court erred failing testimony permit expert give to two witnesses to jury concerning persons of rehabilitation convicted first-degree The record these had murder. shows witnesses never the defendants this case. The materi interviewed testimony, ality any, qualifications their if and the purported experts were for the trial court to deter matters mine in the exercise of find its discretion. We no abuse regard. its discretion in this both contend the trial court erred
failing
suppress
.22
introduction in evidence of the
upon
duffel
caliber revolver seized
the search of Wheat’s
bag,
grounds
that it was the fruit of an unlawful search
hearing
and seizure. The trial court after
extended testi-
mony
pretrial hearing
on this issue in the
concluded in an
undisputed finding
voluntarily
that
the search was
con-
sented
Wheat,
was, therefore,
no
there
un-
lawful seizure of
revolver.
The trial court
not err in
did
admitting this evidence. State v. Johnson,
71 Wn.2d
(1967).
Wheat contends the court erred attorney, Anthony Savage, give testimony Aiken’s Jr., to state, Wheat’s emotional as disclosed statements Airman Milton Johnson, at time of his detention at hearsay testimony Paine Field. This constituted and was ruling inadmissible. the trial court was correct. permitting Wheat asserts the trial court erred in expert testify spent cartridges the FBI ballistics ejected found at homicides revolver, from Aiken’s contending they (1) persons were not traced as to handling through agencies them the different while the (2) hearsay made; tests were that the evidence was as the *38 present defendant was not made; when the tests were (3) the conditions under which the tests made were were corresponding present not under to those conditions when go primarily the shots were fired. These contentions to the sufficiency support of the evidence. find evidence the We to adequate trial court’s determination of the of identification spent cartridges, the and that under the tests were the expert give qualified opin direction who was his jury’s the As ion for hearsay, to the contention of consideration. part trial, in that the tests were not the the having expert qualified once was entitled to relate been the express opinion in test conducted and his relation thereto. jury give testimony expert had the weight upon it entitled, which it which the believed was jury adequately supra; Leuch, State v. was instructed. See (1928). Gruber, 66, State v. 150 272Pac. 89 Wash. battery a GT-1 automobile erro- Wheat contends was neously sufficiently evidence it introduced in as was not merit. The evidence identified. This contention is without battery type missing from the it was a GT-1 shows Station, inventory which Oil Time Service robbery, after- days and which checked 3 before goes assigned error car. the defendant’s found in wards admissibil- weight rather than the evidence to the (1958). ity. P.2d 1074 324, Duree, State v. Wn.2d refusing to erred in trial court contends the second-degree jury murder. on the offense instruct second-degree support in murder There no evidence to is guilty guilty or not the record. The defendants were only. first-degree murder in not court erred Aiken contends the trial
Defendant granting of the statement him trial the basis a new argument attorney prosecuting in his made possession jury purchase .25 of a relative to Aiken’s justify no evidence revolver; caliber that there was and the detail the comments such comments. need not We there discloses Our of the record evidence. examination drawn from inferences that could be reasonable justify evidence to such comments.
Finally, that the trial is contended Wheat addressing jury, requiring him, court erred in before go beyond put writing and not to statement unsworn procedure. It statement. We find no error a defendant within the discretion of the trial court to allow separate represented address to the counsel to make a People jury. 149 N.E.2d Richardson, 224, 4 N.Y.2d See 10)) (1958). (Const, (amendment § The trial art. court, the witness stand mindful that Wheat had taken making correctly him that defense, in his advised own jury, open to cross- he would be his own statement to by the evi if he discussed facts not covered examination *39 to make the case. As the defendant was allowed dence in only jury, subject limitation, we to this his statement to the no see error. Aiken
We are that both defendants Wheat satisfied judgments entered and sentences received a fair trial. The jury upon the verdicts are affirmed. Hale, JJ., J.,
Finley, C. Hill, Rosellini, concur. (dissenting)—I agree J. cannot the ma- Donworth, jority opinion in these because, two cases after an exhaus- tive examination of the I am briefs, voluminous record and rights guaran- convinced that both defendants denied teed them the fifth 'and sixth the United amendments to applied by States Constitution as construed and United Supreme States Court in recent decisions. stating my dissenting, ap-
Before
I
reasons for
think it
propriate
quote
impartial
definition of a fair and
trial
approved
which this court has
on several occasions. It is
Lindsey,
stated in State v.
186, 191,
supra [145 44, Wash. 826]: 258Pac. question impartial “The involved is that of a fair and Pryor, trial. In State v. 67 Wash. 121 Pac. court said: “ ‘A fair trial consists not alone an observation of recognition just the naked of law, forms in a and a but application principles.’ of its “It is the land, law of the vouchsafed people partakes direct written law of the of the state. It play pervades of the character of fair which all the activ- people, sports, ities of the American whether in their society, religion business, or the In law. the maintenance government to the extent it is committed to the courts lawyers and is in the administration the criminal law, just as essential one accused crime shall have a trial as it is that he he all, tried at whether he he fair guilty picture rogue’s gallery not, has his or not. ” (Italics mine.) . . . again majority That case was heard en banc and a departmental opinion. court adhered to the my opinion In fair neither these defendants had trial, and hence each them is entitled to a I new trial. separately. shall case discuss each Appellant Lest one led to that the effects of this believe case will governed by accused, die with the since future cases will be
355 stringent by the more rules set forth the United States Supreme 436, 16 L. Arizona, in Miranda v. 384 U.S. Court (1966), appellants Sup. Ed. 694, 2d 86 Ct. 1602 these while judged Illinois, Escobedo v. must be under the criterion of (1964), Sup. Ed. 1758 478, 977, 378 L. 2d 84 Ct. U.S. 12 here should stressed that the central issue is waiver be right. governing that im constitutional rules set forth portant principle remain future cases will and will control largely in state, this even under Miranda standards. It is by majority opinion concept the violence done to that compels my my in It this case that dissent. is firm belief single that no the harm conviction an accused worth may by ruling. safeguards done Constitutional be this upon expediency. It must must be sacrificed the altar be remembered that:
[Ujnfair doing may happen justice means to result prisoner particular yet, justice so at- case, in the community. unjust dangerous tained, is to the whole People, (1872). Hurd v. The 405, 25 Mich. 416 today, always thought apparent Until I had it too require explication right that “waiver” of a constitutional by required voluntary an accused either some affirmative expression by accused, in word or in or at deed least a voluntary knowing acquiescence right loss supra; Illinois, him. Miranda v. Escobedo v. Arizona, supra; 314, Brookhart v. L. Ed. Janis, 1, 384 16 2d 86 U.S. Sup. (1966); Ct. 1245 Zerbst, 458, v. 304 U.S. 82 L. Johnson (1938); Carnley Sup. Ed. 1461, 1019, 58 357 Ct. 146 A.L.R. Sup. Cochran, 506, 70, v. 369 8 L. Ed. 2d 82 Ct. 884 U.S. (1962). See, also, States, Glasser United U.S. (1942). Sup. L. Ed. Ct. 457 majority opinion
But, case, in this it is held suffi- interrogators attempt cient if “do not hear” the accused’s right previously has, assert the which he has been told desperation, attempts and he thereafter, to remove the finger guilt by seeking from himself to have his accuser having attempt, accusation; and, retract his failed finally guilt. confesses his here—appellant Aiken did not
Let no mistake made acquiesce; he succumbed! indisputable
It is that even fundamental constitutional rights may Illinois, Escobedo v. be waived accused. federally supra. question However, the of a waiver of guaranteed question, con- constitutional is a federal *41 supra. Janis, Brookhart trolled federal v. law. strong against presumption law, a
Under federal there is rights, and, for a the waiver of fundamental constitutional clearly effective, waiver to be it must be established relinquishment there “an intentional or abandonment supra right privilege.” Zerbst, v. of known or Johnson (Italics mine.) 464. given foregoing principles reiterated con- Supreme application by
crete
the United
Court
States
supra
Arizona,
Miranda v.
at 475:
interrogation
presence
If
the
the
continues without
attorney
heavy
taken,
an
and a statement
is
burden
government
rests on
to demonstrate that the defend-
the
intelligently
knowingly
privilege
ant
waived
right
and his
to retained or
self-incrimination
appointed
Illinois,
490,
Escobedo v.
378 U.
counsel.
S.
always
high
proof
n. 14. This Court has
set
standards
rights,
Zerbst,
v.
for
of constitutional
Johnson
the waiver
(1938),
re-assert these
and we
standards as
U. S.
in-custody interrogation.
applied is
Since
State
establishing
responsible isolated circumstances
interrogation
place
takes
and has the
under which the
making
only means of
available corroborated evidence of
during
warnings given
interrogation,
incommunicado
rightly is
its shoulders.
burden
willing
express
An
statement that the individual is
attorney
make
lowed
an
fol-
a statement and does not want
closely by a statement could constitute a waiver.
simply
presumed
not be
from the
But a valid waiver will
silence of the accused after
warnings
given
simply
are
eventually
from
fact that a confession was
fact
Carnley
Cochran,
A
statement we made
obtained.
(1962), applicable
here:
369U.
is
S.
“Presuming
impermis-
from a
waiver
silent record
show,
The record
or there
sible.
must
must be
alle-
gation
show, that an
and evidence which
accused was
understanding^
intelligently and
offered counsel but
Anything
not waiver.”
rejected
less is
the offer.
(1942).
States,
Nor rationally to be a construed frontation with Wheat be just attempted to assert without had waiver eyes to the facts hold, one must close his success. To so interrogation.1 accusing him Aiken had statement been shown Wheat’s killing (Aiken) having “triggerman” in the been interrogating Aiken that the Daniel officers told Wolf. physical evidence, and statement was corroborated only way “help to “tell the he could himself” was that the *42 seeing apparently hopelessness Aiken, truth.” the of his requested counsel, and the re- situation, assistance of the quests went unheeded. expressed Aiken the in- his desire discontinue
When terrogation, “cooperate” told that if he did not charged every single words, In “on count.” would be other first-degree charged Aiken three murders would be only escape avenue for of one. The conceivable of instead confessing, attempt get Aiken short of to Wheat to was to accusing Aiken tried statement, retract his and this is what knowing intelligent interpret to do. To this action as right voluntary expressly requested of to coun- waiver his fly sel seems to me to in the face of reason. statement,
When Wheat refused to retract his Aiken’s “breaking” as the result this entire chain circums of of transcript interrogation, The written of made the court Aiken’s reporter recording 11, tape from the admitted in evidence as is exhibit Although appendix. incomplete, an illus included this dissent as it compelling atmosphere in which trates Aiken’s confessions were appreciation predicament, however, taken A full of him. Aiken’s from hearing gained only recording can be from itself. was almost inevitable. As United States
tances2 Illinois, Court out in at Supreme pointed Escobedo supra 485:
“It that, cannot be doubted in the placed position which the accused was when the statement was made to him that the other him had suspected person charged with crime, the result was to his mind the produce upon fear if he silent remained it would be considered an admission of and therefore render his guilt, certain being committed for trial as the guilty it cannot be person, conceived that the converse would not also impression arisen, have there of naturally by denying was hope from removing himself.”2 suspicion speculate 2I it think idle to as which of several coercive elements interrogation of an incommunicado “result” the confession. The get attempt confrontation with Wheat and failure of Aiken’s may Wheat to retract his statements have been the “straw that broke back,” apart the camel’s but its effect cannot be considered from the circumstances in which occurred. it yet Escobedo, 3This case contains another element in common with ignorance part consequences on the of of of the accused participation supra Escobedo, 486, admission of In robberies. Supreme pointed “Petitioner, the United States Court that: out undoubtedly layman, was under admission unaware that Illinois law an complicity damaging plot legally of ‘mere’ in the murder as as an firing Escobedo, admission fatal Illinois v. 28 Ill.2d shots. ‘guiding 190 N.E.2d 825. hand counsel’ was essential to advise petitioner rights Alabama, of his in this delicate Powell v. situation. U. S. 69.” only Here, presumption, in addition I can to this there existed what interpret misleading interrogated Aiken on this deliberate point. During interrogation, after had been shown the state- accusing shooting (Aiken) Wolf, ment Wheat him actual repeated requests gone unheeded, Aiken’s had counsel after you your give “Now, officer told Aiken: haven’t had a chance to side Maybe you along killing. it. and Wheat did don’t We fust right Everything pointing you, know this. now is and these very lying charges, are serious homicide and about murder. If *43 you statements, him, him, the that didn’t kill Wheat killed we want if along know ... . statements to that effect . . . with certainly your statements, these but . . we want listen side . charging you with murder . . . not until have chance to tell us.” (Italics mine.) lay my opinion, statement, In such a made to this defendant under interpretation circumstances, one in all these attendant can bear but implication mind of of in the the that defendant—that the admission fact that neither the concluded, therefore, must It be more in one or Aiken did confess eventually participation Wheat, crimes, nor the confrontation requested Aiken had told even occurred after been though both counsel, had a can reasonably interpreted right waiver of that under the circumstances presented. finding is the
Central thesis of “waiver” majority’s not “hear” of the trial court that did interrogators Aiken’s find for counsel. This appellant Aiken’s repeated requests Aiken which is on this ing, challenged by appeal appellant and which is set forth verbatim in the majority opinion on factors be sum page may was based several which hear marized as the said did not (1) they follows: officers individual; Aiken (2) soft-spoken (3) was a requests; the room and outside “interview” was not soundproof noises communication; interroga interfered with (4) tors did Aiken;5 not sit “next to” (5) appellant difficult to understand recording on tape interrogation.6 robbery guilt first-degree alone is murder—and not admission participation robbery separate offense, legally, in the from is a participation The officer I deem such homicide. knew better. misleading wholly impermissible. deliberate of the defendant regard they 4The trial court also noted in this that “if [the officers] intelligent request
had heard an audible or a desire to remain [sic] silent, interrogation stopped.” speculation would have This kind of place as to what would have been done “if” has no a trial court’s findings of fact. 5Highly significant, by majority, finding but overlooked is the of the trial court that “defendant Aiken was close to the micro phone,” which, nevertheless, picked up spoken request for counsel. acquaintance recording 6Even casual with the mechanics shows probative determining intelligibility this fact has no value in recording others experience room where the was made. Our own arguments apt with oral before this court serves as illustration. All oral arguments magnetic tape. Counsel, before this court are recorded standing podium clearly by at the before the court can be heard sitting members the court at the bench. He can also be “heard” microphone placed immediately However, which is in front of him. steps though board, clearly when he to the exhibit he can still be heard court, longer members can no be “heard” microphone. Upon replay tape chambers, voice, of this counsel’s *44 argument
However, the con- overlooks the that our fact cern here is with the counsel to which “waiver” of indisputably Aiken was entitled at the time. may be,
Whatever else it an intentional relin- waiver is quishment necessary abandonment, intention is and the part that of the accused. No act or failure to act on the interrogators conceivably his can have construed to been part an intentional on waiver Aiken.
Therefore, if waiver in this is to be found (failure interrogating circumstance officers “hear”), knowing logically it must on Aiken’s be based successfully failure rogators. inter- communicate his desires to his knowing alleged But this such a failure is not even case, nor are there facts in the could reason- record which ably support allegation such an had it been made.7 770,
In 2d Sain, 293, Townsend v. 9 L. Ed. U.S. “drug Sup. (1963), purportedly Ct. 745 which involved a Supreme induced” Court confession, the United States page applicable principle: stated, at significant drug may It is adminis- that the have been questions by persons unfamiliar with tered and the asked hyoscine’s properties proper- serum,” if these as a “truth Any questioning police officers ties exist. which product produces of a a confession which is not fact confession inadmissible. free intellect renders that e.g., usually See, v. so stated the test. Stroble Court has 181, 190: “If the confession which California, 343 U. S. involuntary, petitioner made . . . was fact . . . .” And in Blackburn conviction cannot stand Alabama, held irrelevant absence 361 U. S. we purpose part ques- improper evidence son mine.) (Italics tioning officers. barely board, inaudible, or audible. exhibit while stood though Following analysis, conclude, one would have to the trial court’s portion incorrectly, the court could not hear that counsel’s argument. sufficiently microphone, requests aloud, that a so 7Aiken made his up request equally away, picked placed as it did as well some feet responded many heard and his which were of his statements twice, interrogators. request repeated for counsel at least and his He his interrogation at least once. terminate the desire to only pertinent inquiry to the effect relates Therefore, the interrogators interrogated. of his Aiken of the failure on the legal repeated request or for assistance for to honor his kept interrogation. inquiry, must be In end to the believe firmly Aiken to existed no reason in mind that repeated requests had not been heard. perceive being I no distinction case, can This existing here question the circumstances of waiver between *45 requests and accused are heard the of the and those where clearly, nothing deemed ignored. record can in this be And intelligent voluntary, knowing, and waiver a to have been by appellant Aiken. request given express for the assist-
Therefore, Aiken’s right, I of that can the denial and effective ance of counsel possible that, the exist- under conclusion but of no conceive I Aiken’s excluded. would ing must be confessions law, retrial the remand for absent and his conviction reverse him as the result of this from extracted statements interrogation.8 lays great many majority on Aiken told stress the times was 8The no the assistance of But such is entitled to counsel. advice that prerequisite “protective dispel the to device to more the waiver than interrogation.” Arizona, compelling atmosphere of the Miranda v. only Sup. Ct. 1602. Waiver can exist as to 2d U.S. L. Ed. right advised, right, an accused is so the is deemed known and until to him and no waiver can occur. unknown i.e., prerequisite exists, fact that this to waiver But from the was, right,” there it does follow that
accused “warned knowing relinquishment Waiver, again, fact, of the is waiver. right. known warnings given here, Additionally, I of the however cannot conceive being they repeated, characterized as as is “effective” often Supreme required in Escobedo. Court warnings (1) purpose to The of the is overcome inherent interrogating atmosphere, (2) pressures to the indi- of the “show interrogators prepared recognize privilege his that his are vidual supra. Arizona, And, Miranda v. to exercise should choose it.” purpose fulfilled, course, the former latter cannot be. unless the warnings given case, denial of in this followed effective that very right exercise, respects. Aiken tried fails in both I cannot which “effectively” agree, therefore, advised of either was ever right to counsel or his remain silent. My disagreement point majority next with relates appellant entitled, that he is under Aiken’s contention present jury the re- 101.20W, RPPP to the fact of his quest for the assistance of counsel. argument majority point fails to make admissibility of evi-
the fundamental distinction between weight dence and the accorded that evidence. be Pleading, (d) Rule Practice Procedure 101.20W provides, part, trial court has held after hearing regarding admissibility threshold a chal- lenged confession: judge
If the trial rules that the confession is admissi- (1) may ble, and it is in evidence: the defense offered evidence, witnesses, offer re- cross-examine the surrounding spect to the circumstances confession (4) if the defense raises the issue voluntariness under (1) jury they may above, the shall instructed give weight credibility confession, such of surrounding they circumstances, view the see fit. *46 (1966), In Collins, 627, State v. 69 419 Wn.2d P.2d 590 this court that: stated quintuple [T]he defendant at all times armed is with
safeguard prevent to the use of forced or false confes- (1) If sion. he need knows he not make a statement all, not; he is free to confess or the choice remains (2) right If him. he of his to with knows consult counsel answering any question, probably before will not (3) to be overcome. If he is allow will assured of his right anything says may remain silent and to be right in evidence and also of his used to consult subject physi- counsel, too that he knows he cannot be (4) judge passes cal or fear of violence. trial force The upon confession determines as a fact whether the involuntary freely voluntarily or confession given. (5) may present jury The de defendant giving the detailed connected with the novo all the facts of upon which an assertion involuntariness confession depend, may jury be claimed believes the if involuntary, they may disregard it. confession 636) mine.) (p. (Italics
363
recently,
Piche,
583, 588,
Even more
71
State
Wn.2d
(1967),
P.2d 522
430
this court said:
conflicting
If, from
evidence as to the circumstances
surrounding
taking
giving
confession,
or
voluntarily made,
court finds the confession was
it be-
prima
Streeter,
comes
facie admissible. State v.
67 Wn.2d
(1965);
39,
Gersvold,
900,
P.2d
State v.
66 Wn.2d
(1965);
Darst,
In appellant it is Aiken be right. weight given afforded this these confessions be- paramount importance comes of in view of the fact that the jury, only alone, and it guilt determines not fact of punishment innocence, but also imposed whether the to be Rhay, shall be In death. re White v. Wn.2d 390 P.2d (1964). 9.48.030; RCW RCW 10.49.010. The statements essentially involved in this case are in- flammatory going beyond nature, the fact of the commis- sion of the crime to the may details of their commission. It weight well be that accorded these statements was jury crucial in rendering the determination its impermissible deny any verdict, I think that it is criminally adequate opportunity present accused an all bearing evidence favorable to him on the issues involved, and I further feel that this court cannot do so where such a *47 by guaranteed supra, RPPP 101.20W, is all criminal generally. defendants jury, connection,
In this the court instructed the in in- struction No. that: by a defendant confessions made or Admissions or charged admissions confessions crime, such when with given or voluntarily duress by fear not caused are jury in considered
produced threats, are to be in in the case evidence all the other connection with guilt accused, and determining of the or innocence any is to weight fact, other evidence, like that their any you by you such alone. If find that determined freely and voluntar- have been confessions admissions weighing right, you in such ily testimony, connected case, have made in this circumstances facts and all the consider together inter- defendant’s therewith, knowledge, if any, transaction, and his est, if any, surrounding same, and circumstances had any light upon may throw which circumstances all other or aid sions duty you testimony. weighing If find admis- you such voluntarily, your made not or confessions disregard the same. argument, the lack of final stressed prosecutor, in jury telling that: request Aiken, aof evidence con- of evidence not one shred one, no has been There they did [the officers] them tradicting warn that the fact rights. [appellants] their argu- appellant Aiken], in his Egger [counsel for Mr. say anyone you, says the Defendant did
ment gentle- rights, and, ladies and Aiken was warned contrary put Egger evidence has men, Mr. forth Seldomridge, Eisner, Mr. Goff, Mr. of Mr. evidence Chase, Mullen, Detective De- Leitch, Detective Detective Schoener, all whom said that Church, Detective tective requested Aiken never counsel. the Defendant you Egger like to believe would did re- Mr. only testimony quest counsel, there has been no relative that; there has been no evidence relative to that. upon You to determine this case the evidence are you heard, there is no reason to disbelieve these many many, who that he did not make officers testified request, such a and that he was warned all of his (Italics mine.) rights. jury, response interrogatories submitted to they
them, stated that considered the confessions volun- tary, reaching did consider them in their verdict.
365 Denno,9 v. Jackson The on based majority’s argument, (1964), 1774 908, Ct. 12 L. 2d 368, Sup. U.S. Ed. issue since on this Sain, bearing Townsend has v. no supra, Rule 101.20W by that required it concludes the procedure as those required meets the minimum federal standards is made no contention I But agree cases. must that it does. not. Appel- that it does or case, impliedly, in expressly the “safe- he is entitled lant Aiken contends that merely rule, valid constitutionally afforded him under this guards” I also and with that contention agree. 861, Evidence, p. § 3 J.
The then cites Wigmore, majority a disregard may for a not the jury proposition legal the “foregoing” it against confession by measuring aas of the confession judge tests due and reject process if not fulfilled. would the tests are
In
of
short,
admissibility
determine
jury may
v. Denno, supra,
Jackson
de-
Indeed,
a confession.
under
constitutionality
challenge to the
of
9Jackson
Denno
a
involved
which, if
the so-called “New York” confession rule under
there existed
upon
a factual
in the
to voluntariness
conflict
evidence as
which
judge
question
differ,
of
reasonable
could
left the
voluntariness
men
admissibility
jury
confession,
of the
to the
determined the
who
well
guilt
Supreme
as the
or innocence of the accused. The
Court held that
process
disputed procedure
denied the defendant due
law. How
express
given
ever,
approval
procedure
in
case to the
followed
giving
question
jury
Washington, of
in
to the
the threshold
after
legal admissibility
made
determination
In a
court.
footnote,
properly
the court said: “Once the
is
confession
found to be
voluntary by
judge,
jury
reconsideration of this issue
does
improperly
jury’s
not,
course,
affect
determination of the credi
bility
probativeness
or
of the confession or its ultimate
determination
guilt
(Itailcs mine.)
or innocence.”
quotes
majority
The
from Jackson
the effect
that Jackson was not
complete
including
automatically,
entitled
a
trial
new
a retrial of the
guilt
The
issue
reason
innocence.
was obvious
that case. No
jury
evidence was shown
exist which had not been before the
in the
first trial.
majority
states,
bar
explanation,
case at
without
applies
equal
“The rule
with
force to
.
.
.
claims
involuntariness
Sain, supra,
on
based
evidence.”
citation to
new
Townsend v.
is
wholly
having
only
inappropriate,
duty
that case
dealt
of a
evidentiary hearing
petition
federal
court
hold
district
concluding
corpus
that,
(which
habeas
under the facts of that case
hearing
kind),
included
of a
such
new evidence
must be held.
subsequent
quoted passage Wigmore,
cided
jury
constitutionally
trial
cannot
be made the determiner
admissibility
of a confession.
jury
But the fact remains that the
is the sole and exclu-
weight
sive
given
determiner of the
evidence,
includ-
ing
Wigmore,
confessions. 3 J.
quotes
§
Evidence,
approvingly from Burton v. State,
made, those under which the declared, Court as they voluntary. weighing law, matter of sions, were In confes- jury necessarily upon the consider those facts admissibility, having voluntarily which their made, reject been depends. power jury While there is no in the to being incompetent, the confessions, as there is no power jury weight in the Court to control the to given jury may, be of to The therefore, in the exercise facts. authority, province, and their within their determine untrue, confessions are or that the not entitled to grounds weight, upon they voluntarily the that were not passes upon merely The Court made. the facts for the determining competency purpose their and admissibil- jury pass upon ity. the facts, same and connection The determining facts, if there are other facts, other any, true, are confessions and the entitled to whether weight. jury much Court and each have a how well- province.” (Italics separate mine.) defined again majority’s quest Wigmore, is fruitless, the for Thus applicable question that his text extent to the supports the presented all, rule followed state, this 101.20W(d). Again, provides that rule that Rule the after admissibility passed the of a has confession in a court hearing, right present accused then the the has to threshold his jury, determine is to the which that evidence anew penalty shall which guilt case, the in this innocence, and, upon imposed his conviction. justify finally denial majority attempts their ground “reason- right appellant that the Aiken on weight concluding not differ in minds could able affected credibility of Aiken’s confessions safeguards.” procedural alleged denial of his earlier argument re- apparent that such In the realization conclusion, quires the mere statement more than contending majority this stand seek to bolster legal (the request assist- fact Aiken’s evidence” “new change jury’s ance) determination because could not right request, as a matter had, waived after of law! indefensibility argu- logical of such an from the
Aside striking thing that, me is ment, the most such effectively subtly abrogate majority holding, 101.20W(d) entirely! provision For, Rule if determi- by the court suffi- as matter of law is nation of waiver right present defeat an accused’s the evidence cient to logically jury, then can exist in no anew *50 (d) “safeguard” afforded of Rule section case. 1Q1.20W only court, the trial the exists threshold after hearing, the admissible as a matter has found confession of determination, the court to make that he law. In order law, the waived matter of that accused find, as a must permitted right and, silence, unless was counsel be- to right that he waived his to the assistance confessed, fore finding waiver, Therefore, the as a matter of of counsel. every the can case before court admit made law, must be (before jury the can consider the confes- the confession “safeguard” provided by sion), the Rule and before finding (d) play. If the a into waiver as comes 101.20W right extinguishes to an accused’s the latter of law matter beginning. simply the safeguard, not exist from did majority holds “reasonable minds could the Finally, weight credibility concluding that the not differ alleged Aiken’s confessions were not affected earlier ”10 procedural safeguards (Italics mine.) denial of his I can- appellate constituting not conceive of an court itself a fact- finding competent weight tribunal, to assess the and credi- bility jury would, could, trial afford relevant evidence. present proof jury
Furthermore, the failure to request charged the fact of Aiken’s for counsel cannot be to appellant. simply The evidence to available him. It could have if, been made at the time available attorneys originally requested opportunity Aiken’s tape recording (exhibit 11) audition the under favorable request granted. conditions, their had been dispute majority’s I do not conclusion actions trial court did not constitute an abuse of discretion. recognize But while we need not assess fault, we must adequate opportunity tape fact that to audition this was not counsel, and, afforded Aiken’s therefore, failure in this regard appellant right cannot warrant a denial of Aiken’s present jury. this vital fact to the
Appellant Wheat my I shall discuss reasons for several belief appellant through conviction of Wheat was viola- obtained rights, he, too, tion of his constitutional hence that granted must be new trial.
Again, the central issue is whether there a volun- tary, knowing, intelligent by appellant waiver of his constitutionally guaranteed right assistance of coun- sel. majority gives opinion
Since scant attention surrounding interroga- appellant factors relevant Wheat’s regarding singularly damning tion confession slaying Harp, adequate a more of James statement of the here. facts is necessitated euphemism appellant counsel, 10This refers Aiken’s char *51 by Supreme “too the United States Court as and
acterized fundamental indulge in nice calculations absolute to allow courts as to the amount arising prejudice (Italics mine.) its denial.” Glasser v. United from of States, 60, 76, Sup. (1942). 315 U.S. L. Ed. Ct. 457 Sunday, April p.m.,11appellant On Wheat 1965, at brought Judge Hoar, Justice Seattle District before charged Court, he had where he was advised that been degree. transcript A of with the in the first crime murder proceedings that the com- is in record. It shows attorney, plaint, signed prosecuting read to alleged open inWheat It that: court. County He, the Wheat, said Antonio Nathaniel
King, Washington, day State of on or about the 24th April, willfully, unlawfully 1965, while there, then and feloniously engaged committing, attempting and withdrawing commit or in sion of a from the scene of the commis- felony, Robbery, willfully, unlawfully to-wit: feloniously body and did at, shoot toward and into the Harp, being, deadly one James a human a certain weapon, wounding pistol, thereby mortally to-wit: .22 caliber Harp,
the said James from which said mortal Harp wounds the said James then died; and there The court then “advised” the accused Wheat: right preliminary [Y]ou a have examination and to right attorney waive such examination. have a an You preliminary you or counsel examination and are you right also informed statement, have to make a charge against you, you oath, not under as to are required to make such statement and that you may you. made statement used . . . you your right appear And also are informed charge person you or counsel and that defend opportunity to a are entitled reasonable time and to con- attorney you or counsel, sult with are entitled by jury. (Italics mine.) of a trial Appellant then asked if he Wheat was wished to enter a prior time, 11Appellant had, to that and as the Wheat result given interrogations, three successive statements. first was several April 24, 1965, of his activities con an innocuous statement robbery Harp reference to the In tained no homicide. the second and implicated robbery however, blaming third, himself while shooting on Aiken. *52 370 charge. significant reply “As is a this
plea His was: mine.) (Italics charge, guilty.”12 plead I murder King County of chief of detectives the Nault, Detective appel- regarding of the detention Office, testified Sheriff’s April p.m. 24. also on He testified 3:30 lant since Wheat Deputy tele- Prosecutor Kinzel had contacted that he April p.m. phone Kinzel testified 2 on 25th. Mr. at about telephone from call Detective he had received the that immediately p.m. at- 2 and had thereafter Nault at about by telephone. tempted Mr. Carroll contact Prosecutor telephone from he call had received Carroll testified Bainbridge Is- summer home Mr. Kinzel while at his arrange- make had advised Mr. Kinzel to land, and that he committing brought have defendant before ments to magistrate quickly possible. as Carroll stated he Mr. Bainbridge arriving Island, in next from took the boat arrange- p.m., 4 he made and thereafter at about Seattle secretary type up complaint and have his ments to Judge called Hoar at his home asked He then warrant. had He stated that also him to come to his courtroom. reporter, Sator, a court to contact Louise asked Mr. Kinzel might proceedings. in she record the order that (which minutes) hearing lasted was termi- The brief prosecu- deputy p.m. statement 7:15 with a nated at the court: tor and nothing your honor, is further, I and this matter have morning ap- possible to 9:30 tomorrow continued for (Italics mine.)
pointment Yes. counsel? Court: of appellant rights attempt protect was, Wheat’s But this interrogating subsequent officers, of actions an elaborate charade and frustrated made little more than appointed prosecutor’s attempt counsel to have stage accusatory proceedings. early at an Wheat p.m., Police two detectives Seattle At about interrogation appellant Department began in Wheat simple, eloquent conclude, face 12It difficult by confessing appellant that, expression, Wheat understood guilt Harp robbery, implication also had confessed my regarding appellant Aiken in See discussion footnote 3. homicide. culminated in the office, interrogation the sheriff’s which the robberies Wolf statements implicating actual killing Fair. Wheat blamed the Again, appellant the victims on Aiken. appellant
Then, a.m., 1:15 Wheat was between appellant room, taken to the “interview” where appellant to confirm his being interrogated, and was asked there homicide, statement which had been regarding Wolf shown Aiken earlier When appellant interrogation.13 statement, Wheat confirmed the said that he did not *53 it, him wish to Aiken told it a “damn change appellant and, lie,” exhausted his to evade the de- having attempts of officers, mands the his interrogating first statement gave in the of police, orally, Wheat. state- presence ment of accused Wheat killing Wolf.14 room, Wheat was then
Appellant taken another where Detectives Mullen and Sergeant Church and Crider com- menced an of 2:45 interrogation (lasting a.m.) Wheat until the the crime regarding Harp with which slaying, Wheat had been charged at the in proceedings justice court only 13Interestingly by enough, majority while is stated the both opinion and the trial that court it was the “confrontation” with Wheat confess, that “caused” Aiken no mention made the is of fact that by confrontation, Wheat was also in the involved and was accused having triggerman. been the The confrontation cannot con ceivably request appellant be held have been at the "Wheat. very given significant by weight This factor was the United States Supreme Illinois, supra, stating, Court in Escobedo v. the court in there “Although testimony 5, footnote that: there is in the record petitioner lawyer previously petitioner and his had discussed what interrogation, they should do in the event of there no evidence that petitioner should, could, discussed what do the face of a false accusation that he had fired the fatal bullets.” strange majority compel- It seems can find this situation so ling yet one, induce a confession be so innocuous case of other. majority opinion again engage illogi court and 14The trial here analysis gave appellant “correcting” cal and conclude that "Wheat only laboring ‘putting statement “after with conscience finger’ on Aiken as the one shots,” who had fired the a conclusion wholly place applied me is, which seems to out of when to one who pictured throughout, as a callous killer! 372 interrogation confes- in a This resulted hours
few
before.
by appellant
time, he
first
which,
for the
sion
Wheat
Aiken,
shots.
he, and
had fired the fatal
admitted that
any
recognizes
approves
majority
the rule that
following
interrogation
the commence-
secret
of an accused
pres-
proceedings against him,
ment
formal
without the
guarantees of
ence of
federal due
counsel, contravenes the
process,
(1963);
P.2d
Moore,
165,
State v.
61 Wn.2d
377
456
(1961)
People
;
Waterman,
561,
9 N.Y.2d
I, course, that the to counsel knowingly intelligently. accused, if done waived alchemy, majority opinion But, obscure at- some warnings tempts privilege to transform the of counsel self-incrimination the assistance rights by accused, into a of those waiver and holds regarding interrogation appellant crime just formally charged, proper had which he been *54 notwithstanding the rule referred to above. agree
I with either the rationale or the result of cannot holding. this Squier, 58,
First,
court, in In re Wilken v.
50 Wn.2d
this
(1957),
given
forth the advice that must be
373
(3)
public expense
ask
the
desires;
he so
whether
if
mine.)
(Italics
of
the
counsel.
desires
aid
defendant
imposed duty on
the statute
a
This court concluded that
right
fully
regarding this
the court to
inform the defendant
court-appointed
or
without this
counsel, and,
information
prior knowledge
right,
waive
could not
defendant
right
competently.”
“intelligently
also, In re
See,
(1957);
State,
92,
Friedbauer v.
51
Therefore, the conclusion sufficiently privilege against Wheat had been warned his right self-incrimination and his counsel, assistance of wholly support is unwarranted and devoid in the record required before us. The court, advice once formal proceedings have been commenced him, includes right expense the advice of the to counsel at state if the lawyer. accused is without funds with which to hire a This given appellant advice was never officers existing appellant the court. Under law at the time required give tried, Wheat was were not officers existing advice, but, under law, state such advice was given required appellant by the court.15 The advice Supreme Court, Arizona, supra, 15The United States in Miranda v. responsibility interrogating placed police on the has officers to suspect court-appointed counsel, stating, p. advise 473, fully interrogated apprise person that: “In order of the extent *55 rights system necessary then, of his under this it is to warn him not only right attorney, the that he has to consult an with but also that if given, appellant having Wheat without the was been not intelligent” “knowing knowledge prerequisite a to right officers, the the in counsel at time of the to waiver in-custody inquisition, questioned post-midnight their just regarding which he had been the crime with charged. having resulting been utilized to obtain confession
appellant and sentence of conviction murder Wheat’s given trial, this be a new absent forbidden death, he must I and remand. confession. would reverse
Summary appeals questions presented these involve The critical application of and sixth amendments to the fifth the the in the record before to the facts United Constitution States disposition is them, therefore, court bound us. In our given interpretations these amendments Supreme Court. United States increasing years, an concern have witnessed
In recent we part individual, reflected in of that court a on the applied have more and more of series of decisions which Rights protection of the Bill to the states. so-called Supreme United Court 19, 1961, June States held On lawyer indigent appointed represent to him. he will be Without right warning, to the admonition consult this additional only meaning he can often be understood consult counsel would lawyer if he one or has funds to obtain with a has one. right warning to if not couched of a counsel would hollow terms convey indigent—the person subjected most often that would right interrogation—the knowledge he too has a have counsel right warnings present. of the remain silent As with only by general right express explanation counsel, effective truly indigent can there be assurance the position of this in a omitted.) (Footnotes to exercise it.” language expression bears a remarkable resemblance to the This Squier, supra In re Wilken v. this court at which “Merely asking pointed out that defendant whether he wants a convey lawyer lawyer information that he is entitled to a does public indigent person expense Thus, indigent if he is an .... may impression that, be made under mistaken waiver defendant’s since pay lawyer, legal represen- he cannot cannot have afford mine.) (Italics tation.
375 right privacy enforce- of the Amendment’s Fourth Mapp through v. the Fourteenth. able states Sup. 1684, 84 643, 81 Ct. 1081, 367 6 L. Ed. 2d Ohio, U.S. 933. A.L.R.2d right 1963, March court held that 18,
On
applica
guaranteed by
Amendment was
counsel
the Sixth
through
Amendment. Gid
ble
the Fourteenth
states
Sup.
Wainwright,
335,
799,
eon
9
83
Ct.
v.
372 U.S.
L. Ed. 2d
right
period
subsequently
applied
792. That
been
to the
has
following
proceed
formal
of
commencement
criminal
ings,
supra;
Ohio,
v.
States,
Massiah v. United
McLeod
supra,
“accusatory” stage,
supra,
Illinois,
Escobedo v.
“line-up,”
Wade,
and to the
United States v.
On June Court held Fifth exemption compulsory Amendment’s from self-incrimina protected by tion was also the Fourteenth Amendment against abridgment by Malloy Hogan, the states. v. 378 U.S. Sup. (1964). 1, 12L. 2d 84 653, Ed. Ct. 1489 April 5, 1965, On the Sixth Amendment of con applied Supreme frontation was Court to the states through the Fourteenth Amendment. Pointer Texas, v. 380 (1965). Sup. 400, 13 U.S. L. 2d 85 Ed. Ct. 1065 rights, required These so deemed fundamental as to be process, amplified by subsequent due have been deci- Supreme sions of the United States Court referred to binding herein. The decisions referred to are court,16 my opinion, compel granting and, in of a in new trial these cases before us. place September of these trial cases at bar took prior October, 1965, to the date Arizona, of Miranda v.
supra. provides 16Canon 3 Canons Judicial Ethics that: “It is the duty judges support of all United States the federal Constitu they administer; they
tion and doing, state whose laws in so fearlessly apply guar should observe and fundamental limitations and antees. 376 directly requirements therefore, which, are [T]he (1966), Jersey,
applicable, 384 719 U.S. v. New Johnson v. although voluntariness, Davis on the issue relevant (1966). Texas, v. Clewis Carolina, North U.S. (1967). Sup. Ct. 1338 707, 18L. Ed.2d U.S. supra, Illinois, principles Escobedo enunciated directly applicable. however, are foregoing state- decisions, the oral and written Under the by appel- appellant Aiken, the final statement ments of Harp relating homicide, all which lant police response impermissible given custodial appellants interrogations, against these *57 inadmissible obtaining re- convictions Their these at their trial. use respective quires convictions and sentences reversal of the granting of death, of a new trial. and the given appellant of after the The statement Wheat was right controlling cases time to counsel arose under the his supra, States, United Illinois, of Escobedo v. and Massiah v. supra, arraignment following Harp homicide, his guilt securing purpose a admission of of further with regarding appellant This from that same homicide. Wheat began nearly interrogation 1:15 a.m. lasted until about although it to fur- a.m., 3 was known Wheat was morning, counsel at 9:30 and the statements nished (which successful) attempt proved to in an were obtained gain inculpatory his con- admissions assure sufficient imposition of sentence he viction and the the death before of counsel. The officers won the could receive the advice and, race the clock counsel time his appointed, principal purpose having counsel had been frustrated. Supreme Escobedo, United States Court noted
As the supra 487: at Wainwright,
In Gideon U.S. we held that every person crime, accused a whether state fed- lawyer sought by eral, is to a at trial. rule entitled however, here, make the more would trial no State interrogation; appeal “right from the than very [would be] at the formal use counsel trial hollow purposes, thing practical all [if], for the conviction is Groban, In re already pretrial examination.” assured imag- dissenting). (Black, “One can J., 330, 344 U.S. cynical saying: the most prosecutor have ‘Let them ine a They escape noose. can’t counsel, illustrious now. nothing at the them can do for There that counsel ” parte Supp. 514,517-518. Sullivan, F. trial.’ Ex interroga- Although appellant his advised Wheat was consult an tors in he had a each instance that attorney,17 counsel. to demand the assistance failed appellant lacked But, circumstances, under the since “knowing intelligent” knowledge essential right, request mere failure to waiver his to hold that his would, assistance counsel constituted waiver truth, make him of his con- the “deluded instrument own jury’s imposition penalty. viction,” and of the of the death Appellant Washington, Blaine, near was arrested Sunday interrogation, about 4 o’clock on a afternoon. His throughout early after his return Seattle, continued Monday morning. hours intent were the officers in So securing regarding his admissions three homicides (with ultimately charged) which he before could procure they permit counsel, that did him to be taken magistrate Monday morning (long before a until 11:30 opened). They just long after that had court detained him enough get signature unwittingly on the last of his *58 incriminating appointed statements before counsel could be for him. interrogation apparent
Aiken’s intense, as is from tape recording interrogation. Though the of his first it is revealing, disclosing only several statements I which can appellants 17It is also noted each of the of statements these they of, contained a declaration that had been advised and understood rights, voluntary. Supreme their and that the statements the were But Court, Arizona, supra 492, in Miranda v. has noted “The that: mere signed typed-in fact that he a statement a which contained clause stating knowledge’ ‘legal rights’ he had ‘full of his does not approach knowing intelligent required relinquish the waiver rights. Haynes Washington, 503, constitutional v. Cf. 373 U.S. 512-513 Haley (1963); Ohio, 596, (1948) (opinion v. 332 U.S. of Mr. Justice Douglas) .” type- threatening every word, of in sense consider interrogation transcript portions fails to of of written ques- convey atmosphere Aiken’s coercive in which dissenting opinion. appendix tioning place. took to this See interroga- part important of his all, of the vital But most place expressly his desire tion took after he had stated by requests his unheeded counsel, consult went interrogators. argument the state No advanced important majority opinion factor. The can overcome this interrogation thereafter, its coerciveness of the with heightened by importunities fact that threats, alone alone have to remain knew was and would predicament. him. in his No assistance would be allowed “cooperated.” there be no surcease until he And would applica- the above-cited This tactic has been forbidden Supreme The Court. ble decisions the United States unconstitutionally resulting confessions obtained unconstitutionally appellant. in evidence admitted reaching jury and, verdict, in their in considered them they may statements, of the nature of the have been view jury. imposition penalty by in crucial the death Aiken’s conviction cannot stand such a basis. Supreme Haynes Washington, v. noted, Court (1963): Sup. 503, 518, 10
U.S. L. Ed. 2d Ct. 1336 Rogers 541: Richmond, As we said 365 U.S. many “Indeed, cases in command of which the compelled us to reverse the Due Process Clause has involving state convictions use confessions ob- by impermissible independent methods, corrob- tained orating left of the truth of what evidence little doubt Despite verification, had such the defendant confessed. product confessions were found to be the constitu- tionally impermissible methods in their inducement.” suggest express course, we neither nor view Of petitioner regard guilt or innocence of to the ultimate jury decide on a new trial that is here; free of (Italics mine.) infirmity, constitutional .... reasoning apply I in the cases before us. The same should and remand each them to reverse the convictions would *59 superior in trial, to conducted court for a new be set forth manner consistent with the requirements United Court. Supreme States Pro JJ., Tern., J. Barnett,
Weaver and and Hamilton, concur J. Donworth, with
Appendix Opinion Dissenting To following transcript tape-recorded portion of the is interrogation reporter prepared of defendant Aiken the court judge. tape the direction of the unintelli- trial Portions that were gible reporter recording tape to the are indicated This asterisks. was played only presence appellants once in the courtroom in the and original hearing. played their counsel at the 101.20W It in the presence jury of the due to the fact that neither the court nor counsel repeated requests that Exhibit aware contained Aiken’s for the interrogating assistance of counsel. Cross-examination of the officers regarding portions interrogation certain is included in footnotes. Transcription Tape Interrogation Purporting #1, Of Police to Recording Department of Interview Seattle Between Police Detectives and Arthur Defendant Nathaniel Aiken. were out whole Nobody most jumped got box, volved. he us about himself. got will by lying. You can rest assured know what came back from the rest presently got is lie. We have down the own Q. great * * * is Now do Voice: Now we have You asked the attendant A. We have another That’s Tell out lay thing you mind if trying cooperative. detail. $20 bill. thing * * He of the car. You else. me, back key. He it out it. said that line. we will right. in the of the car. You took maintains you That ** * * he If first Nobody you * shoot it back to Now, you for your Q. said. We have it no think that He place, is statements, want The other went King County you The other You asked him for explain you, want * * * up reason do hands. suspect else. car, told putting would take you what into the tell went and to tell you. you give you room, we are this to want you night were * * * suspect Tape he walked over in confessions, lie. We would defeat time, you. you were us a us about custody. Jail, just all in change you to tell rest we finger 1No. you still got in the on the we statement, all. one of the has defined in exactly are not. A. took the room. He That black and white. He it. When in detail. You make had some guessing? us location, it, for a The other custody. about half from Antonio about way rest fine. It is gas you. is one what we do $20 parties or if room station. A. guy. it? He is came back and he We witnesses. Now we He has thing bill. * * * our suspect great opened up * you A. asleep, key. got gas who were trying [*] Wheat. He is own Me? Q. A. I we don’t want it station, you. detail how know, When * gone has been him, all, the cash puts up * * * purpose haven’t Q. Q. to tell your help Yes. You into you you and We in- do, *60 guessing any Now, any more, playing we are not are not we games. help up you. yourself, You want to to fine. It is only way you yourself by cooperating.[18] help A. I is can * * * you myself help don’t do Q. know what What would examination, 18On as follows: cross Detective Chase testified Referring asking question? page 2, A. I to is that “Q. line who posi- question, believe I can’t be that Detective Mullen asked the but way you only referring reads, can tive. Q. And the line I am to ‘The help yourself by you people cooperating.’ mean is did Q. A. Yes. What by exactly giving ‘cooperate’, Well, who I don’t recall a statement? A. you question, Well, my question is, did asked the now what Q. Counsel. people by ‘cooperating’? Well, have mean I this I would A. had said we assumed that that what the defendant would have been aware get by cooperation meant he like to the fact that would investigation you said, completely up. when it And when Q. cleaned way cooperat- only help was told him could himself is that he you regarding things; ing, give isn’t wanted him to a statement these implication Well, that correct? A. we wanted to know what you yes. crimes, tell involvement him to Q. was in the You wanted you about it? A. Yes. them? A. Yes. And Mr. Aiken did tell about Q. you suggest managed help Q. Can to himself us now how he doing managed help himself. that? A. I don’t know how he has Well, helped all, Q. he hasn’t he?” himself at has examination, On cross Detective Mullen testified: you just page 2 of the tran- “Q. Would the moment turn to for Yes, script? Calling your to line 30. A. Q. A. 2? Line 30. attention your you tape that Did voice Q. Counsel. detect on the that that was way yourself by cooperating’? said, only you help A. I do ‘The can is Well, you statement, con- not believe that I made will Q. Counsel. somebody tape, cede on the that it? A. If it is here and it is made they somebody yes. you it, Counsel, had to make Do know what Q. you ‘cooperating’? No, not, Well, meant I if said A. do Counsel. Q. you you it did Kinzel: will mean that make a statement? Mr. We object say Court: to that. He said that he the statement. The didn’t Well, may answer, Counsel, answer if he A. I cannot understands. Egger) (By because I don’t I that Mr. Q. believe made statement. you telling you Mullen, it Detective are do not know what us say ‘cooperate’? Yes, You what it Q. means A. Counsel. do know depends upon A. it what means? Yes. What does mean? A. It all your you interpretation mean, Well, want it to are Q. would Counsel. interrogating somebody you about, believe, I one count of murder you you saying, now, cooperate,’. it mean to are ‘You What does when entirely say ‘you cooperate’? truthful, A. You would like them to be right. Q. Q. truthful. Tell the truth? A. That Give a statement? right. Now, cooperate, Q. A. That is correct. All he did didn’t he? May clarify this, Yes, go Counsel, please, A. I at this The Court: time? you way particular point At this ahead answer it wish. A. investigation, particular point was; our we did think at this investigation, knowledge, in our the best our what information we A. you right kind did we have been longer. been fair. You Please don’t. Q. A. the Wheat man about to see what nothing ligence. that us a statement You Q. You Q. You don’t know what drive, Q. It takes a I will honest with something up Q. What do faculties? A. I believe you? it all A. That’s that’s robbery, you self. mean, whether doctor’s care at * * chest, sell either one of churned own answers chest. A. you lie to *61 * * * * mother, Now, You are Stolen. Q. When? A. .22 what? What did it truth. * answers we have * * * did. You are better Q. besides A. I don’t out .25 automatic. Answer whether * drive. tell exactly you is not * We are not Yes, [*] you are to exactly you now, we didn’t please, us. * * * Q. now. Don’t make the mistake of Q. Was the handle right. * * * you something: A. it. He’s admitted it. He’s father; don’t know what would * * already. get sitting you. are If Don’t your You you mean, the you Don’t when Q. What color was it? What color pretty big gaining anything by you right have before? A. I here at once. All the answers we have pretty a little what as to you stop you it * think so. lying what going Q. .25? A. don’t Don’t We will never just got do. you off answer will make that mistake. you’ve realize sell us short on * in the driver’s remember just sitting just go and take that you exactly I remember At present fair with you I got. Any questions to us. your short. they were, you tight, * to feel much better when now, you asked man to admit want so. * * * only “not at tell us * * * AllQ. said. done here it or happened? got * * * because look like? What did the if chest. Q. under-estimate what up time? A. No. Q. station. How do you you chipped? to take a you. Now, reason we ask you this sisters that All be, saying you not. You’ve under-estimating A. there Don’t had a .22. right. lie to going your present”? what he’s that try keeping You into think that A. down the line. You want Q. if in this seat right. I don’t know what this now: we are implicated * * * help yourself? Q. That’s question. you place and have What something. and brothers. think about * * * consideration. Don’t better activities were * * * What ride, why you you you right no ... we ask You are not Q. had another DoQ. way all. A. I’m not our got us short. We are continuing at telling kind A. don’t know insult our you your guts happened get now. Q. * * * himself it you right. any time, A. a ability * * * will be determined you picked up I am sleeping I don’t know yours. you get you you, * * * Are A family, you’ve got inside for awhile these all of a Not being absolutely it. us. He’s If pretty big got already. know at all. Just gun the I A. Just Let me have all Exactly we know the going you can ride. But you by admitting or our intel- to lie. gun gun to the A. intelligence. questions A. are a little stupid, handle? A. it off in the car. look like? and that’s happened. the truth. and don’t take anything. trying We Q. What under want off present. * * * being * * * * * * * * * do besides to armed laying Now, point what gun? have man. your your your stop my- give you All are for to is a had, implicated Harp homicide, Mr. Aiken was in the this what is —and this is what it was in reference to. We had reason to believe that implicated Harp Certainly he was in the homicide. thereafter found we particular phase telling out truth, this he was us the and Wheat certainly he, alone, Harp thereafter revealed that and he committed the homicide, particular point and at we were not of aware this. you Well, help by cooperat- Q. do know how Mr. Aiken could himself ing? mind, A. Peace of Counsel.” going half-truths, please. into No You are to have consideration. to to get your going question off There is about it chest. no it. You are get your have to all chest. it off O.K. got got got have We have We Wheat. have statements. We you your everything Now, up mind we need. make own whether you cooperative you uncooperative. to want be or want be you. thing cooperation help help is It does doesn’t your us. We’re giving you doubt, cooperation.[19]” of the far as as A. A. benefit * * * * * * you going Q. told that we know what on. We * * * surprised. A. You Q. Q. what? were not This right surpris You were there. You were there. It shouldn’t be ing you strange surprising. It It should be at all. shouldn’t your very exactly very, place. happened; mind, what what took vivid * * * you other Three of went One statement. * * * you. you. together; Q. three of Who? The three A. gas him You were there. You were with in the station. know. You * * * you talking Brown, No, we He are too. have thinks about got Brown at 1:30. You want facts. A. this all ironed out. was home * * * right. right. Q. All You and Antonio and the victim All together. went he first went into the restroom Antonio first. When pulled gas in and told in to rest room. He station. To the went key room; into the the wanted the to the rest went attendant couple people; restroom; back; went came talked a back they they again. in, car, left left car. Two kids came a but When in you got you you got gas station, car, out went in the both you office, car, in the went Antonio stood outside out * * * you out
front. the attendant. The three walked * * * change you bill. for $20 asked attendant said, opened it all.” take the cash You “I will The attendant box. * * * got you money, you room. You rest After three of * * * gave key the attendant to the rest room attendant going you you said, into the three went “What are do?” The * * * guessing? you Q. Do are A. rest room. do think we Now you you are, “ballistics” know what know what ballistics Art? Do they comparison shell that’s on a This run a test means? been—or they positively is when gun you later on I were to shoot that’s been fired. If * ’1: * * * * they gun pick up could were to blood guns identify gun. coming fire the No two from that examination, 19On Cross Chase testified: Detective *62 doing through you page was 5, 31. Who refer to lines 18 “Q. Would doing talking Mullen I A. Line Detective believe there? everything talking. Referring got we have down to line 26: ‘We Q. you your you Now, up to want be mind whether need. make own coopera- you thing cooperative uncooperative. The that to want talking again you help you.’ cooperation Now, about is are tion does story giving statement, in his him a isn’t it? A. were interested is We help him, yes. cooperation happened, HeQ. told would as to what thing cooperation ‘The that does correct? A. was made statement you? you. help help cooperated And he with Q. It doesn’t us.’ is managed you suggest again, us could how he to Q. A. Once Yes. by you any cooperating? help Q. A. know. Did have himself I don’t by Maybe help cooperating? he could himself A. at that time how idea you peace mind, that Do there Q. own all. believe that is for his is going promise cooperate implied in if he does it is that statement anything meant to be to him? A. There wasn’t a be of some assistance implied promise promise, no in that statement.” They fingerprint—no the same. can same. It is like a two are positively identify understand that? weapon projectile came from. You which right. All You want to tell us about it? We are telling. got much, fishing, A. not we are have much more. We * * * gun Q. gun. No, no, is not isn’t the It all. no. This * * * you. automatic, Not silver the one that took off .22 we * * * you Spain. going in to feel when tell made You are better * * * * * * * * * Q. it, us Q. You can’t? A. about A. * * * Q. Either A. one. You want to read the statements? * * * * * * Q. yourself. you A. You can read them Have you exactly happened. read I want them? tell us what All * * * * * * right? Q. your A. farAs case concerned. is particular I don’t feel should be shown that statement. you right. talking Now, particular All when we are about this thing, talking talking job, we are not about one we are that about many. you jobs, I will show on one statement of those not the one we talking you any about, lying are to show we are not about this. exactly them, We know what went on in all of and we know what on, got physical up. went because we have evidence to back it implicated is And this corroborated Wheat’s statements. You are every single job. got Don’t We under-estimate us. have other proof but from at least four. weapon your gun. person, of the fact that is Not from one Now, talking job, is from one not the one we are about. You it, you. you can’t read it or understand I will read it to Can it make * * * right? Q. right. out all A. All Yes. Want to sit down? A. * * * Q. lie.[20] You tell us the truth then if this is a A. >Q. physical guy lying. This matches all is evidence. not lying. Q. got physical A. He is A. He is have We evidence at the scene. lying. Q. A. lying lying is he What about. Tell us what he is * * * about.[21] Q. lying lying. What is he about? A. He is Q. lying place. Where? Show us where he is here. One One place A. lying. place. lying. place that he is Just one one that he is Just * * * Q. cooperate you charged us, You don’t with will be every single anything on count. This isn’t a threat or like this. It’s * * * * * * promise.[22] you are not We we are mad at foregoing opinion, ant Aiken is for counsel can be heard on the [20] 21 The reporter’s transcript unintelligible it is at these at these tape. points indicates that points. However, that defendant Aiken’s response as stated in the of defend requests examination,
22Oncross Detective Chase testified: “Q. right. referring Now, asking particular All line who is that question? Q. question is, A. Detective Mullen. And the ‘You don’t cooperate you us, charged every single with will be on count. This isn’t anything you promise.’ a threat or like this. It is a Don’t consider that object a threat of a Mr. kind? Kinzel: I will The Court: He that. may answer. A. I wouldn’t consider it a threat due situation. question. Q. There was no threat meant No threat meant saying you cooperate you us, charged every ‘If don’t will be on single Q. Chase, implied promise count.’? A. I No. see. Mr. what cooperate? any Q. promise. there if he does IA. don’t see Isn’t it implied cooperate charged every single if he does he won’t be way. Q. count? IA. don’t understand it that You didn’t intend for Mr. way Aiken to understand either? I A. didn’t tell Mr. Aiken Q. you fact, what it was. As a matter of or Mr. Mullen
him,
lying
* * *
know
these are
the
show
don’t
Maybe you
You
you
* * * Q.
A.
the scene.
five foot three
you
Q.
cally
all we are concerned about
six
* * *
You think this
feet
witnesses
* * *
our
know
had
about
we
know
we
Arthur where he is mistaken?
this.
tall. A.
hand.
in the head. A.
along
want
very
can
It identifies
how tall
Everything right
Now,
anything
gun
place
tell how tall
This is a
inches.
serious
Q.
statements,
with these
* * *
just along
is
you
It can’t be. It matches
you
know it.
you
counterfeit,
about
photographs
haven’t
Do
with him
charges,
time.
are?
Q.
**
* * *
you
that
You didn’t do it? A. didn’t
statements,
is the truth
it. A. Here’s
now is
and Wheat
It
We
had a chance
have
* * *
*
you
couldn’t have been him.
homicide
this statement?
subject
[*]
know how
you
and
I didn’t do it.
didn’t
[*]
*
any
pointing
He
can’t beat
everything,
but
statements
idea
did
says it
everything;
was
*63
* * *
Arthur Aiken. Would
the whole
kill
we
tall
it
murder.
how
him,
give your
I
It
* * *
certainly
it. A. Counterfeit
is counterfeit.
you
Q.
killing.
is no
step
we are
easily,
if
It is
everything
thing.
are. You
on
If Wheat
do it.
by step.
counterfeit.
that
He is over
side
your
that
We
you,
scientifi
want
showing
Wheat
Q.
killed
effect
of it.
don’t
gun.
shot
and
you
All
are
He
Do
at
is
charged on,
position
say
if
at all
what
count he would be
Q.
cooperate
cooperation?
No,
matter
or
that— The
no
A.
not at
charging
Prosecuting Attorney,
entirely up
A. That’s
is
isn’t it?
to the
Q.
question
Why
not
Aiken would
or
Mr.
correct.
whether
by you
charged brought
people
up
then?
or would not
to him
be
particular
why
Well,
asked him that
A.
I
know
Detective Mullen
don’t
question. I
ask it.”
didn’t
Mullen,
examination,
cross
testified:
Detective
on
say,
“Q.
Now,
here
.
.
it true
the words that show
.
isn’t
that
single
charged
every
us, you
cooperate
on
‘You
not
be
do
with
will
Yes,
anything
promise’? A.
this. It’s a
count. This isn’t a threat
like
Q.
you say
tape
sounds
it
Counsel.
that? A. I listened
Did
Q.
you
my
say this,
meant
voice,
I
Did
like
I
did
Counsel.
believe
yes. Q.
it?
You
mean
that? A. It
statement
that
made
did
was a
single
charged
every
I
on
A.
believed that
defendant would
say
Q.
‘if’,
yes.
cooperate
you?
I
count,
A. I did not
didn’t
with
If he
Q.
here,
believe,
is
Isn’t it
what
said
do not
true that before
Counsel.
tape
you
tape
ago,
transcript,
this
on this
a while
shows
as
heard the
you
cooperate
clearly
you said,
you what,
if
‘Tell
don’t
indicated that
charged
every single
us, you
is what
on
count.’? A. If this
will be
that,
tape, Counsel,
I said.
if
then
is what
is on the
I said
Q.
you
you
you
assumed
what
said? A. I
And
now concede
meant
charged
every single
as a
count. It
made
that he
was not
would be
way
cooperate
put
Well,
if
he didn’t
threat. A.
it was
such a
you
you
would,
wouldn’t,
Kinzel.
I
isn’t that
true? Mr.
and if he did
Repeat
object.
argumentative.
Let him
A.
That
The Court:
answer.
is
Q.
Egger)
question, Counsel, please.
(By
Isn’t it true
Mr.
way
cooperate you
put
would
him was that
if he didn’t
it was
you
No,
charge
counts,
him
if he
A.
with all three
but
did
wouldn’t?
why
statement,
it,
as I
I termed
counsel. This
I made the
believe
it, that it
a threat.”
wasn’t meant as
* * *
* * *
your
charging
with murder
listen to
side
*64
*
* *
you
dis
Q. We
chance
A. Well
a
to tell us.
until
have
*
* * *
* *
two sides to
There are
Q.
A.
pretend
cussed Wheat’s
* * *
your
every story,
A.
read
mind.
can’t
to
Art. We
*
* * *
* *
* *
*
You ask
ask
A.
You
this
Q.
didn’t do
**
* * *
verify
Q. Sure
me
statement
to
*_
*
(cid:127)
*
going to
we are not
review this
whether
lie
either.
asking.
he
statement
if
you
expect
you.
to lie
us
This
too
don’t
is
serious. We
* *
*
*
* *
we are
what
Q.
A. I
This
is
know
you
long
asking you
give
story.
have
true
How
are
a
We
**
* * *
*
*
**
long?
Oh,
Q.
A.
A.
How
known Wheat?
you
Washington,
Q.
come
A.
D.C.
Q.
do
from?
Where
* * *
Bought your automatic,
Sporting
store? A.
Goods
Seattle
*
* *
* * *
is
this
is not
Box it came from
Q.
**
*
larceny
burglary
more
than
this
is
or
or
theft
auto
*
* *
* * *
stop
this
fair decision on
want
make a
we
* * *
* * *
they
the
identification.
any
car. A.
who was
car
ask
you
any
broadcasts,
or read in
news
Have
heard
Q.
*
*
* *
* * *
* *
concerning
newspapers
A.
Q.
A.
* *
* *
*
*
girl
girl
your
you see
Q.
Where? A.
Oh? Did
Q.
* *
*
*
*
* *
* *
you
a
Do
have
A.
Q.
friend
friend in Seattle?
in
* * *
anyone
A.
Hunh?
Don’t know
Q.
A.
girl
A. I met
her.
You
friend?
Q.
Seattle.
know Wheat’s
* *
* *
*
*
* * *
you like
A.
Q.
How do
Seattle?
* * *
big city
Chicago
A.
What? A.
Q.
Q.
Not
is?
* * *
good
pretty
Washington, D.C.?
a
Q. How about
Is that
* * *
they
They
you
here than
do
Q.
town? A.
treat
better
problem?
Chicago,
in
Chicago.
never been in
as far as
race
A. I’ve
**
*
Yeah,
Washington,
in. Yes.
I mean
come
Q.
D.C.
* *
* * *
* * *
*
you
here, Art.
A. Did
Q.
A.
Sit over
* *
* *
* *
*
*
*
say
things?
say
Q.
You
these
Q.
A.
* *
*
*
*
* *
I had
Q.
You know
A.
a dam lie.
it’s
**
* * * (At
tape
point,
but
I didn’t
became
use it
doing.
you
you
completely
unintelligible)
are
know
Q. So
what
* * *
subject
say
brought up
give
dam,
A. I
I don’t
who
talking
you
pull
gun
me, are
Q.
—he did—I will
out.
Excuse
* * *
* * *
talking
this one
about
You are
about
Q.
A.
* * *
guys
back home.
here? A. And the
so went
went down
* * *
him,
Q.
three went
Who went back
A.
all
home?
* *
*
no,
me,
had,
I
I
back. So he told
him
and I told
Tony.
Q.
Q.
Who fired the shots? A. He
Who? A.
What
Q.
did.
Tony
you
A.
ever
name
name?
Wheat.
read the
Q. Did
paper
station
Q.
was the
attendant
at?
later on? A. No. Where
Way
Empire
is on
was the
Q.
All I know
What
A.
somewhere.
* * *
much
Q.
name of the station? A.
money
How
I
it was
believe
*
*
* * *
*
happened
you get
did
A.
What
Q.
* * *
say?
you standing
the man
there? Were
there
What did
*
* *
* *
* * *
you
your hand? A.
Q.
A
hit
the man with
Did
As far as
I
* *
*
*
know,
How
Q.
did? A.
was the man dressed? A.
he
or a
I
Q. Who
didn’t
attention,
paid
fact
other than the
no
* * *
old man
Q.
Was he an
had
a service station uniform.
* * *
boy?
young
age,
A. He
In
how old was he?
Q.
* * *
something.
A.
Q.
I don’t know.
Was he
Looked like
* * *
* * *
you
thought
A.
DoQ.
was a
man with
~ *
*
what he said
A.
remember
Q.
Antonio shot him?
Well
before
you
you
praying,
told
Just before
started
do
remember what
religious
something
being
saying
A. He was
him?
about
* * *
something—Q.
say?
What else did he
A.
Paid no atten
* *
*
Antonio,
you agree
tion
Q.
to him.
Q.
do
with that? A.
I
just wondering
you
change your statement,
now if
want
or if
you
your
you
wanted to stick with
statement.
Is that all
wanted to
* * *
ask him now? A. That’s
Q.
all.
O.K. Sit over- here. To
* * *
give you
give your
Now,
you
a chance to
side
do
want
* * *
* * *
give
Sgt.
here a
Q.
statement
Now. A.
* * *
* * *
* * *
A.
Your
Q.
middle
name?
*
**
your
A.
Q.
Nathaniel.
Last. A. N-a-t-h-a-n
And
last
Q.
* *
*
Aiken,
you?
name? A.
Q.
A-i-k-e-n.
How old are
12, 19,
December
1967. Petitions for
denied.
rehearing
Department
33335.
1967.]
One.
November
[No.
King
Tony
Respondent
Cross-appellant,
Colella,
County, Appellant.*
*65
*Reported in