State v. AllenState v. Allen
- Reporters:
- , ,
- Before:
- Munson
Elizаbeth Allen appeals the disposition adjudicating her guilty of being a minor in consumption of intoxicants. 1 She contends the evidence was insufficient to support conviction and her confession was improperly admitted into evidence.
On the evening of February 2, 1990, Police Sergeant Scott Hamilton saw Ms. Allen and another woman staggering in the roadway. When he approаched them, he saw Ms. Allen was wearing only one shoe and sock, had blood on her, and appeared to be intoxicаted. Sergeant Hamilton attempted to question them, and when the other woman started to respond, Ms. Allen struck her in the facе. He arrested Ms. Allen for assault, advised her of her rights, and asked her if she had been drinking. She told him she had consumed a large quantity of winе. At this point there was some allegation of a sexual assault. He contacted Ms. Allen‘s mother who took her to the hosрital. The Sergeant advised a deputy prosecutor he believed Ms. Allen was too intoxicated to give a competent statement at that time. He also made arrangements to have the mothers of the girls bring them to the police station the next day.
The next day, Officer Ronald Bailey, having been told Ms. Allen was the victim of a possible rape, took her tape-recorded statement. He advised her of her Miranda
2
rights,
Ms. Allen contends a person is not guilty of violating
The issue in
Homaday
was whеther Mr. Homaday had been lawfully arrested under former
A “totahty-of-the-circumstances” approach is used in determining whether a juvenile has voluntarily waived Miranda rights. State v. Jones, 95 Wn.2d 616, 625, 628 P.2d 472 (1981) (citing Fare v. Michael C., 442 U.S. 707, 725, 61 L. Ed. 2d 197, 99 S. Ct. 2560 (1979)). “[A]ny evidence that the accused was threatened, tricked, or сajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege.” Miranda v. Arizona, 384 U.S. 436, 476, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974 (1966).
To prevail on her claim waiver was procured by deception, Ms. Allen must show she was led to believe the sole purpose of the questioning was to determine whether a third person could be charged with rape, and this belief was material to her decision to talk. See United States v. Stern, 858 F.2d 1241, 1249 (7th Cir. 1988) (citing United States v. Serlin, 707 F.2d 953, 956 (7th Cir. 1983)).
Policе need not inform a suspect of the precise charges against him, especially when the nature of potential сharges depends on circumstances unknown to the police.
Armour v. State,
479 N.E.2d 1294, 1298 (Ind. 1985) (citing
Berkemer v. McCarty,
468 U.S. 420, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984)). “The suspect should be informed of the reason for the investigation or the incident which gave rise to the interrogation so that the suspect can make a knowing and intelligent decision whether to forgo the privilege against seb-incrimination.”
Armour,
at 1298;
see State v. Beckman, 354
N.W.2d 432, 437 (Minn. 1984). If the defendant is aware of other offenses upon which questioning is bаsed, and the officers indicate at the outset they want to ask
Here, the purpose of the interview was to obtain information about the alleged rape, and Ms. Allen was affirmatively assured this was the case. She was aware she had been arrested the night before for an assault and mаy well have believed the Miranda warnings related to that offense as well as rape. Nothing in the record suggests Officer Bailey intimatеd to her any other charges were contemplated. Indeed, it appears the prosecutor decided to pursue the minor in consumption charge some time after this interview. Under all these circumstances, it cannot be said Ms. Allen‘s waiver was knowing and voluntary. Use of the statement taken by Officer Bailey was error.
Erroneous admission of a voluntary confession is harmless only “if the untainted evidence alone is so overwhelming that it necessarily leads to a finding of guilt.” State v. Ng, 110 Wn.2d 32, 38, 750 P.2d 632 (1988). The trial court made no writtеn finding as to Ms. Allen‘s statement to Sergeant Hamilton. Thus, the only untainted evidence, his observations on the evening of her arrest, is insufficiеnt to support a conviction.
We reverse and dismiss.
Thompson, A.C.J., and Gavin, J. Pro Tern., concur.
Notes
ROW 66.44.270(2) states: “It is unlawful for any person under the age of twenty-one years to possess, consumе, or otherwise acquire any liquor.”
Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974 (1966).
The officer sent her statement to the office of the prosecuting attorney. The dеputy prosecuting attorney declined to prosecute anyone for rape and further did not charge Ms. Allen with assault. Rаther, he charged her in juvenile court with being a minor in consumption of intoxicants.
Noting the officer did not see the defendant acquire, possess, or consume any liquor, the court stated: “Defendant therefore was not guilty of violating