*1 6, En 39740. Banc. November [No. 1969.] Bobby of Washington, Respondent, State Lee v. Creach, Appellant.* George F. Velikanje, for appellant counsel for (appointed appeal).
Lincoln E. Patrick Shropshire, Olwell, H. and F. James Gavin, for respondent. Defendant, found guilty by jury first
Weaver, J. degree forgery, from appeals his judgment and sentence. 9.44.020, RCW .060.
The alleged forgery was the signature the named payee, James S. Black, as an endorsement on a check stolen
* Reported in
August received Police 9, 1966,the Yakima *2 exhibiting cards that report credit an individual was report, Leav- appeared Officer to this Pursuant be stolen. pointed was Hotel where defendant itt went to the Chinook reported. by manager Officer the out the individual approached for identification asked Leavitt defendant and containing produced num- a billfold documents. Defendant “James for S. and a driver’s license erous credit cards com- he Mr. Black Black.” Defendant stated that was step plied request officer’s outside with waiting although protested questions, that he answer was telephone for a call. Qualley Sergeant told
Outside, Officer met Leavitt difficulty identifying him he defendant. Answers had some concerning height, weight, questions defendant to eyes correspond not birth, date color of and hair did He re- on license. with the information the driver’s was quested accompany police officers station.
Nothing on in the was the ride to the station. While said produced elevator, volun- second wallet and teered identification. that it contained his correct interrogated by De- station,
At the defendant was Sergeant May, de- tective testified that he informed who rights reading following fendant constitutional list to him:
Preliminary Questions Recorded Statements for room____________in is.................., date is...................Thetime Department, Yakima Police Detective Division. Present during this statement: your
Q. is true What name?
Q. address? Your age
Q. and date Your of birth? you you right Q. Do understand that have a to remain silent? you Q. you Do understand that statement that make
may against you be used in court at a later date? you Q. you Do understand that have the constitutional attorney making to have the advice anof before this statement? you you Q. Do understand that do not have funds attorney hire an the court will
you charge you? free of Q. rights? Do waive these Q. Do understand means? word “waive” voluntary your part? Is this statement Begin [Italics ours.] interview. attorney;
Defendant stated that he did not want an but note, we he was not advised had the to have attorney present during interrogation. Defendant admitted that the “Black” billfold stolen, and that he possession was in of the other stolen articles. After further *3 questioning, placed jail. defendant was booked and in
August days police 11, 1966, 2 later, the received notice payable by check, that the endorsement a to and drawn forged. Black, James S. had been Defendant was interro- gated again; by Sergeant this time Detective Rutz, who gave following explanation testified that he defendant rights: of his constitutional gentleman I advised the if that he wanted to retain an attorney phone phone there and was book he could my desk, use on and if he did not have the funds to attorney, up an hire he wound in court, the court attorney him without cost to him. say But did also tell him that would not one more word to him until that arrives? [Italics No, ours.]
A. sir. Sergeant Rutz further testified that defendant told rights was well aware and indicated that he attorney. During interrogation, did not want an defendant using admitted that he cashed the stolen check Mr. Black’s signature and identification.
Pursuant to CrR 101.20W,the trial court determined that fully defendant had been of advised his constitutional
197
officers; that
rights
making any
prior
to the
statement
voluntary;
forgery
and
admitting
his statements
evidence.
in
admissible
that the statements were
assignments
it
first, that
error:
makes two
Defendant
Qualley,
permit
Leavitt,
Officers
error to
was reversible
by
concerning
May
testify
defend-
made
statements
by
approached
Leavitt
Officer
ant between
the time was
May.
interrogated
Sec-
Officer
at the Chinook Hotel and
testimony of
error to admit
ond,
reversible
it was
concerning
May
statements
Rutz
defendant’s
Officers
forged
had not
endorsement;
that he
had
rights.
properly apprised of his constitutional
been
applicability
appeal brings
sharp
focus the
This
into
Arizona,
694,
v.
16 L. Ed. 2d
86 S. Ct.
Miranda
U.S.
(1966),
case.
to the facts
the instant
disagree
that the testi-
We
with defendant’s contention
Qualley,
mony
inadmissi-
Leavitt,
of Officers
was
given
pre-inter-
the Miranda
ble because
had not been
warnings
rogation
step
Chinook
when asked to
outside the
concerning
identity.
questions
Hotel to answer
v.
The same contention
in United
was made
States
(4th
1968).
Gibson,
tion certainly interrogation” includes all sta- “Custodial questioning by po- police-car initiated tion-house compulsion” “potentiality there the is ob- lice, for police inquiries reaches made Whether it also vious. suspect or at his own on the street home was left unan- by has the Court and been much swered . “interrogation” debated. “custody” . refinements of the terms . Precise developed case-by- will have to be on a 198 present
case
whether
Thus,
basis.
our
is to determine
task
atmosphere surrounding
police
the brief
questioning on the
near the car
character-
sidewalk
by
prac-
overbearing”
police
ized
“official
or “overzealous
pointed
preclude
which,
out,
tices”
individual’s
to the
as the Court
could
making
speak
rational decision whether
police
or remain silent.
requiring
This
not
court does
read Miranda as
officers
preface
warning
questioning
with a
all non-coercive
investigation
conducted
the
the course of a
routine
[Footnotes omitted.]
circumstances
this case.
covering
It is difficult to set forth an all-inclusive rule
every possible
investigating
situation,
once
but
officer
probable
person
has
cause to
believe
confronted
expected
has
an offense,
committed
the officer cannot be
permit
suspect
presence.
point,
leave
At that
interrogation
suspect
custodial,
becomes
and the
must be
rights. People
App.
Ceccone,
warned of his
v.
2d
260 Cal.
Rptr.
(1968).
886, 67 Cal.
499
States,
See Mathis v. United
(1968).
391
1, 4,
U.S.
20
381,
L. Ed. 2d
88 S.
Ct.
argument
In a recent decision rendered after oral
in the
applicable
interroga-
instant case, Miranda was deemed
suspect questioned
of a
tion
in his bed in his own room
four
officers at 4 a.m. One of the officers testified that
the defendant “was under arrest and not free to leave when
questioned
early
he was
in his bedroom in
hours of
morning.” Orozco Texas,
324,
v.
394 U.S.
L. Ed. 2d
(1969).
Orozco not does extend the rules of It Miranda. applies specific completely the rule situation, factual different from the instant case. Orozco answers the dissent- ing opinion. questioning of defendant outside the non- hotel was “potentiality compulsion
coercive; it did not have the in-costody interrogations.” inherent in the It was conducted during investigation. the course of a routine interrogation,”
It was anot “custodial which the United Supreme States Court has defined as questioning initiated enforcement law officers after a person custody deprived been has taken into or otherwise
199 way. [Miranda, any significant of supra.] freedom of action his police overbearing overzealous or There nois evidence police car, defend- enter asked to officers. Until he was under he was that to believe no reasonable basis ant had Qualley had de- Sergeant that testified fact, In restraint. been ar- cooperate, have not he would fendant refused to in- more merely until kept under surveillance rested, but that testified officers Both could be obtained. formation they any ride to questions on the of defendant not ask did they the sec- for station, nor ask defendant did voluntarily. produced it wallet; ond assignment error. first We find no merit defendant’s place interrogation, defendant took and trial of Arrest, Miranda subsequent 1966,the effective date 13, to June Jersey, supra. 719, 384 New U.S. Arizona, Johnson v. v. See (1966). therefore, must, 882, Ct. 1772 We 16 L. Ed. 2d 86 S. impact upon of the in- Miranda the facts consider stant case. prior general, requires that, to custodial Miranda (1)
interrogation that accused, of an he must be warned: (2) right silent; remain statement he has the him in does make can be used evidence and will (3) right law; that he has the to consult with court of answering any (4) questions; that he has counsel before interroga present during have his counsel (5) attorney, tion; if he cannot afford an one will prior question appointed him, cost to be him without ing, if he so desires. question always: for decision is
The ultimate
Was
given?
voluntarily
Darst,
State v.
confession
statement
(1965). Miranda, however,
808,
Defendant contends Detective interrogation, given prior warnings first and the prior interrogation Detective Rutz to his second inadequate because neither officer informed him in clear unequivocal lawyer terms that he had a have present during interrogation; or he could not afford appointed any ques- counsel, one would be for him before tioning.
In Miranda the court said at 469-70: surrounding interroga- in-custody
The circumstances operate very quickly can tion to of overbear the will one merely by privilege interrogators. made aware of his right present the Therefore, to have counsel the inter- at rogation indispensable protection is to the the of Fifth privilege system Amendment today. under the we delineate right Our aim is to assure that the individual’s speech choose between silence and remains unfettered throughout warning, interrogation process. the A once-stated by delivered those who will conduct the inter- rogation, among cannot itself suffice end to that those knowledge require rights. who most of their A mere by warning given interrogators the is not alone sufficient accomplish . Thus, that end. . . need coun- protect privilege compre- sel to Amendment Fifth merely prior hends not questioning, to consult with counsel present during any but also have counsel questioning the so [Italics desires. ours.] warnings by given The the officers do not meet the Mi- error, therefore, It randa test. was to admit in evidence defendant’s statements to Officers and Rutz that he forged by had the endorsement. Our conclusion is fortified our Tetzlaff, recent decision State v. 75 Wn.2d (1969), P.2d 638 wherein we said: [T]he of known and identified accused to have present police interrogation at the time of counsel is an indispensable part protective privilege of the of the fifth federal amendment our constitution. judgment is
The sentence reversed case is remanded for new trial. JJ., concur.
Hill, Rosellini, Neill, McGovern, majority (dissenting) expects J. too much of Hale, —The legal gives police craftsmanship officers. It their in this case study, think, as as the bar exhaustive examiners do to prac- regardless of of the standards But bar examinations. legal giving counsel to police required officers tice of say, shows persons evidence, I would arrest, the under duty estab- record police performed The their well. abun- in such advised the defendant lishes that the officers well as constitutional standards, all detail as to meet dant judicial. require them. no more of assessing adequacy legal rendered advice persons ob- arrest, courts are under officers to liged connection between for some discernible look and the constitutions standards fixed the courts Washington. United United States and the State compelled says person no “shall be Constitution States himself.” case to be a U.S. in Const, criminal witness Washing- amend. 5. The Constitution State Const, § says 1, 9. If I could find art. ton much the same.
anywhere com- defendant had been in the record that the *7 gainst pelled himself, or even that his to be a witness product of kind of coer- was otherwise the some confession agree I would that the conviction should be reversed. cion, My nothing compul- record, however, of reveals search the affirmatively sory contrary or on the coercive but shows voluntary speak disposition the defendant to out when damning guilt. confronted evidence and admit his with appears evidence, From to me as abundant trial the only voluntarily court found not that defendant confessed receiving explanation but did so after detailed rights relating privileges to Before self-incrimination. asking questions confession, the that elicited the the (1) right he had re- officers told defendant that to (2) any silent; main statements he made could used be (3) right court; him he had the to the advice of (4) attorney making any looking statement; an before explicitly, course, “if to future added do not have attorney appoint the funds to hire court will charge you.” attorney you free of read advice defendant before he This was made a was not the end He confession, but that it. was advised greater hearing preliminary in even At a held under detail. CrR determine the voluntariness the confes- 101.20W May, sergeant saying Stanley detectives, sion, after he recited to the defendant a list the defendant’s consti- rights, he him if tutional testified that “asked he knew his rights, he constitutional stated that knew most of them.”
The officerthen testified: right Did an at that time? A. advised him order that he advise had have right right silent, had the to remain that he had the attorney, call an that if he did have not funds that right one, the court he had would anything silent, remain be used later these without and that that he told me would
in court, and that he had a to waive rights and that he had the to talk to me attorney, anything benefit of an voluntary that he part. or did tell me would be on his He said he declined all these and he me would tell to know. what wanted May present days
Detective said that later when questioned Describing Detective Rutz the defendant. Officer interrogation, May Rutz’s conduct Detective said: thing A. The first that Detective did Rutz he informed rights, of his constitutional which took very thorough about ten or fifteen minutes. Mr. Rutz was through thing, exactly and thing went whole the same days as I did two before. allWe have same questioning form signing that we use. He was about passing the check at the NBC here in Yakima. Detective testified cross-examination: *8 you Q. Did tell Mr. ever Creach what the word “waive” means? A. He understood. He knew what the I meant. believe word he said he would set aside—he mouthpiece attorney. Q. declined use or He said A. He said he what? knew what that meant to set aside, and that’s when I went into it said, and I “You don’t attorney?” an right.” want to call And said, he “That’s you you Q. any said, He “I’ll tell it.” about Did at time permanent? inform him that this waiver beg was not A. I your pardon? Q. you any Well, did at time tell him that rights really Ms waiving rights waive didn’t Ms go go he could anytime back he wished and that at back and that at yes, attorney. that, rely told A. He was on Ms attorney he could. any call an time he wanted you you tMs state- did read Q. him or Well, did tell Q. of the that. Outside Mm Well, I told Mm? A. ment to Q. that outside him told Yes. You statement? A. things. Q. Mm You told I him several A. told statement? him A. I told several sometMng tMngs him the statement? outside of you Q. tell did else What outside of the statement. reading Well, I Mm? A. the statement than other him tMngs that Mm all the recall, I I told told that —as phone desk, and plus on the there, on that the was are choosing. attorney, anyone of his call an that he could everytMng voluntary. him that was I told told him it was voluntary, voluntary anything and I be- he said was and Q. words, other outside of it. lieve that’s about statement, phone you desk on the told him that the was attorney. telephone And an A. he could call attorneys directory local there, and a list of was And he informed me that he didn’t in the book. was anyone he didn’t Well, in Yakima. know attor- know you you ney, Q. Mm he said. Did tell that’s what getting attorney? No, A. I did not. assist him in taking during interrogations Q. statement or At time again rights? you him A. did inform these rights only prior informed him of to the time—I interrogation later Detective was informed Rutz. Rutz testified:
Officer Creach, A. I referred to Mr. advised Mm about Ms rights. rights you Q. And constitutional did advise Mm A. I Mr. of? advised Creach he did not have to to, talk to me he felt that he did not that he did want not have to talk to me or without advice counsel present, counsel, counsel if he without wanted telephone sitting my telephone desk, on was book He could desk. utilize that. He could call an Q. if he so desired. Did then have a conver- say Q. Yes, him? A. I did. sation with your What did about advising things? Mm of A. Mr. these Creach stated and informed me that he to me was well aware rights. you promise Q. anything anytMng Did Mm constitutional you, get him threaten talk to to talk to with you? sir, A. I did No, not. Did offer to *9 any you place? for him if
work A. deals he told took what you No, sir, I not. And did Mr. did Creach tell specifically beg pardon? Q. I this time? A. at What did Mr. Creach tell at this time? A. Mr. Creach stated to me that he would talk to me.
Officer Rutz he check, then said that showed Creach the par- and Creach told him he had endorsed and cashed that ticular check at the National Bank of Commerce Yakima. proved everyone’s This was check that the state to forgery. satisfaction that it was a concerning given Further, advice the defendant police, May Yakima Officer testified: rights always Well, A. I went down list of that is or always person that I the defendant I has, inform a that he and informed right attorney prior had that he making any anything statement me he made any to me—or that statement he made to me could be used him in court at a later date. I informed him right that he had a Also, to counsel. that if he didn’t have appoint funds the court would for him. I anything informed that he told me be would volun- tary said that that you say and the —Mr. me, Velikanje: Excuse did he anything that? A. I said told him that voluntary part. me told would be his Mr. right. Velikanje: All A. see. And he had a—I believe I repeated right or him silent, stated he had a to remain and I rights also told he had waive all these and that he me could talk to of his own free I will. believe about it. that was again legal
But this was not the end advice as shown present the record. Officer said that he expounding and heard Officer Rutz law constitu- judicial tional and immunities follows: A. Detective Rutz introduced himself first and told anything him that he told us could be used in at court later date. He told him had a to counsel or an attorney, telephone and directed attention to his telephone directory desk, on his and told the defendant get any attorney choosing could and he pointed subject out that if the would be taken to court the court one him at a later date basically one, he could not afford and I believe he— thing him about—he has his him. took told It same people style talking and it took him to these own go through this. minutes to about fifteen admission and confes- had ruled that the After the court again testified, on direct *10 admissible, Officer Rutz sion were examination: have to talk to that he didn’t
A. I Mr. Creach advised not want to discuss this to, care if he did me if he did not attorney, an the If to consult with matter. telephone for his he wanted my directory it available desk and was was attorney, he and use, he could consult and attorney present I the office at while was have an could talking the funds to hire an him, and if he didn’t have attorney come to in the event should this matter and for him with- court, the court would any you anything Q. to him. Did advise him out cost you No, A. time, else right A. recall? not offhand not at this Q. no, sir. Did threaten him at now, time? anything? you promise him No, No, sir. Did A. sir. testimony May how, in described after the his Detective times, he at had been advised in detail several cashing forged first the check and then admitted denied cashing it at bank: the opened vest-type there Well,
A. the billfold with black Black, was numerous credit cards the name James with of Mr. I the name and also had this other billfold with got questioned Mr. he and I also Creach how Creach, by telling me that first started hold of this billfold and he explained type employed Idaho, he was and working employment, and he stated where he was was area and that he and near a resort area resort was person not name or another which he describe parked area, cars near a resort and me this one near some immediately particular car broken into was after this car broken into he received the identifica- was tions of Mr. Black. . . . A. In the course of the inter- rogation, part, being first Mr. Creach denied in the cashing bank and denied it. about fifteen minutes or twenty say guess, now, minutes this is a I’d within after — twenty ques- fifteen or minutes after Detective Rutz produced him he check and tioned affidavit of for- gery, myself Mr. and he Creach told Rutz that he passed using into NBC and he the check went Mr. Washington
Black’s Driver’s license. State testify jury, Creach did not on his behalf own before the ¿to hearing but at the under CrR 101.20W, vol. test RCW admissibility confession, said: see, Let me asked me then Detective he come back in and my was, name and he had billfold. He said, “You don’t have to talk to me.” He can said, “You attorney.” reports said, call an He “We have from—I believe said—“from Idaho that these credit cards were stolen, and also that was wanted Idaho for bur- glary.” Further, said the defendant:
IA. believe it Rutz’s office.And Mr. told me Rutz I didn’t have to talk to call an could attorney, telephone desk, said, was on attorney.” “Well, I don’t think I need an And somewhere along they burglary the line asked me about a that was *11 August, committed I think here on the 7th of and I told anything burglary I them that did not know about in just place I Yakima because in town, arrived and at some they brought you that check said, said, out. He “Did ever see they I this?” And “I don’t know.” And said, “Did you sign signed it?” And I “If said, I the check I would it.” never admit on, in went still direct examination: Q. exactly you Tell me what he said when in his August office on 9th? A. He me I told that didn’t have attorney. you Q.
talk but could call an Did he tell that anything you might say against you that could be in used say you Q. A. court? No. Did he if couldn’t afford to hire get you? No, one for A. would he did not. anything you Q. paper? Did he read from sheet of A. say positively. you Q. I No, couldn’t You mean don’t you Q. No, remember? A. I don’t remember. Can tell me exactly you? what Mr. said Rutz A. He said—he intro- charge forgery “I’m said, duced himself and he in detail,” and he said, “You don’t have to talk to me. You attorney. can said, remain silent.” He “You can call an phone say anything The is on the desk.” Did he that you say might you against would be used in court? A. Yes. right to he knew admitted thus
The defendant used anything could be he said remain silent the court told he was but denied court, in funds. lawyer without if he was for him interrogated by he answered court, However, when follows: bodily you you they to do threaten Court: Did The Court: Did you A. No. The to them? if did not talk
harm lights strong long you they or have for time hold strong you, anything Well, no, no A. like that? on by myself. lights. They know, put me in a cell The Court: your you to talk refuse so that couldn’t will but was they you, silent, can remain told “You to them? When they? you you They A. Yes. that, told didn’t want to”— you you then remain could The Court: Did feel that they you in The Court: Did to? A. Yes. silent if any way wanted say you A. No. make a statement? must A. No. or action? Either in words The The Court: you you words, told In other whatever Court: them — you dispute was the you them told told whatever them —but right? part, purely voluntary your Well, A. is that — they purely partially questions me asked voluntarily? A. Well, I know but did talk Court: Nobody No. Yes. forced to talk? A. The Court: hearing, pretrial ad- On Creach cross-examination at the 5 mitted that he had convicted and sentenced been years’ grand larceny imprisonment 1943; in sentenced for years’ burglary; imprisonment and, in 1947 5 for years’ felony im- to 15 another and sentenced convicted prisonment; could not be and, either 1958 or 1959—he Michigan year Peni- certain of the to the State —sentenced second-degree years tentiary Lansing for 5 at to 10 *12 burglary forgery. and discretionary power, well its court was within according highest degree of
think, not Mr. Creach in the credibility, reviewing it is for a to believe and not court testimony Mr. Creach’s and disbelieve the other witnesses. my opinion, the court no choice to admit the In had but against confession and admissions interest as defendant’s every voluntary, competent, and material under conceivable theory of or rule evidence and even under constitutional expanded interpretation and the most ethereal Miranda of Arizona, 694, v. 384 U.S. 16 L. Ed. 86 Ct. 1602 2d S. (1966). appears
In one a record half of to be devoted about which palaver among concerning to a court, counsel and witnesses advice the accused to remain silent or to consult speak up or to if he wished and the remainder proof charged, devoted substantive of the crime the evi- overwhelming dence is that the defendant’s confession was voluntary knowingly and that he waived his to re- incriminating main silent. The statements confessions admissible, think, both under the Miranda decision and the state federal constitutions and under what I long-held deem time-tested, the rule of the com- American judiciary mon law now codified the federal under Wit- (1969), § nesses and Evidence 18 U.S.C. as follows: (a) any prosecution brought by criminal the District of the United or Columbia, confession, States (e) in hereof, defined subsection shall be admissible in voluntarily given. is evidence it Before such confession judge evidence, is presence shall, received the trial out jury, any determine issue as to voluntari- judge ness. If the trial determines that the confession voluntarily made it was and the trial shall be admitted in evidence judge permit jury shall to hear relevant evidence on the issue of voluntariness and shall instruct jury give weight such jury to the confession as the feels it deserves under all the circumstances.
(b) judge determining The trial issue volun- shall take tariness into consideration all the circum- surrounding giving stances confession, includ- (1) ing elapsing arraignment the time between arrest and making confession, of the defendant it if was made arraignment, (2) after arrest and before whether such defendant knew the nature of the offense with which he charged suspected or of which he was at the time of making (3) confession, whether or not such defend- required advised ant was or knew that he was not to make any statement such statement could be (4) him, used whether not such defendant had questioning prior advised been to the assist- (5) counsel; anee whether-or not such defendant .of *13 the' assistance of counsel when questioned was without such giving and when confession.. or absence above-mentioned
The presence consideration need judge factors to be taken into conclusive the issue voluntariness not be confession. would, therefore, affirm. Finley Hamilton, JJ., concur in the
Hunter, J.,C. result of the dissent. Department 39855. One. November
[No.
1969.]
Hogenson,
Co.,
Armament
Respondent,
Curtis
v. Service
*
Inc., Appellant.
* Reported in