State v. HavertyState v. Haverty
- Reporters:
- , , ,
- Before:
- Horowitz
The defendant Haverty was convicted by the trial court of the crime of grand larceny by possession of a ladies’ suede coat. He appeals.
Defendant’s court-appointed attorney on appeal has filed a motion to withdraw as counsel and dismiss the appeal because he finds no basis on which an appeal could reasonably be prosecuted. The motions are accompanied by supporting briefs. The state supports the motion of appellant’s counsel on appeal. It is our duty to make an independent examination of the record for the purpose of determining whether the trial court committed any potentially reversible errors. Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967); State v. Theobald, 78 W.D.2d 173, 470 P.2d 188 (1970).
Defendant’s counsel suggests that three possible errors are without merit; namely, the possible application of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974 (1966); the possible unlawful search and seizure of the coat; and the possible insufficiency of the evidence to support the conviction.
The evidence shows that on July 18, 1969, at about 10:30 p.m., two Seattle Police Department officers saw the de
Statements of a later charged defendant made during the investigatory stage of a possible crime, and before the arresting officers have knowledge of sufficient facts to constitute probable cause to arrest the defendant, are admissible at trial even though the defendant has not been previously informed of his constitutional rights as described in
Miranda. State v. Berkins,
2 Wn. App. 910, 471 P.2d 131 (1970);
State v. Creach,
77 Wn.2d 194, 198, 461 P.2d 329 (1969). In the instant case when the officers first
Statements made at the police station after the defendant was again warned concerning his constitutional rights were also admissible. Their admissibility is governed by the requirements of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974 (1966). Under Miranda, the state must show that warnings concerning the defendant’s constitutional rights were first given, second, that the statements were voluntarily made and third, that the defendant waived his Miranda rights to remain silent. State v. Davis, 73 Wn.2d 271, 438 P.2d 185 (1968); Seattle v. Gerry, 76 Wn.2d 689, 458 P.2d 548 (1969); State v. Collins, 74 Wn.2d 729, 446 P.2d 325 (1968); State v. Blanchey, 75 Wn.2d 926, 454 P.2d 841 (1969); State v. Emmett, 77 Wn.2d 520, 463 P.2d 609 (1970); State v. Erho, 77 Wn.2d 553, 463 P.2d 779 (1970). In determining what the facts are, we do not reevaluate the relative credibility of the witnesses’ testimony below. State v. Davis, supra at 283.
In the instant case, the parties below agreed that the CrR 101.20W hearing on admissibility of the statements, instead of being heard prior to the commencement of the trial, should be heard during the trial; and at the end of the trial the court would pass upon the voluntariness of the defendant’s statements that the state proposed to offer. However, the court entered no written findings on voluntariness as contemplated by CrR 101.20W. None were requested by either party possibly because of the oral stipulation concerning how the evidence would be received. A finding of waiver may be inferred from a finding that the statement was voluntary and the court’s action in admitting the statement into evidence.
State v. Blanchey, supra;
To the extent that Miranda requires more than a showing of voluntariness for a confession to be admitted, we may assume the trial court had considered these matters when determining the confession to be admissible—particularly when a knowing and intelligent waiver is supported by the trial court’s findings of fact.
The last reference to findings of fact does not relate to findings on waiver because none was entered. We can see no difference in principle between the right of a court to draw an inference of waiver from a written finding of voluntariness and the admission of evidence of the defendant’s statement, and the right of a court to draw a similar inference when the finding or determination of voluntariness is oral, but the defendant’s statement is nevertheless admitted. Consequently, we conclude that the court impliedly determined that waiver had been proved.
There remains, however, the question of whether there was sufficient evidence to support a determination of voluntariness and waiver. Under Miranda, the state has a heavy burden to show a knowing, intelligent and voluntary relinquishment of rights (384 U.S. at 444). Waiver need not be express; it may be implied by the facts and circumstances under which the statement is made. United States v. Hayes, 385 F.2d 375 (4th Cir. 1967); State v. Blanchey, supra. However, Miranda as interpreted by the Supreme Court of Washington, requires more than the admission of warnings followed by a voluntary statement to show waiver. Rather, additional evidence is required to show that the defendant understood his rights and relinquished them “voluntarily, knowingly and intelligently.” State v. Davis, supra; Seattle v. Gerry, supra.
On the matter of the seizure of the coat, we are of the opinion that the coat was properly seized. It was in plain view of the public and of the officers and was properly seized as an incident to a lawful arrest. State v. Regan, 76 Wn.2d 331, 457 P.2d 1016 (1969); State v. Wilson, 70 Wn.2d 638, 424 P.2d 650 (1967); see Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); and Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).
Defendant’s counsel next considers whether the defendant had knowledge of the fact that the coat was stolen at the time he received it. He points out that mere possession of stolen goods is not prima facie evidence of the crime, but that the rule is otherwise when there is other
The defendant has filed a supplemental brief pro se assigning five additional claims of error. In our opinion, all lack merit. We wish to comment, however, on defendant’s claim that he was, in the instant case, denied the right to bail as guaranteed by the eighth amendment to the United States Constitution and, as a result, was unable to secure witnesses on his behalf. See State v. Montague, 73 Wn.2d 381, 392, 438 P.2d 571 (1968).
The appeal record as supplemented shows that bail was fixed for the crime of grand larceny with which he was charged below (Const. art. 1, § 20,
The separate proceedings before Judge Shorett are not in the record on appeal in this case, nor are such proceedings before us for review. Indeed, there is no record of any application to review the order of continuance in that separate proceeding. Furthermore, the record fails to show that any application was made in the instant case to the court
The judgment is affirmed.
Farris and Williams, JJ., concur.