STATE OF WASHINGTON v. MALINAK, 16536-1-III

• Decision Date: 30 March 1999
• Docket Number: No. 16536-1-III,16536-1-III
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, RESPONDENT, v. STEPHEN LOUIS MALINAK, APPELLANT.

[1]
[2]	STATE OF WASHINGTON, RESPONDENT,; v.; STEPHEN LOUIS MALINAK, APPELLANT.
[3]	No. 16536-1-III
[4]	Washington Court of Appeals
[5]	Source of Appeal: Appeal from Superior Court of Spokane County Docket No: 96-1-02455-5 Judgement or order under review Date filed: 03/26/1997 Judge signing: Hon. Gregory D. Sypolt
[6]	March 30, 1999
[7]	Counsel: Counsel for Appellant(s) David N. Gasch PO Box 30339 Spokane, WA 99223-3005 Counsel for Respondent(s) Mary A. Brady Office of the Pros. Atty. W. 1100 Mallon Spokane, WA 99260 Counsel for Other Parties Joan Snover (Appearing Pro Se) Official Court Reporter 1100 West Mallon Spokane, WA 99260
[8]	The opinion of the court was delivered by: Kurtz, J.
[9]	Judges: Authored by Frank L. Kurtz Concurring: John A. Schultheis Stephen M. Brown
[10]	Panel Five
[11]	[Editor's note: originally released as an unpublished opinion]
[12]	Stephen Malinak was convicted of assault in violation of a protection order and first degree burglary. He appeals, contending the court erred in admitting certain statements he made to officers prior to being informed of his Miranda*fn1 rights. Pro se, Mr. Malinak raises a number of issues that are considered and rejected by the court. His convictions are affirmed.
[13]	FACTS
[14]	On October 31, 1996, at approximately 2:00 a.m., Deputy Jay Bailey of the Spokane County Sheriff's Department responded to a call from Loydeen LeBlanc. She complained that Mr. Malinak, the subject of a protection order, surprised her in her garage, took her into the house, and raped her. After speaking with Ms. LeBlanc, Deputy Bailey contacted Mr. Malinak at his home.
[15]	Deputy Bailey told Mr. Malinak he was not under arrest. When asked, Mr. Malinak said he had not been at Ms. LeBlanc's residence that evening. He volunteered that she had called him and left a message, which was relayed to him by his roommate. At that point, Deputy Bailey left Mr. Malinak with another deputy and spoke privately with the roommate. When the deputy returned, Mr. Malinak asked if he should talk to an attorney. Deputy Bailey repeated Ms. LeBlanc's allegations and asked Mr. Malinak if he wanted to respond to her allegations. Mr. Malinak asked if he was under arrest and he was told he was not.
[16]	Mr. Malinak told Deputy Bailey that he had been home since 8:00 p.m. The deputy disputed this fact, informing him that his roommate had not seen Mr. Malinak's vehicle until 11:30 p.m. and pointed to the absence of frost on the vehicle. At that point, Deputy Bailey asked Mr. Malinak if he and Ms. LeBlanc had sex that night. Mr. Malinak responded that if they had, it was not by his choosing, emphasizing that he was not the one who made the phone call. Mr. Malinak then said, "I really probably need to talk to an attorney." He again asked if he was under arrest and was told that he was not.
[17]	Mr. Malinak continued to ask what Ms. LeBlanc had told the deputies. Deputy Bailey repeated Ms. LeBlanc's version of the events. Mr. Malinak denied them. The deputy again asked Mr. Malinak if he had sex with Ms. LeBlanc and he responded that he would not say. He then said he should talk to an attorney. The deputy asked if he was refusing to talk and Mr. Malinak responded, "well, we're talking." Mr. Malinak was placed under arrest and given his Miranda warning.
[18]	While he was being booked into jail, Mr. Malinak asked to speak again with Deputy Bailey. He was again advised of his Miranda rights and signed the waiver. He told Deputy Bailey he went to Ms. LeBlanc's home at her invitation and had consensual sex with her. He admitted he parked his car on Pines road, away from her house, because he knew there was an order prohibiting contact with her.
[19]	Mr. Malinak was charged with one count of first degree burglary, one count of first degree rape and one count of assault in violation of a protection order. After the CrR 3.5 hearing, the court admitted portions of Mr. Malinak's statements. A jury found Mr. Malinak guilty of first degree burglary, assault in violation of a protection order, and not guilty of rape. He appeals through counsel and has also submitted a pro se brief.
[20]	ANALYSIS
[21]	Did the trial court err in admitting some of Mr. Malinak's statements? Mr. Malinak contends the officers conducted an illegal custodial interrogation of him and, consequently, all of his statements should have been excluded.
[22]	The Fifth Amendment right against compelled self-incrimination requires police to inform a suspect of his or her Miranda rights before a custodial interrogation. State v. Baruso, 72 Wn. App. 603, 609, 865 P.2d 512 (1993), review denied, 124 Wn.2d 1008 (1994). A suspect is deemed to be in custody for Miranda purposes as soon as his or her freedom "is curtailed to a 'degree associated with formal arrest.'" State v. Watkins, 53 Wn. App. 264, 274, 766 P.2d 484 (1989) (quoting Berkemer v. McCarty, 468 U.S. 420, 440, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984)). That determination is based upon how a reasonable person in the same circumstances would have perceived the situation. Watkins, 53 Wn. App. at 274 (citing Berkemer, 468 U.S. at 442).
[23]	The Miranda exception applies when the interview or examination is (1) custodial, (2) interrogation, (3) by a state agent. State v. Sargent, 111 Wn.2d 641, 647-53, 762 P.2d 1127 (1988). In most cases, "custodial" refers to whether the defendant's freedom of movement was restricted at the time of questioning. Id. at 649-50. "Interrogation" occurs when the officer should have known that his questioning would have provoked an incriminating response. Id. at 650-52; State v. Post, 118 Wn.2d 596, 605-06, 826 P.2d 172, 837 P.2d 599 (1992).
[24]	The trial court entered findings of fact and Conclusions of law from the CrR 3.5 hearing. It concluded Mr. Malinak was not subject to custodial interrogation until the point in time at which the deputy spoke with Mr. Malinak's roommate. The deputy continued questioning Mr. Malinak, and the focus of the interrogation turned to the question of whether Mr. Malinak had sex with Ms. LeBlanc. At that point, the court found a reasonable person in Mr. Malinak's position would believe he was under arrest. The court concluded the statements made after that point until the Miranda warning was given were not admissible. Finally, the court concluded that the statements made at the jail were admissible because Mr. Malinak had twice received his Miranda warnings and waived them voluntarily.
[25]	The court did not err in determining the initial questioning was not a custodial interrogation. Deputy Bailey merely knocked at the residence of Mr. Malinak and after being admitted, asked Mr. Malinak general questions. He told Mr. Malinak he was not under arrest. Mr. Malinak could have simply refused to answer any questions and returned to his bedroom. His freedom was not curtailed. Moreover, Mr. Malinak did not unequivocally request an attorney. The court found the statements made by Mr. Malinak about an attorney were equivocal and couched in terms of Smaybe I should have an attorney" and "probably I should have an attorney." The court ruled the State met its burden by showing Mr. Malinak did not definitively request an attorney.
[26]	A knowing and intelligent waiver cannot be found once the Fifth Amendment right to counsel has been clearly invoked unless the accused initiates the renewed contact. State v. Robtoy, 98 Wn.2d 30, 38, 653 P.2d 284 (1982). Waiver is possible, however, when the request for counsel is equivocal. Id. In Robtoy, the defendant said, "{m}aybe I should call my attorney," as if thinking aloud. Id. at 40. The officer replied that if that were the case, the questioning would stop right there. Id. Mr. Robtoy then paused, and continued to talk with officers. The trial court found the defendant's statement did not arise to an equivocal request for an attorney, but was rather more of a thought expressed aloud. The Supreme Court found that the officer's questioning of Mr. Robtoy was proper because he knew

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