State v. Blanchey, s. 39797

• Decision Date: 08 May 1969
• Docket Number: 39958,40515,Nos. 39797,s. 39797
• Citation: 454 P.2d 841,75 Wn.2d 926
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Clemon BLANCHEY, Jr., Appellant. In re Clemon BLANCHEY, Jr., Petitioner, v. Jack D. PORTER, Sheriff, King County, Respondent.

Page 926

75 Wn.2d 926

454 P.2d 841

The STATE of Washington, Respondent, v. Clemon BLANCHEY, Jr., Appellant.

In re Clemon BLANCHEY, Jr., Petitioner, v. Jack D. PORTER, Sheriff, King County, Respondent.

Nos. 39797, 39958, 40515.

Supreme Court of Washington, Department 2.

May 8, 1969.

David L. Scott, Seattle, for appellant and petitioner.

Charles O. Carroll, Prosecuting Atty., Jerry Brian Riess, Seattle, for respondent.

NEILL, Judge.

Defendant was charged with second degree murder. He appeals from a conviction of the lesser included offense of manslaughter.

On the morning of March 20, 1967, defendant was released from the King County jail under the county's work release program. He reported to work and later in the morning received permission from his employer to leave the job to attend an employment interview. After the interview, he went to the apartment of Leontyne Barbara Gray and accompanied her to the home of her sister. Defendant then went back to work. He returned to the sister's home about 3:45 p.m. and took Mrs. Gray back to her apartment. About 6:30 p.m., Mrs. Gray's husband arrived home from work and found her body in the apartment. She had been shot through the head. A .45 caliber revolver belonging to the victim, as well as her wallet, money, and various papers were missing from the apartment. A week later defendant was charged with second degree murder in a Seattle district justice court.

The victim's wallet was found on a Cle Elum street on the evening of March 20th. On March 27th, defendant's car was found abandoned in Dryden, Ontario. Later that same day, police officials in Pembroke, Ontario, received a telex message advising that defendant was wanted in Seattle and was believed to be aboard a passenger train due to arrive at Pembroke at 5:09 p.m. Pembroke police officers met the train when it arrived and arrested defendant. The victim's revolver was there found in defendant's suitcase.

That evening, prior to any interrogation of defendant, the Pembroke authorities received a telephone call from the King County prosecutor's office and, acting pursuant to the instructions of the caller, advised defendant of his constitutional rights. Defendant apparently concedes that this warning fully satisfied the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Defendant requested counsel and a Canadian solicitor was appointed to represent him. After a 2 hour conference with this solicitor, defendant gave the Pembroke authorities a signed, prepared statement which was admitted at trial without objection. ¹

On March 31st, two detectives from the Seattle Police Department took defendant into custody from the Pembroke police at the Canadian-New York border. From there they drove by car to Watertown, New York, where they boarded a plane to New York City, changed planes and flew to Seattle. During this trip the detectives discussed Mrs. Gray's death with defendant and obtained his version of the shooting. These statements were consistent with his previous written statement that the shooting was accidental, but did add information as to defendant's illicit relationship with the decedent. Prior to discussing this matter, defendant was again warned of his constitutional rights, although the detectives testified that their warnings were more or less woven into the conversation. The statements made by defendant to the detectives during this trip, determined to be voluntary by the trial court at a pretrial CrR 101.20W hearing, were admitted into evidence over objection.

Defendant's assignments of error bring into issue the admission of the conversations between defendant and the police officers during this trip to Seattle. Error is also assigned to the introduction of testimony concerning defendant's participation in the work release program and his failure to return to jail the night of Mrs. Gray's death.

Defendant first argues that his request for an attorney while in custody in Canada was an exercise of his Fifth and Sixth Amendment rights which cuts off all subsequent interrogation. In support of this position, he cites the following language from Miranda v. Arizona, Supra, at 473--474, 86 S.Ct. at 1627 Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.

It cannot be disputed that an accused has an absolute right to remain silent, and that the police are bound not to physically abuse, browbeat, cajole or otherwise pressure an accused in an attempt to get him to relinquish this right. As stated in Jennings v. United States, 391 F.2d 512, 515 (5th Cir. 1968):

(W)hat the Court sought to interdict in Miranda were those situations in which a person has indicated his desire to exercise his constitutional right of silence but the police refuse to take 'no' for an answer.

Defendant exercised his right to consult an attorney before answering any questions. After consultation with an attorney, defendant gave the signed statement to the authorities. The Canadian authorities did not attempt further interrogation. Even though an accused expresses a desire for counsel and questioning has ceased (as it must) until counsel is provided, an accused may thereafter consent to be questioned. See Coughlan v. United States, 391 F.2d 371 (9th Cir. 1968). This was expressly recognized by the Supreme Court in Miranda, supra, 384 U.S. at 445, 86 S.Ct. at 1612 The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney And thereafter consents to be questioned. (Italics ours.)

Therefore, we hold that police are not barred from further interrogation of an accused merely because he requested counsel, provided such further interrogation occurs after the accused has been given the opportunity to consult with appointed counsel. ²

Defendant next contends that he was not properly advised of his rights prior to the conversations with the Seattle detectives. The defendant was properly warned shortly after his apprehension in Canada. He was again advised of his rights 4 days later by the Seattle detectives although these admonitions were woven into the conversation among the parties. In response to the latter warnings, defendant indicated that he was aware of his rights, having been advised of them by the Canadian authorities.

We need not reach the question of whether the warnings given by the Seattle detectives were defective because they were woven into the conversation or whether, as the state contends, there is a rule of 'substantial compliance' for Miranda warnings. Rather, it is undisputed that defendant was properly advised of his rights while in Canada and was still aware of these rights 4 days later at the beginning of the trip back to Seattle. Defendant under these circumstances was adequately and effectively apprised of his rights. See Maguire v. United States, 396 F.2d 327 (9th Cir. 1968).

Defendant also argues that it is meaningless to advise him of his right to counsel at the beginning of a long plane trip when counsel is obviously not available, and that his failure to request counsel cannot be construed as a waiver of his right to have counsel present during questioning.

When an accused is properly advised that he has a right to counsel before and during police interrogation and that he has a right to remain silent, there is no requirement that the advice of right to counsel be accompanied by a present ability to provide counsel. This same conclusion was reached by the court in Mayzak v. United States, 402 F.2d 152, 155 (5th Cir. 1968):

There is no doubt that Mayzak was warned of his right to have court appointed counsel and to have such counsel present prior to and during any questioning. Rather we are asked to find that the sufficiency of a Miranda warning is diluted or destroyed because the promise of an attorney is not accompanied by a concurrent tender of one. To so hold would be to allow a defendant to use his right to an attorney as a weapon against his custodians. He would simply argue if you will not furnish me an attorney now, even though I am told that I can remain silent, I will talk and after talking object to my words going into evidence. This argument is both hollow and specious. The Miranda warnings given to Mayzak were constitutionally adequate. That he chose of his own free will to speak without the assistance of counsel should give him no cause for complaint.

To hold otherwise would require the police to maintain lawyers in patrol cars, precinct headquarters, and all other places where a suspect might be advised of his right to counsel. Such a course is not necessary to insure the constitutional rights of an accused. Defendant was fully advised of his right to remain silent and of his right to counsel. If defendant had wished to remain silent until another lawyer could be appointed to represent him, all he needed to do was...