State v. Boggs, 2015--II

• Decision Date: 07 January 1977
• Docket Number: No. 2015--II,2015--II
• Citation: 559 P.2d 11,16 Wn.App. 682
• Parties: The STATE of Washington, Respondent, v. Wilburn Carl BOGGS, Jr., Appellant.
• Court: Washington Court of Appeals

Page 682

16 Wn.App. 682

559 P.2d 11

The STATE of Washington, Respondent, v. Wilburn Carl BOGGS, Jr., Appellant.

No. 2015--II.

Court of Appeals of Washington, Division 2.

Jan. 7, 1977.

Steven E. Lundstrom, Tacoma, for appellant.

Guy M. Glenn, Pros. Atty., South Bend, for respondent.

REED, Judge.

Defendant Wilburn Carl Boggs, Jr. appeals from a Pacific County judgment and sentence entered upon a jury verdict finding him guilty of one count of armed robbery. On appeal error is assigned to (1) the admission into evidence of defendant's alleged response to a deputy sheriff's questions after defendant had requested an attorney and had asserted his right to remain silent; (2) permitting defendant's accomplice to testify as a witness for the State; and (3) the court's refusal to admit into evidence as a basis for impeachment the transcript of the accomplice's deferred sentence hearing. We find no grounds for reversal, and the judgment of the trial court is affirmed.

The events giving rise to this appeal began at approximately 1:45 p.m. on Friday, May 2, 1975, when a man wearing a nylon stocking over his face and clad in a green rain poncho and dark knit hat pointed a pistol at the proprietors of a neighborhood grocery store in East Raymond and demanded that they hand over the money in the cash register. After the store owners complied with his demands, the robber exited from the store and was picked up by another individual, who was driving an older model blue pickup truck with a distinctive black tailgate.

Later that same afternoon investigative officers went to the Boggs residence and requested that the defendant accompany them to the police station for questioning. Boggs agreed, and prior to their departure he was read his constitutional rights. On Saturday, the day after the robbery, the police contacted one Joachim Preinesberger, a known associate of the defendant. When questioned concerning his whereabouts at the time of the robbery, Preinesberger admitted that he had driven the blue pickup truck. In addition to detailing his own involvement in the robbery, Preinesberger aided the police in locating both the money and the clothing used in the robbery, and identified defendant Boggs as the other perpetrator of the crime.

Defendant was placed in custody following his apprehension on Friday afternoon. During the course of the weekend he was interrogated several times by members of both the Pacific County Sheriff's Office and the Raymond Police Department. On at least two occasions, including after he was confronted with the fact of Preinesberger's arrest and confession, Boggs refused to answer questions and requested an attorney. At that time he was unable to retain private counsel, and under local practice, his request for appointed counsel could not be granted until Monday when court convened.

On Sunday, May 4, 1975, after making a phone call, defendant Boggs was returning to jail with a deputy sheriff. He and his escort became engaged in a casual conversation, during the course of which the deputy indicated that it would be helpful if the defendant could clear up a couple of unresolved matters in connection with the robbery. When Boggs failed to answer, the deputy asked what he had done with the money and the clothes used in the robbery. This time Boggs responded. Defense counsel's motion to suppress all testimony relating to that conversation was denied, and both the defendant and the deputy testified at trial. The deputy's recollection was that the defendant made an incriminating response:

A I indicated that if he could tell us specifically where the clothes were that he had used and what happened to the rest of the money, it would be a big help. To those questions he did have a reply.

Q What was his reply?

A He stated that the clothes that he used he had given to Mr. Preinesberger shortly before leaving Preinesberger's residence. He said he did not know what happened to the clothes after that point.

Q You specifically remember him saying the clothes that he used?

A Yes.

Q Did he make any other statements?

A Yes. In reference to the money he stated that the money that he put into the garage was all that had been taken. There was no other money to his knowledge.

Defendant testified to a different version of the conversation:

A I told him that I didn't know where the money was. I told him Preinesberger probably had the clothes. That's when he went down and asked Preinesberger.

Q In other words he testified to a different statement from the one you made, is that correct?

A Yes. We talked about all different things while we was walking across the boardwalk from making the phone call. He just throwed that in there and I said, 'I didn't know where the money is at.' I said, 'You'd have to ask Preinesberger.' That's what he did.

Defendant assigns error to the admission of the deputy's testimony relating to the above described conversation.

Statements obtained from an individual who is subjected to custodial police interrogation are admissible provided certain procedural safeguards are properly observed so that the individual is fully accorded his privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966). Miranda states that in the event the individual expresses a desire to have the assistance of counsel or chooses to assert his right to remain silent, all interrogation must cease. Miranda v. Arizona, supra, 384 U.S. at 473--474, 86 S.Ct. 1602. See also Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); Williams v. Brewer, 509 F.2d 227 (8th Cir. 1974); United States v. Menichino, 497 F.2d 935 (5th Cir. 1974); United States v. Jeffery, 473 F.2d 268 (9th Cir. 1973); State v. Chapman, 84 Wash.2d 373, 526 P.2d 64 (1974).

In the instant case the prosecution contends that Boggs' statements are admissible even though they were made after defendant had declined to answer any questions and had requested an attorney. First, it is suggested that the incriminating statements were not the product of interrogation, but rather were voluntary responses made during the course of an informal conversation. As Miranda clearly indicates, 'interrogation' encompasses much more than mere question-answer sessions; often the more successful techniques include psychological tactics and patient maneuverings designed to undermine the suspect's will to resist. See Miranda v. Arizona, supra, 384 U.S. at 448--456, 86 S.Ct. 1602. Any custodial statement is suspect and the burden is upon the State to demonstrate if it can, that such a statement was 'volunteered' in the Miranda sense, I.e., that it was spontaneous and not prompted by questioning or other action calculated to elicit response. State v. Toliver, 6 Wash.App. 531, 494 P.2d 514 (1972); State v. Ratow, 4 Wash.App. 321, 481 P.2d 20 (1971). We cannot say that Boggs' statements were spontaneous and freely given; he had been in custody for three days and had been unable to confer with an attorney, on more than one occasion he had asserted his Miranda rights, and his statements were prompted by the remarks of the deputy sheriff who was escorting him to the phone.

The State also argues that the statements are admissible under the rule announced in Michigan v. Mosley, supra, 423 U.S. at page 102, 96 S.Ct. 321, that exercise of the right to remain silent and to thereby terminate interrogation does not create a per se proscription of indefinite duration upon any further questioning by the police. ¹ The admissibility of statements obtained after a person in custody has exercised his Miranda right to remain silent is dependent upon whether that right was 'scrupulously honored.' Michigan v. Mosley, supra at 104, 96 S.Ct. 321. Washington has had the opportunity on one occasion to apply the Mosley holding. In State v. Robbins, 15 Wash.App. 108, 547 P.2d 288 (1976), the facts again lent themselves to finding that the defendant's exercise of her right to remain silent had been scrupulously honored. She was first interrogated on Friday. When she indicated that she did not wish to answer any questions the session was immediately halted, and she was not confronted again until the following Monday, at which time she was readvised of her rights. She chose then not to remain silent any longer and proceeded to confess to the charges against her.

We think defendant's decision in the instant case to assert his right to remain silent was not scrupulously honored. Although Mosley differs factually from the instant case in that there different law enforcement officers questioned the suspect about two separate offenses, we do not think these distinctions are determinative. State v. Robbins, supra. It is our opinion that the factors which caused the court in Mosley to conclude defendant's rights had been 'scrupulously honored' were that the police had ceased interrogation immediately upon the defendant's exercise of his rights, that they resumed their interrogation only after the passage of a significant period of time, and that subsequent interrogation was preceded by a reiteration of the Miranda rights. Michigan v. Mosley, supra, 423 U.S. at 106, 96 S.Ct. 321. In the instant case defendant's Miranda rights were not repeated prior to his allegedly responding to the deputy's remarks with incriminating statements. When a person has chosen to remain silent, we think, and Mosley seems to indicate, that the Miranda warnings must be readministered before law enforcement agencies can recommence interrogation. To permit otherwise would enable the police to convey the impression that any previous assertion of the right to remain silent was merely a technical obstacle requiring only token observance before questioning could resume. On the other hand, to readvise the individual of his Miranda rights demonstrates that his earlier decision to remain silent has been recognized by the police, and also reminds the...