State v. Braun

• Decision Date: 03 May 1973
• Docket Number: Nos. 41885--41888,s. 41885--41888
• Parties: The STATE of Washington, Respondent, v. Thomas Eugene BRAUN, and Leonard Eugene Maine, Appellants.
• Court: Washington Supreme Court

Page 157

82 Wn.2d 157

509 P.2d 742

The STATE of Washington, Respondent, v. Thomas Eugene BRAUN, and Leonard Eugene Maine, Appellants.

Nos. 41885--41888.

Supreme Court of Washington, En Banc.

May 3, 1973.

Williams & Novack, Edward D. Hansen, Everett, for Maine.

Anderson, Hunter, Carlson & Dewell, William W. Baker, Everett, for Braun.

Robert Schillberg, Snohomish County Pros. Atty., David G. Metcalf, Deputy Pros. Atty., Everett, for respondent.

STAFFORD, Associate Justice.

A jury found the codefendants, Braun and Maine, guilty of first-degree murder, first-degree kidnapping, robbery and larceny by possession. The jury also determined that defendant Braun should receive the death penalty. Both defendants have appealed.

Codefendants began a 6-day crime spree with the burglary of a store in Twisp, Washington, where .22-caliber pistols and some ammunition were stolen. Thereafter they kidnapped a young woman in Snohomish County, murdered her and stole her car. They continued with the robbery of a hotel in Seattle, another murder and car theft in Oregon, another murder, rape, attempted murder and a kidnapping in California. Finally, they were arrested in California.

Defendant were incarcerated in California during which time each made a confession. They were tried jointly in California and found guilty of multiple crimes. Codefendant Maine testified at the trial and attempted to excuse his participation in the crimes by placing the primary blame upon Braun. Maine received life imprisonment and Braun was sentenced to death.

Subsequently, they were returned to Washington and charged jointly with the crimes committed in Snohomish County. Their motions for change of venue were denied. Pursuant to stipulations signed by defendants, the jury was permitted to separate during both the guilt and penalty phases of the bifurcated trial.

Defendants were found guilty of all charges. The death penalty was imposed upon Braun, and Maine was sentenced to life imprisonment. The defendants' separate appeals have been consolidated for the purpose of review.

Defendant Braun assigns error to the admission of his California confession. He claims that he had not made a knowing and intelligent waiver of his rights.

Following their arrest on the morning of August 22, 1967, defendants were taken to the county jail in Sonora, California. At lunch time Maine told the jailer that Braun had 'killed them.' He was cautioned to say no more. At about 12:30 p.m., in the presence of the jailer and a court reporter, Maine was interrogated by Agent John Smoot of the California Department of Justice. Mr. Smoot identified himself as a police officer, informed Maine of his constitutional rights and that he was under suspicion of attempted murder. Maine indicated that he understood his rights and was willing to talk. Thereafter, he confessed to the entire series of crimes but placed primary responsibility for the murders upon Braun. Maine does not challenge his own confession.

Shortly thereafter, Agent Smoot interviewed Braun. A court reporter was present. The record indicates that Smoot identified himself as a police officer and gave Braun the warning required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Although Braun asked some questions about the appointment of counsel, his immediate concern was to talk with Maine rather than with a lawyer. ¹ Furthermore, he asserted his right to remain silent and the interview terminated.

Pursuant to Cr.R 101.20W the Washington trial court conducted a hearing on the admissibility of Braun's confession. The court found that while it was unclear whether Braun actually waived his right to counsel during the first interview, he clearly did so in the second. On that occasion Braun was again informed of his constitutional rights, including his right to have counsel appointed and present during questioning. He indicated that he understood his rights, waived them and confessed the entire series of crimes, assuming sole responsibility for the actual killings.

There is substantial evidence to support the trial court's determination that Braun made a knowing and intelligent waiver of his rights and voluntarily confessed. Reading the court reporter's transcript of the first interview in the light most favorable to Braun indicates that he was asserting his right to remain silent until he talked to Maine and he wanted to check with Maine to determine what arrangements to make about counsel. In fact, he testified at the pretrial confession hearing that the reason he wanted to talk with Maine was to 'Find out basically whether or not he had the funds to hire an attorney, or whether his parents might be able to hire one.'

Clearly this is not a case in which a defendant asserted his rights and the police refused to take 'no' for an answer. See State v. Blanchey,75 Wash.2d 926, 930, 454 P.2d 841 (1969), cert. denied, 396 U.S. 1045, 90 S.Ct. 694, 24 L.Ed.2d 688 (1970). Having originally complied with Braun's request, the authorities were free to question him a second time, after his rights were completely explained at the commencement of the second interview and he expressly waived them.

Braun claims his waiver was not voluntary because of deception practiced by the California police. Between the time of Braun's first and second interrogations, Agent Smoot reinterviewed Maine and told him that his confession would be admissible against Braun if repeated in Braun's presence. Immediately preceding Braun's second interrogation, Braun and Maine were allowed to confer pursuant to Braun's own request. At that time Maine told Braun that he intended to confess in his presence and that a statement so made could be used against Braun. Actually, this was a misstatement of California law. ² It had been related to Maine, however, for the purpose of inducing Braun to confess by convincing him that denial of Maine's assertions would be futile. Braun argues that such deception vitiates his waiver as a matter of law.

While we do not condone deception, that alone does not make a confession inadmissible as a matter of law. State v. Thompson, 38 Wash.2d 774, 232 P.2d 87 (1951). See generally, Annot., 99 A.L.R.2d 772 (1965). Prior to Miranda the inquiry was whether, under the totality of the circumstances, the deception practiced was such as to make the confession involuntary. Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969). Since Miranda the inquiry has shifted to whether the deception was such as to make a waiver of constitutional rights involuntary. Thessen v. State, 454 P.2d 341 (Alas.1969); See also People v. Watkins, 6 Cal.App.3d 119, 85 Cal.Rptr. 621 (1970); People v. Smith, 108 Ill.App.2d 172, 246 N.E.2d 689 (1969) cert. denied, 397 U.S. 1001, 90 S.Ct. 1150, 25 L.Ed.2d 412 (1970). The test of voluntariness is 'whether the behavior of the State's law enforcement officials was such as to overbear petitioner's will to resist and bring about confessions not freely self-determined--a question to be answered with complete disregard of whether or not petitioner in fact spoke the truth.' Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 741, 5 L.Ed.2d 760 (1961); United States v. Robinson, 142 U.S.App.D.C. 43, 439 F.2d 553, 570 (1970).

The state bears the burden of proving voluntariness by a preponderance of the evidence, however, rather than beyond a reasonable doubt as asserted by defendant Braun. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); State v. Davis, 73 Wash.2d 271, 285--286, 438 P.2d 185 (1968). The state has met that burden. An examination of cases in which the effect of deception on the voluntariness of a confession was at issue demonstrates that the deception here involved is not the type which, as a matter of law, has been held to overbear a defendant's will to resist. Confessions have been held to be involuntary when the police have misrepresented that the accused's wife would be taken into custody if he did not confess, ³ or that a friend would lose his job if the accused did not confess, ⁴ or when a confession was obtained while the accused was under hypnosis. ⁵ On the other hand, a confession has been held to be voluntary even though the suspect was falsely told that his polygraph examination showed gross deceptive patterns, ⁶ or that a cosuspect had named him as the triggerman, ⁷ or when the police concealed the fact that the victim had died. ⁸

There is substantial evidence to support the trial court's conclusion in this case that Braun's waiver was voluntary. Braun was fully advised of his rights at the original interview. When he initially indicated his intention to remain silent until he talked to Maine, the interview was terminated. His request to talk to Maine was granted. At that time he discovered that Maine had already made a statement. Although Maine relayed a misstatement of the California law, there is no indication that Braun was influenced by it. At his 101.20W hearing, Braun testified but did not contend that the misstatement had any influence on his decision to confess.

Prior to the second interview, at which he confessed, he was again given the Miranda warnings. He indicated he fully understood his rights and desired to talk. Thereafter, he fully and without hesitation confessed, assuming full responsibility for the actual killings. There is no evidence that he was threatened, coerced or cajoled by the authorities. Under such circumstances, we cannot say Braun's waiver was involuntary. The confession was admissible.

Although present in court, codefendant Maine did not testify in the instant case. The state introduced Maine's testimony, given at the Braun-Maine trial in California, concerning the Snohomish County crimes. The jury was instructed to consider it only on the issue of Maine's guilt. Braun assigns error to the introduction of such testimony. He asserts that despite the cautionary instruction, the use of...