State v. Cashaw

• Decision Date: 08 February 1971
• Docket Number: No. 433--I,433--I
• Citation: 480 P.2d 528,4 Wn.App. 243
• Parties: STATE of Washington, Respondent, v. Charles Edward CASHAW, Appellant.
• Court: Washington Court of Appeals

Page 243

4 Wn.App. 243

480 P.2d 528

STATE of Washington, Respondent, v. Charles Edward CASHAW, Appellant.

No. 433--I.

Court of Appeals of Washington, Division 1, Panel One.

Feb. 8, 1971.

Rehearing Denied March 9, 1971.

Review Denied May 6, 1971.

Lowell K. Halverson, Seattle, Court appointed for appellant.

Christopher T. Bayley, King County Pros. Atty., Douglas S. Dunham, Seattle, for respondent.

HOROWITZ, Chief Judge.

Defendant, after trial by jury, was convicted of violating RCW 9.79.060(5). That statute provides that 'Every person who--* * * (5) (s)hall live with or accept any earnings of a common prostitute, * * * (s)hall be punished * * *'

Motion for new trial was denied and judgment and sentence were entered. Defendant appeals, newly-appointed counsel having been appointed for him on appeal.

On November 7, 1969, defendant was arrested by Detectives Bartley, Patrick and Richards for suspicion of living with and accepting the earnings of a common prostitute. He was at that time advised of his Miranda rights, and, prior to being taken to the station, admitted he had been living with Linda, the alleged prostitute, and that he knew she was a prostitute. The next morning defendant was again advised of his rights but refused to sign a form waiving them. Nevertheless, he was questioned and admitted more facts showing his involvement with Linda and again admitted living with her and that they were not married. When he was accused of taking earnings from her, he expressed his desire to end the interview which, according to his wishes, was then terminated.

Defendant concedes there is sufficient evidence to support the charge but contends first that answers given by defendant during custodial interrogation were illegally admitted at trial, and secondly, that RCW 9.79.060(5) is unconstitutional.

The trial court, after a CrR 101.20W pre-trial hearing, held the testimony as to defendant's answers admissible. Substantially the same testimony given by the arresting and interrogating officers, including the officers not testifying at the pre-trial hearing, was subsequently admitted at trial. The court held and its CrR 101.20W findings show that it accepted the testimony of the Seattle detectives ¹ concerning the answers given on each of the two occasion as substantially accurate. It found that on each of the two occasions that defendant was advised of his constitutional rights before answering the questions put to him; that he indicated that he understood his rights; and that the defendant's answers were freely and voluntarily given without duress, promise or threat and with full understanding of his constitutional rights. The court also found that defendant was not requested to sign a written waiver on the first occasion and that he refused to sign a written waiver on the second occasion. It concluded that defendant's statements could be used as evidence against the defendant.

Defendant contends that the officers' testimony was inadmissible because under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), when a person is taken into custody and warned of his rights:

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 * * * (A)ny statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.

Miranda, 384 U.S. at 473--474, 86 S.Ct. at 1627. (Footnote omitted.)

In determining whether any part of the Miranda rule has been complied with, we must look to the trial court's findings to determine what occurred. In a CrR 101.20W hearing, the question of whether waiver occurred is a question of fact resolvable on an Ad hoc basis upon the whole record before the court. When the testimony of the witnesses differs, as in the case here, the credibility is a matter for the trial court's determination. The court in so passing on the credibility of a witness, be he the accused or a police officer, applies no different standards than he does in the case of any other witness. The risk that an accused may not be believed and as a result may be unable to claim Miranda rights in a CrR 101.20W pre-trial hearing is an unavoidable risk of the fact-finding process committed to a trial court. No legislation requires that a trial court accept the testimony of a witness regardless of whether such testimony is believed. Accordingly, whether a defendant waives his constitutional rights must be determined on the basis of testimony accepted as correct by the trial court. State v. Haverty, 3 Wash.App. 495, 475 P.2d 887 (1970); State v. Davis, 73 Wash.2d 271, 283, 438 P.2d 185 (1968).

The trial court, from the testimony it accepts as true, must determine initially whether the mere refusal to sign a waiver of rights form is under the circumstances testified to the same as the refusal to answer questions. One may express a willingness to answer questions orally and at the same time refuse to sign a written waiver form. State v. Hill, 76 Wash.2d 557, 458 P.2d 171 (1969); State v. Auger, 434 S.W.2d 1 (Mo.1968); Auger v. Swenson, 302 F.Supp. 1131, 1137 (W.D.Mo.1969); Hodge v. United States, 392 F.2d 552 (5th Cir. 1968). Accordingly, the mere refusal to sign a written waiver form is but one circumstances to be considered on the issue of waiver in fact. Auger v. Swenson, Supra; cf. People v. Fioritto, 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625 (1968). If the accused in addition to refusing to sign a written waiver of rights form refuses to be interrogated further and the officer continues with the interrogation refusing to take 'no' for an answer, a different question is presented. See State v. Adams, 76 Wash.2d 650, 673, 458 P.2d 558 (1969); Cf. People v. Brockman, 2 Cal.App.3d 1002, 83 Cal.Rptr. 70 (1969). If however, under the totality of circumstances involved, the answers of the accused are given voluntarily, knowingly, and intelligently, following Miranda warnings or following a refusal to sign a written waiver form read by the accused, then the answers are admissible under the rationale of cases such as State v. Hill, Supra. See also, People v. Jarvis, 276 Cal.App.2d 446, 80 Cal.Rptr. 832, 836 (1969).

Miranda does not require that a waiver of Miranda rights be in writing. It requires only that the waiver be made 'voluntarily, knowingly, and intelligently.' Miranda at 384 U.S. 444, 86 S.Ct. 1602, Klingler v. United States, 409 F.2d 299, 308 (8th Cir. 1969). The meaning of the words 'voluntarily', 'knowingly', and 'intelligently' overlap. Their common thrust, however, is directed to the existence of free choice on the part of the accused, that is, a waiver with knowledge of Miranda rights without compulsion and by one mentally and physically capable of exercising such choice. Thus the term 'voluntarily' is used in the due process sense to assure the absence of physical or psychological compulsion. Miranda recognized the possible 'inherently compelling pressures' of custodial interrogation and concluded that an additional mandatory safeguard was necessary to help eliminate such compelling pressures. Hence the use of the word 'knowingly' was intended to make clear the necessity for express Miranda warnings in every case of custodial interrogation as a condition precedent to the admissiblity of answers obtained from such interrogation. More, however, was required. The court recognized that an accused might not be reason of physical ormental impairment understand the warnings. The word 'intelligently' made it clear that such capacity to understand was a prerequisite to the existence of waiver. The word 'intelligently', however, does not mean that the accused must be aware of the incriminating nature of the answers he gives in the course of custodial interrogation; nor is it required that the accused be aware of the law relating to the crime, possible defenses, and the precise nature of the risks of talking without the aid of counsel. State v. Aiken,72 Wash.2d 306, 434 P.2d 10 (1967). As stated in State v. McKnight, 52 N.J. 35, 55, 243 A.2d 240, 251--252 (1968):

Hence if a defendant was given the Miranda warnings, if the coercion of custodial interrogation was thus dissipated, his 'waiver' was no less 'voluntary' and 'knowing' and 'intelligent' because he misconceived the inculpatory thrust of the facts he admitted, or because he thought that what he said could not be used because it was only oral or because he had his fingers crossed, or because he could well have used a lawyer. A man need not have the understanding of a lawyer to waive one. Such matters, irrelevant when the defendant volunteers his confession to a friend or to a policeman passing on his beat, are equally irrelevant when the confession is made in custody after the coercion of custodial interrogation has been dispelled by the Miranda warnings. With such warnings, the essential fact remains that defendant understood he had the right to remain silent and thereby to avoid the risk of self-incrimination. That is what the Fifth Amendment privilege is about.

In the instant case, the court's findings, including the one on voluntariness, are supported by substantial evidence. On each of the two occasions detectives first warned the defendant of his Miranda rights and on each of such occasions, after he was so warned, the defendant stated he understood those rights. Defendant had been interviewed by police officers before. In his second conversation he refused to sign the written waiver form after reading it. His refusal indicated an awareness of his rights. Furthermore, his refusal to continue with the second interrogation when the question was raised concerning his acceptance of Linda's earnings while knowing her to be a prostitute, confirms the fact that he understood his rights. State v. Adams, 76 Wash.2d 650, 671, 458 P.2d 558 (1969); United States v. Hayes, 385 F.2d 375 (4th...