State v. Coles

• Decision Date: 06 March 1981
• Docket Number: No. 4096-II,4096-II
• Citation: 28 Wn.App. 563,625 P.2d 713
• Parties: The STATE of Washington, Respondent, v. Welford COLES, Appellant.
• Court: Washington Court of Appeals

Page 563

28 Wn.App. 563

625 P.2d 713

The STATE of Washington, Respondent, v. Welford COLES, Appellant.

No. 4096-II.

Court of Appeals of Washington, Division 2.

March 6, 1981.

John L. Farra, Aberdeen, for appellant.

Curtis M. Janhunen, Pros. Atty., Montesano, for respondent.

PETRICH, Judge.

Welford Coles has appealed his conviction for second degree murder. The issues raised on appeal concern whether custodial statements made by defendant to law enforcement officers after he asserted his right to remain silent were admissible at trial, and whether cross-examination of the defendant by the prosecuting attorney and the prosecuting attorney's statements during closing argument amounted to prosecutorial misconduct. We hold that defendant's custodial statements were improperly admitted at trial and reverse.

In the evening hours of September 18, 1978, railroad employees discovered a burned body, later identified as that of Carl Smith, in a boxcar located in the Aberdeen railroad yard. Railroad employees and other witnesses told police that Smith, a hobo who camped in the yard, had been seen for several days prior to the discovery of his body in the company of another hobo, later identified as defendant.

A warrant was issued for defendant's arrest, and he was eventually apprehended in Montana. Two Aberdeen police officers, Detective McManus and Officer Pierson, went to Montana to question defendant and bring him back to Grays Harbor County. Upon arrival in Montana, the officers told defendant the purpose of their questioning and advised him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defendant stated that he understood his rights, that he did not want to talk to police and would not "do their job for them." However, defendant began to talk on his own volition about various Aberdeen police officers whom he knew, and the conversation later turned to religion, politics and police work in general.

In the course of this conversation defendant stated that he blamed the world's troubles on the "no-good Catholics and Lutherans." Detective McManus, without another repetition of Miranda warnings, brought the conversation back to the decedent and asked defendant if he knew Smith. Defendant replied that he did not and then said that Smith was a "no-good Lutheran." He went on to say that Smith probably "deserved to die" because he was "no good." The officers showed defendant a photo of Smith's face and asked how he died. Defendant replied that Smith was clumsy and probably fell and was run over by a train. Defendant then said that this could not have happened because Smith's body was found inside a boxcar. At this point police had not told defendant where the body was found, and the location of the body was not evident from the photograph. Before the hour and one-half conversation ended, defendant admitted that he knew Smith and signed a form stating that he understood his rights. However, defendant refused to sign the complete waiver at the bottom of the form. After an omnibus hearing was held, the trial court concluded that the defendant's custodial statements were admissible because they were made voluntarily. The officers later testified to these inculpatory statements.

At trial the State's case consisted of a series of witnesses who provided a network of circumstantial evidence linking defendant and Smith during the period up to the murder. No eyewitness accounts were presented by the State showing defendant to be the murderer. Defendant testified in his own behalf and denied that he had killed Smith. During an intensive cross-examination, defendant continually argued and sparred with the prosecutor. As part of his cross-examination, the prosecutor questioned defendant about the details of his prior criminal convictions and other incidents of misconduct, and during closing argument referred to defendant's prior convictions as part of the pattern of circumstantial evidence pointing to defendant's guilt. Defense counsel did not request a cautionary instruction concerning the use of the prior convictions and replied in response to questioning by the trial court that he would not request such an instruction. The jury returned a verdict of guilty. Following entry of the verdict, defense counsel made a motion for new trial which was denied.

We first address whether the trial court erred in concluding that defendant's custodial statements were voluntary and therefore admissible. At the conclusion of the CrR 3.5 hearing the trial court made, in part, the following finding of fact and conclusion of law:

The defendant initiated conversation with the officers and invited the officers to converse with him.

Based upon the foregoing findings, the court concludes as a matter of law that the statements were made voluntarily, after proper admonishments of constitutional rights which were understood by the defendant, and are admissible at the trial of the defendant.

The State argues that the trial court correctly held defendant's statements to be "voluntary" and admissible. We disagree.

It is undisputed that defendant was in custody when the inculpatory statements were made, and that he made these statements after Miranda rights were given and after he asserted his right to remain silent. Since the statements were the product of custodial interrogation, the State must demonstrate that Miranda warnings were given or that defendant clearly waived his right to remain silent before the statements may be admitted. The bare conclusion made by the trial court in the present case that the statements were "voluntary" and admissible based upon a finding that defendant initiated the conversation, without showing a valid waiver, is not ultimately conclusive of whether the statements are admissible. See State v. Hawkins, 27 Wash.App. 78, 84, 615 P.2d 1327 (1980). We cannot infer a waiver by the fact that defendant continued to answer police questioning after asserting his right to remain silent. State v. Marcum, 24 Wash.App. 441, 446, 601 P.2d 975 (1979). In any case, we are not bound by the trial court's findings following a suppression hearing on an issue of constitutional magnitude, e. g. State v. Daugherty, 94 Wash.2d 263, 616 P.2d 649 (1980); State v. Agee, 89 Wash.2d 416, 419, 573 P.2d 355 (1977), and are required to make our own independent assessment of the record to determine if defendant did in fact waive his rights.

A waiver of Miranda rights need not be explicit but may be inferred from particular facts and circumstances. North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). A waiver may be found when defendant freely and selectively responds to police questioning after initially asserting Miranda rights. See e. g. State v. Young, 89 Wash.2d 613, 619-20, 574 P.2d 1171 (1978). However, the burden is upon the State to show an intelligent and voluntary waiver by a preponderance of the evidence. E. g. State v. Gross, 23 Wash.App. 319, 597 P.2d 894 (1979). Once a defendant asserts his right to remain silent, this must be scrupulously honored, and all interrogation must cease. Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313, 321 (1975); State v. Chapman, 84 Wash.2d 373, 376-77, 526 P.2d 64 (1974); State v. Haynes, 16 Wash.App. 778, 786, 559 P.2d 583 (1977). See also State v. Boggs, 16 Wash.App. 682, 688, 559 P.2d 11 (1977). Statements made by a defendant after "custodial interrogation" is continued or resumed in the absence of new warnings may not be admissible as voluntary and may not form the basis for a waiver. Michigan v. Mosley, 423 U.S. at 106, 96 S.Ct. at 327, 46 L.Ed.2d at 322; State v. Haynes, supra. See also State v. Pierce, 94 Wash.2d 345, 352, 618 P.2d 62 (1980).

In the present case we cannot conclude that the State carried its burden to show that police scrupulously honored defendant's assertion of Miranda rights and did not resume interrogation, so that a finding of waiver can be inferred. ¹ The State argues that the defendant himself resumed the conversation by asking questions about Aberdeen police after asserting initially that he would not talk about the incident under investigation. This ignores the fact that the officers subsequently turned the conversation back to the victim without again giving Miranda warnings. Under these circumstances, it must be concluded that by their continued questioning of defendant the officers had reason to believe he would make incriminating responses. As such, their interrogation of defendant continued. See State v. Hawkins, supra at 82, 615 P.2d 1327 (defining "custodial interrogation" and citing Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)). Since the police officers continued their interrogation after defendant stated that he did not wish to talk, the defendant's right to cut off questioning was not scrupulously honored. Therefore, he cannot be deemed to have waived his rights, and his subsequent statements are not admissible.

We hold further that the admission of defendant's custodial statements was not harmless error. In view of the fact that the State's case consisted solely of circumstantial evidence, we cannot conclude that the record contains other independent and overwhelming evidence of guilt. E. g. State v. Hawkins, supra at 84, 615 P.2d 1327 (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967)). Therefore, the admission of defendant's custodial statements must be held to be reversible error.

We now address whether or not the actions of the prosecutor during cross-examination of defendant and during closing argument rose to the level of prosecutorial misconduct. On direct examination defendant admitted that he had two prior convictions for second degree assault. During cross-examination the prosecuting attorney asked defendant questions concerning specific details of the two prior assaults:

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