State v. Cuzzetto

• Decision Date: 10 July 1969
• Docket Number: No. 40380,40380
• Citation: 76 Wn.2d 378,457 P.2d 204
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Eugene F. CUZZETTO, Appellant.

Page 378

76 Wn.2d 378

457 P.2d 204

STATE of Washington, Respondent, v. Eugene F. CUZZETTO, Appellant.

No. 40380.

Supreme Court of Washington,

Department 2.

July 10, 1969.

Dellwo, Rudolf & Grant, Richard J. Schroeder, Spokane, for appellant.

Donald C. Brockett, Pros. Atty., Spokane, for respondent.

HILL, Judge.

Eugene Cuzzetto was found guilty of negligent homicide, driving while under the influence of intoxicating liquor, and reckless driving. We have for consideration his appeal from these convictions.

The established facts are: Appellant and Mrs. Laura Adams were riding in appellant's car (a 1966 Ford Galaxie hardtop, 2-door) in the very early morning of Sunday, August 27, 1967; he was intoxicated; that while traveling at a speed variously estimated from 60 to 80 miles an hour (45 miles per hour being the legal limit at the time and place) the car in which they were riding went off the road and down into a freshly plowed field, skidded sideways, turned over several times, and finally stopped upright on its wheels with the right door jammed shut so that it could not be opened. Some time during its gyrations, Mrs. Adams and appellant were both thrown from the car--she, apparently, through the rear window. Her face and head were horribly cut, and death was assumed to be instantaneous. Appellant sustained two broken and some cracked ribs, a leg injury (which did not prevent his walking), two big lumps on his head, and, naturally, a severe shock.

To secure a conviction on any one or all of the three charges, the state had the burden of proving beyond a reasonable doubt that appellant was driving the car.

Appellant testified that after he and Mrs. Adams left the Rainbow Tavern at Hauser Lake, Idaho, just before midnight (Saturday, August 26), following an evening of drinking and dancing, the next thing he could remember was 'a crowd of people and, oh, of, ah, unsettled feeling inside of me, uncomfortable feeling.' He didn't know where this was. His first definite remembrance was 'sitting in the tub in the hospital giving myself a bath.' This was Sunday morning, August 27. He testified further that he did not know whether he or Mrs. Adams had been driving the car.

Despite his subsequent complete lack of recollection, he had answered questions and talked with a number of people in the period of more than 2 hours he was at the scene following the tragedy. The evidence to prove that appellant had been driving the car comes from the statements made by him during that period.

Eight teenagers in a car returning from a drive-in theater and traveling in the opposite direction to appellant's car, saw that car just before it left the road and immediately after. Some saw appellant's car with its right wheels off the traveled roadway going 'sixty to seventy' or 'seventy to eighty miles an hour.' After appellant's car went off the road into the plowed field, the teenagers backed their car two or three hundred feet to the point where appellant's car had left the road. Some of them then went down into the plowed field to render any assistance they could. They found no one in the car, but soon discovered Laura Adams' body; two of the boys found appellant on the ground trying to get up. They went to his assistance. On inquiry as to how he felt, he replied 'fine.' They helped him up to the road and one of the boys asked him if he had been driving and he said, 'I guess so.' The boy then asked if he had fallen asleep at the wheel, and he replied, 'I guess so.'

Two other boys and two of the girls heard one or the other of these inquiries and appellant's responses of 'I guess so.' The boy who made the inquiries also testified that the appellant kept asking them 'not to call the cops.'

It is conceded that this testimony was admissible. The boys to whom appellant talked were not officers, and he was under no restraint.

We come now to a consideration of a statement by appellant which was excluded from the jury's consideration.

At about 12:58 a.m., the first state patrol trooper, James R. Johnson, arrived. The appellant was on the road with the teenagers by this time, and he was the only one who knew what had happened. The trooper asked him if the woman had been driving, and he responded 'I was.'

The trial court held that this constituted an interrogation by an officer before appellant had been warned of his constitutional rights, and it was excluded from the consideration of the jury. ¹

Officer Johnson then advised appellant of his constitutional rights (giving what are now generally referred to as 'Miranda warnings' ²). Appellant indicated that he understood the warnings and did not desire to waive them. Trooper Johnson did not question him further.

State Patrol Trooper James Hingston arrived a few minutes later (at about 1 a.m.) and, being the senior trooper, took charge. He was advised by Trooper Johnson that appellant had been advised as to his constitutional rights. Another trooper, Louis E. Walker, also arrived and was with Hingston when the latter first talked with the appellant. Hingston estified that he had asked appellant if he owned the Ford in the field and if he had been driving it, to both of which questions appellant responded, 'yes.' After a short conversation with appellant, Trooper Hingston placed him under arrest on a charge of public intoxication, and placed him in the back seat of Trooper Johnson's patrol car. Appellant was left alone in that car while the investigation continued. When Johnson returned to his car, appellant volunteered the statement, 'I did all I could to avoid the accident.'

A deputy from the prosecuting attorney's office, Clarence A. Boling, arrived at about 2 a.m. He also advised appellant of his constitutional rights, and the latter indicated that he wanted to waive his rights and told Mr. Boling about the trip to Hauser Lake, and said that he had been driving at the time of the accident.

The trial court had held a CrR 101.20W hearing before the trial began, and while the statement made to Trooper Johnson before the appellant was advised of his constitutional rights was excluded, the trial court determined that despite appellant's intoxication, he did voluntarily and intelligently waive his constitutional privilege to remain silent when talking to Hingston and Boling, and in his volunteered statement to Johnson that he had done all he could to avoid the accident.

The jury was also instructed ³ that any admissions made by the appellant must be disregarded unless they were made freely and voluntarily.

It is the contention of the appellant that the trial court erred in admitting the statement he volunteered to Trooper Johnson and his responses to the questions of Trooper Hingston and to those of Deputy Prosecutor Boling after the warnings had been given.

Appellant points out that he was arrested for intoxication in public and claims that the combination of intoxication and shock made it impossible for him to knowingly and voluntarily waive his constitutional right against interrogation.

He directs particular attention to Boling's statement that at times during his interrogation he (the appellant) was incoherent and tended to wander from the subject and that, on occasion, questions had to be repeated. It must be remembered, however, that Boling and the appellant were talking for more than 30 minutes and that during that time the appellant gave Boling a very detailed account of the evening's activities; definitely placed himself at the wheel of the car, and complained that there had been lights on his side of the road. Boling quotes him as having said, 'Well, they may not have been on my side of the road, but it looked like it to me.'

The doctor who examined appellant at the hospital on Sunday morning, August 27, testified that appellant told him that he did not know who had been driving the car. The doctor testified further that it was possible for a person to have a loss of memory under the circumstances.

It is quite clear that incriminating statements were made after the Miranda warnings had been given to the appellant, and the primary question presented here is whether he was so intoxicated that he could not knowingly and voluntarily have waived his right to remain silent.

A very comprehensive review of the cases on the subject of the effect of intoxication on the voluntariness of confessions is found in 69 A.L.R.2d 361, wherein, at page 364, the annotation says:

The courts are agreed that proof that one who has confessed to crime was intoxicated at the time of making a confession goes to the weight and credibility to be accorded to the confession, but does not require (at least where the intoxication does not amount to mania, and the intoxicants were not furnished the accused by the police or other government officials) that the confession be excluded from evidence.

(Footnotes omitted.)

That annotation appeared in 1960 and since that time more than a score of cases have considered the effect of intoxication on the voluntariness of confessions or inculpatory statements. Most of the cases refer to and approve the rule as stated in the annotation, and in only three cases has it been held error to have admitted the confessions or inculpatory statements. In a fourth case the trial court refused to admit the confessions made while intoxicated and directed an acquittal. On an appeal by the state, the trial court's action was affirmed. We elaborate somewhat on these four cases.

The case on which the appellant places his greatest reliance is Logner v. North Carolina, 260 F.Supp. 970 (M.D.N.C.1966). This was a habeas corpus proceeding in a United States District Court by a state prisoner. It was held that the prisoner (Logner, who had been convicted of safe cracking and safe robbery on the basis of incriminating statements made during the interrogation following his arrest for driving while under the influence of intoxicants) was too intoxicated to realize what h...