State v. Fullen

Decision Date24 July 1972
Docket NumberNo. 434--I,434--I
Citation499 P.2d 893,7 Wn.App. 369
PartiesSTATE of Washington, Respondent, v. Patrick Joseph FULLEN, Appellant.
CourtWashington Court of Appeals

Chas. H. W. Talbot, Seattle, James Short (co-counsel), Federal Way, Court appointed, for appellant.

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

CALLOW, Judge.

The defendant, Patrick Fullen, appeals from his conviction of murder in the first degree. He seeks reversal of the conviction claiming:

1. Reputed admissions and confessions made to law enforcement officers in Florida were improperly admitted.

2. The statements and admissions made in Florida by a co-defendant which implicated him, should have been excluded.

3. It was improper to forbid the defendant from testifying to conversations with his co-defendant on the evening of the alleged crime and in forbidding the psychiatrist, who examined the defendant, from testifying to the history the defendant related to him.

4. The court erred in the instruction given and in refusing defendant's proposed instruction which dealt with the jury's consideration of admissions and confessions.

5. The court erred in allowing the jury to consider murder in the first degree and should have restricted their consideration to murder in the second degree and included offenses.

6. The final argument of the prosecutor constituted prejudicial misconduct.

Audrey Ruud was initially charged with Fullen as a co-defendant. The trial court granted a defense motion for separate trials, and she was tried and convicted prior to the trial and conviction of the defendant. State v. Rudd, 6 Wash.App. 57, 491 P.2d 1351 (1971).

Karsten Knutsen was found dead near Woodinville, Washington, on August 23, 1969. He had been last seen in a restaurant with Audrey Ruud, and the defendant had been observed speaking to her about an hour before Knutsen left this restaurant with her. The next day money was withdrawn from the savings account belonging to Knutsen, and On September 17, 1969, a deputy sheriff in Lee County, Florida, contacted the defendant when he answered a call concerning a motel disturbance. The following took place: (Audrey Ruud is referred to as Mrs. Fullen.)

the fingerprints of Ruud were found on the withdrawal slip. Two days after the disappearance of Knutsen, the landlady of the apartment in which Ruud and the defendant resided discovered that they had left without notice. She found bullet holes and a .38 caliber slug.

A The first thing that he said, I said to him, was 'I have been called on a complaint.' That I was a Deputy and I wanted to talk to him and his wife in his room and his first answer was, 'You know about the man in Washington?'

Q Did you at that time have any information at all?

A I had no information.

Q Did you have any further conversation until you got to the room?

A We started down--I advised him as we were walking this three hundred feet, I advised him not to say any more until we got to the room and I had given his rights. Then, he said, 'I killed a man in Washington.'

The deputy sheriff also testified:

Q Tell us what transpired in the hotel room at that time?

A When we got to the door Mr. Fullen opened the door and invited me to come into the room and Mrs. Fullen was sitting there and pointing her finger like that (indicating) and said: 'He murdered a man in Washington and I told him--'

Q Did he say anything at that time?

A 'Yes, but you stabbed him with a knife.'

Q Did he tell you anything else at that time.

A I stopped their testimony until I was able to advise them of their civil rights. I told them they had to be quiet until I could get--give his rights.

Q Did he express how he felt about you being there at the time?

A Yes, he said he was glad it was all over. That he was-- The defendant expresses disagreement with the admission of testimony by the law enforcement officers of Lee County, Florida, regarding his alleged admissions and confessions. He challenges the efficacy of the advice given to him by these officers concerning his constitutional rights claiming he was not told that any statement might be used as evidence against him, that he was not informed that a lawyer would be appointed for him at public expense without cost to him, and that it is improper for one to acknowledge being advised of his rights and be required at the same time to waive those rights.

Following the CrR 101.20W hearing, the trial court found that the defendant had signed a form, acknowledging that he had been advised of his rights and including a waiver of these rights, on September 17, 1969, and again on September 18, 1969. These were admitted into evidence. The form read:


Before we ask you any questions, you must understand your rights.

You have the right to remain silent.

Anything you say can be used against you in court.

You have the right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning.

If you cannot afford a lawyer, one will be appointed for you before any questioning, if you wish.

If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.


I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me, and no pressure or coercion of any kind has been used against me.

The warnings which must be given an accused as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), are stated as follows in State v. Creach, 77 Wash.2d 194, 199, 461 P.2d 329, 332 (1969):

In general, Miranda requires that, prior to custodial interrogation of an accused, he must be warned: (1) that he has the right to remain silent; (2) that any statement he does make can and will be used as evidence against him in a court of law; (3) that he has the right to consult with counsel before answering any questions; (4) that he has the right to have his counsel present during the interrogation; (5) and that if he cannot afford an attorney, one will be appointed for him without cost to him, prior to questioning, if he so desires.

The ultimate question for decision is always: Was the confession or statement voluntarily given? State v. Darst, 65 Wash.2d 808, 815, 399 P.2d 618 (1965). Miranda, however, indicates that an affirmative answer cannot be supported unless the five warnings listed are given to the accused prior to interrogation.

It was undisputed that he signed these forms, and the trial court concluded he did so being fully advised of his constitutional rights. The trial court also concluded that the oral admissions to the deputy sheriff were freely and voluntarily made, not the result of questioning on the part of the deputy sheriff nor the result of any awareness on the part of the deputy of the events in Seattle to which the defendant referred. The trial court further found that the admissions were given without threat, duress or coercion or prompted by any action by the deputy but were spontaneously uttered and were therefore admissible into evidence. We concur that the oral statements of the defendant were spontaneously and voluntarily uttered prior to custodial detention, were not in response to interrogation and were therefore admissible. State v. Eldred, 76 Wash.2d 443, 457 P.2d 540 (1969); State v. Ratow, 4 Wash.App. 321, 481 P.2d 20 (1971).

We have reviewed the record of the CrR 101.20W hearing and find the court's conclusions are supported by substantial evidence and a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 92 S.Ct 619, 30 L.Ed.2d 618 (1972); State v. Bailey, 79 Wash.2d 477, 487 P.2d 204 (1971); State v. Davis, 73 Wash.2d 271, 438 P.2d 185 (1968).

The defendant acknowledged that he understood his rights. They were set forth in plain, clear and simple terms. There is no showing that he questioned these rights or expressed any doubts concerning them but was content to proceed on his understanding. The challenge raised on the basis of the supposition that the accused did not know his statements might be used as evidence against him is insupportable when the statement itself says it may be used in court. So also is the supposition that he did not understand that counsel would be appointed for him at public expense when he was told that if he could not afford a lawyer one would be appointed for him. To be unable to afford means unable to pay. We do not doubt that the defendant understood that if he could not pay for a lawyer, one would be supplied. State v. Vining, 2 Wash.App. 802, 472 P.2d 564 (1970).

The waiver of rights along with the acknowledgment of having been informed of them was made after due instruction and consideration. The defendant was free to decline to sign anything. He did not decline, but signed. The requirements of Miranda as reiterated in State v. Creach, Supra, inform an accused of his rights in more explicit and preferable language than did the statement of those rights in the form used in Florida. We cannot say, however, that the communication to the defendant was faulty in any material aspect. The objections to the fullness and fairness of the advice given the defendant concerning his constitutional rights are objections as to form and fail as a challenge to the substance. See also State v. Rowe, 77 Wash.2d 955, 468 P.2d 1000 (1970); State v. Blanchey, 75 Wash.2d 926, 454 P.2d 841 (1969), cert. denied, 396 U.S. 1045, 90 S.Ct. 694, 24 L.Ed.2d 688 (1970); Mountlake Terrace v. Stone, 6 Wash.App. 161, 492 P.2d 226 (1971); State v. Lanning, 5 Wash.App. 426, 487 P.2d 785 (1...

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