State v. Green

• Decision Date: 15 July 1969
• Docket Number: No. 4782,4782
• Citation: 51 Haw. 260,457 P.2d 505
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. William Leo GREEN, Jr., Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 505

457 P.2d 505

51 Haw. 260

STATE of Hawaii, Plaintiff-Appellee, v. William Leo GREEN, Jr., Defendant-Appellant.

No. 4782.

Supreme Court of Hawai'i.

July 15, 1969.

Syllabus by the Court

1. A reviewing court may not disturb the trial court's finding that an inculpatory statement is admissable unless the defendant demonstrates that there has been a clear abuse of discretion on the part of the trial judge.

2. If a defendant is made to understand prior to interrogation that he has the constitutional rights spelled out in Miranda, and he intentionally relinquishes or abandons these known rights, a waiver of those rights has been accomplished.

3. It is irrelevant to the determination whether there has been a knowing and intelligent waiver of Miranda rights that a defendant, being fully advised of those rights, chooses to respond to the interrogation without counsel because he lacks sufficient wisdom to recognize his need for assistance or the utility of a lawyer.

James Krueger, Honolulu (Stuart M. Cowan, Honolulu, on the brief, Greenstein & Cowan, Honolulu, of counsel) for defendant-appellant.

Ernest Ito, Deputy Pros. Atty., City & County of Honolulu (Barry Chung, Pros. Atty., Honolulu, with him on the brief) for respondent.

Before RICHARDSON, C. J., MARUMOTO, ABE and LEVINSON, JJ., and FUKUSHIMA, Circuit Judge assigned by reason of vacancy.

LEVINSON, Justice.

The defendant-appellant was convicted of extortion in the first degree after a jury trial. During the evening on the day of his arrest, he was taken into an office, containing a telephone, where he was informed of his constitutional rights and was thereafter asked questions. The detective who interrogated the defendant testified that a prepared form describing those rights was read to the defendant and its contents explained to him in simple words, and that the form was shown to the defendant and read and signed by him. ¹ In response to questions, the defendant made an inclupatory statement which was later testified to by the interrogating detective at the trial.

The trial judge held a hearing outside the presence of the jury on the admissibility of the testimony of the detective relating the substance of the statement made by the defendant. The defendant, who had finished high school and had had some college experience testified that his rights were 'explained generally' and that such explanation was characterized by the interrogating detective as being 'routine.' He admitted an ability to read 'quite well' but testified that he had been rushed into reading and signing the form. Although he was evasive in response to questions as to what constitutional rights he purportedly was aware of at the time he signed the form, he did admit that he knew the negative indicator following the question 'Do you want an attorney now?' was on the paper when he signed it. He also admitted that he answered 'yes' to the question on the form inquiring whether he understood what the detective has told him of his constitutional rights. The defendant also testified, however, that prior to and during the interrogation he repeatedly requested the use of a telephone but that the requests were denied each time. He was allegedly told by the detective that only after the interrogation would he be permitted to use the telephone. The defendant testified that each time he made a request to use the telephone, his intention was to call his family so that counsel could be retained for him. This alleged continuing intent was apparently undisclosed because there was no evidence presented to show that the defendant ever informed any police officer of the purpose he had in mind when he made these alleged requests.

With respect to the use of a telephone, the detective testified that he told the defendant at the time of the constitutional warnings that he could use the telephone in the interrogation office to call an attorney or anyone else, but that the defendant never chose to do so. He further testified that the defendant had responded that he did not wish to consult with an attorney at that time but would retain an attorney after he was released.

In allowing the detective's testimony concerning the substance of the inculpatory statement, the trial judge found that the defendant knowingly and intelligently waived his constitutional right to have a lawyer present at the interview. He found that the 'right is not to use the telephone. The right is to have a lawyer present at the time he's being interrogated. And this is the right which he knowingly and intelligently waived.' The defendant objected to the detective's testimony on the ground that the alleged requests to use the telephone were the equivalent to an assertion of his right to counsel.

The defendant now asks this court to overturn the trial judge's finding of waiver and to hold that the alleged rejected requests to use the telephone be construed to be equivalent to the nullification of the admittedly signed waiver and an assertion of the right to counsel. The rationale behind this argument is that the right to counsel is meaningless unless it encompasses the right to use the telephone to contact an attorney. The defendant concludes, therefore, that the interrogation and the admissibility of any evidence adduced therefrom was constitutionally impermissible under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) because he was denied his right to the presence of counsel prior to and during the interrogation.

We affirm the conviction.

The now-famous case of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966) requires certain procedural safeguards to be employed in the absence of any other fully effective means to inform an accused of his constitutional right to silence and to assure a continuous opportunity to exercise it. Prior to any custodial interrogation, the person must be warned that he has the right to remain silent, that any statement he does make may be used as evidence against him, and that he has the right to consult with a lawyer, either retained or appointed, and to have the lawyer with him during the interrogation. 384 U.S. at 444, 471, 86 S.Ct. 1602.

However, Miranda recognizes that the defendant 'may waive effectuation of these rights, provided the waiver is made voluntaily, knowingly and intelligently.' 384 U.S. at 444, 86 S.Ct. at 1612. In connection with proving a waiver, the Court warned, at p. 475,86 S.Ct. at p. 1628:

* * * (A) heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel * * *.

An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver * * *.

'Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandably rejected the offer. Anything less is not waiver.' (quoting Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962))

The trial judge has a duty to determine the admissibility of an inculpatory statement out of the presence of the jury and prior to the jury's exposure to such evidence. See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); HRS § 621-26. In order to effectuate this duty, the trial judge is vested with wide discretion to determine the credibility of the witnesses and to weigh the evidence in order to ascertain whether the prerequisites to admissibility are present. In this case the Court has to decide whether the required warnings were given and whether a valid waiver followed. Where the evidence is conflicting, with one version of the facts supporting admissibility and the other not supporting admissibility, the reviewing court may not disturb the finding of admissibility unless the defendant demonstrates that there has been a clear abuse of discretion on the part of the trial judge in the determination of admissibility. Miller v. State, 251 Md. 362, 247 A.2d 530, 540 (1968).

In this case, there has been no showing of such an abuse of discretion. The detective's version of what occurred at the interrogation corroborated by the signed waiver is sufficient, if believed, to sustain the heavy burden ² thrust onto the prosecution by Miranda to show a waiver of the defendant's right to counsel prior to any questioning and during the interrogation. The detective testified that he had performed his duties under Miranda and that the defendant stated his intention to retain an attorney after his release. An uncontradicted signed waiver was introduced into evidence to corroborate this testimony.

The waiver of the right to counsel is not made any less effective or any less 'knowing,' 'voluntary' or 'intelligent' because of the fact that the defendant indicated his intention to retain counsel after his release. If a defendant is made to understand prior to interrogation that he has the rights spelled out in Miranda, and he intentionally relinquishes or abandons these known rights, the waiver has been accomplished. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82...