State v. Hilliard

• Citation: 89 Wn.2d 430,573 P.2d 22
• Decision Date: 29 December 1977
• Docket Number: No. 44744,44744
• Parties: The STATE of Washington, Respondent, v. Kermit George HILLIARD, Appellant.
• Court: United States State Supreme Court of Washington

Page 430

89 Wn.2d 430

573 P.2d 22

The STATE of Washington, Respondent, v. Kermit George HILLIARD, Appellant.

No. 44744.

Supreme Court of Washington, En Banc.

Dec. 29, 1977.

Smith, Kaplan, Withey, Ford & Theiler, Mary Alice Theiler, Seattle, for appellant.

Christopher T. Bayley, King County Pros. Atty., H. Duane Evans, Deputy Pros. Atty., Seattle, for respondent.

BRACHTENBACH, Associate Justice.

Defendant appeals a second degree assault conviction. Three issues are raised: (1) alleged lack of a Miranda warning; (2) alleged impermissible photographic identification procedure; (3) right to trial by impartial jury. We affirm.

The assault victim was a 17-year-old girl. Shortly after midnight, she had left her home and gone to a nearby telephone booth. While using the phone, she observed a car drive by two or three times. She recognized the driver as defendant Hilliard because she had met him on two prior occasions; she did not know his name.

Alarmed by the defendant's conduct, the victim decided to go home. On her way, she met the defendant who was now walking. He engaged her briefly in conversation. As the complainant started to enter her house, the defendant grabbed her. She screamed. The defendant stabbed her several times in the arm, then fled.

The police were called; the victim gave them a description of her assailant and the car he had been driving which was described as being a "tan station wagon, old." She described her assailant as "a Black male, late twenties, early thirties; approximately five foot nine or ten; light complected; beard and moustache; wearing a dark colored jacket and plaid hat, and possibly sunglasses."

A dog from the police canine unit was brought to the scene, and a track was attempted. The dog paid some attention to a white 1963 station wagon parked around the corner from complainant's home. Noting that the hood of the car was warm, an officer checked the license number which revealed that the car belonged to defendant Hilliard. Police records showed that Hilliard was a 32-year-old Black male with light skin complexion and measuring 5 feet 9 inches in height.

The officers waited in the area to see if the assailant returned. Approximately 30 minutes later, an individual was observed coming around the corner about a block from the car. This individual was wearing dark clothing, but was not wearing a coat, hat or sunglasses. The police questioned him; he identified himself as Kermit Hilliard; an officer asked him if he was aware that his car was in the area, where he was coming from and where he was going.

Defendant stated that he did not know that his car was in the area because he had loaned it to a friend. But he then turned in the direction of his vehicle and said, "That's my car." He also stated that he had just gotten off a bus and was on his way to visit a woman friend.

The officers testified that at that time they had not decided whether to arrest defendant; they were interested in his explanation for being in the area. However, the defendant was under such suspicion that he would not have been allowed to leave until he explained his presence.

The officers, with good reason, asked the defendant to supply the name and address or telephone number of his woman friend so that his story could be verified. He refused to supply that information, stating that the woman was married. The officers told defendant that they would discreetly check his story, and that if his story checked out he would be allowed to go. Defendant refused to supply the information. At this point, the officers decided to arrest him. He was placed under arrest for suspicion of assault, and informed of his Miranda rights.

In a pretrial hearing, defendant sought to suppress the statements made by him to the officers prior to being advised of his Miranda rights. The motion was denied and the officers testified. Defendant assigns as error that ruling.

In Miranda v. Arizona, 384 U.S. 436, at page 444, 86 S.Ct. 1602, at page 1612, 16 L.Ed.2d 694 (1966), the court held:

(T)he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

(Footnote omitted.) The procedural safeguards required before a custodial interrogation may take place are the now familiar Miranda warnings.

The court did state that some police activities were not to be affected by the holding. Our decision is not intended to hamper the traditional function of police officers in investigating crime. See Escobedo v. Illinois, 378 U.S. 478, 492, 84 S.Ct. 1758, 12 L.Ed.2d 977. When an individual is in custody on probable cause, the police may, of course, seek out evidence in the field to be used at trial against him. Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.

(Footnote omitted.) (Italics ours.) Miranda v. Arizona, supra at 477-78, 86 S.Ct. at 1629.

The defendant argues that the questioning of him constituted a "custodial interrogation." To get to this point, defendant argues that once an officer has probable cause to believe that the person confronted has committed a crime, the questioning is custodial, relying on State v. Creach, 77 Wash.2d 194, 461 P.2d 329 (1969).

In Creach, the police were told that an individual was displaying credit cards that appeared to be stolen. An officer went to a hotel and Mr. Creach was pointed out as being the individual using the cards. The officer asked the defendant for identification, and was given a driver's license and credit cards bearing the name "Black" and told by defendant that his name was Black. Defendant was then asked questions concerning his date of birth, height, etc., and his responses did not correspond with the information on the license. He was then requested to accompany the officers to the police station. At this point, no Miranda warnings had been given.

The issue was whether the officer could testify concerning the statements of defendant. We held the testimony to be admissible because the questioning of defendant was during the course of a routine investigation, not during a "custodial interrogation." In determining whether questioning in such encounters is custodial, we adopted the following rule:

It is difficult to set forth an all-inclusive rule covering every possible situation, but once an investigating officer has probable cause to believe that the person confronted has committed an offense, the officer cannot be expected to permit the suspect to leave his presence. At that point, interrogation becomes custodial, and the suspect must be warned of his rights.

(Citations omitted.) State v. Creach, supra at 198, 461 P.2d at 331.

We have stated that probable cause to arrest a person, without a warrant, arises when there is a reasonable ground for suspicion, supported by circumstances within the knowledge of the arresting officer to warrant a cautious person in believing that the accused was guilty of a crime. State v. Parker, 79 Wash.2d 326, 485 P.2d 60 (1971); State v. Todd, 78 Wash.2d 362, 474 P.2d 542 (1970).

Here, the victim had given the officers a general physical description of her assailant and his car. When the officers talked with defendant, they observed that, other than the fact that he was not wearing a coat and hat as described by the victim, he resembled the description given. Upon learning his name the officers knew that he owned the car located nearby. But neither the defendant nor the car totally matched the description given to the officers. The defendant told the officers that his car was being used by a friend. And, defendant presented the officers with a plausible reason for his presence in the area and how he got there.

Possessing that information, the officers had grounds for suspicion and rightfully saw the need for further inquiry. But we cannot say that at that point they must have concluded that the defendant committed an assault. In fact, the officers informed defendant that if his explanation for his presence could be verified, he would be allowed to leave. This is not, as suggested by the defendant, an incident where the officers had made a decision to make an arrest, but delayed doing so to avoid a Miranda warning.

The questioning of defendant was not a custodial interrogation. Mere suspicion, before the facts are reasonably developed, is not enough to turn the questioning into a custodial interrogation. See Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (per curiam). The court did not err in admitting the testimony of the officers.

The next issue relates to a photographic identification. Defendant's first contention is that his rights under the Sixth Amendment to the United States Constitution were violated because he was not afforded the presence of counsel at a post-arrest photographic identification. In State v. Nettles,81 Wash.2d 205, 500 P.2d 752 (1972), we adopted the predominant view that counsel is not required at such a proceeding. That decision is still correct.

Defendant next contends that it was error to admit both the in-court and photographic identification made by the victim. We disagree.

The facts important to the photographic identification issue are as follows. While in...