State v. Huston
| Decision Date | 11 May 1967 |
| Docket Number | No. 38680,38680 |
| Citation | 71 Wn.2d 226,428 P.2d 547 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Leslie Allen HUSTON, Appellant. |
Robert D. McGoldrick, Spokane, for appellant.
George A. Kain, Pros. Atty., Spokane, Donald C. Brockett, Deputy Pros. Atty., for respondent.
*
On April 28, 1961, Mr. James A. Upchurch, owner and operator of the Park Lane Motel in Spokane, was relieved of some $250 by an armed robber.
On May 5, 1961, the defendant was arrested in El Paso, Texas, on a charge of armed robbery and was thereafter convicted and imprisoned on that charge. Upon his release from Texas custody, he was taken to Illinois to answer a charge pending there, and upon dismissal of the Illinois charge, was brought to Washington in early October of 1965 and brought to trial on November 15, 1965. He was convicted of the Spokane robbery and now appeals.
The defendant's first assignment of error is addressed to the court's admission of certain testimony of the Deputy Prosecuting Attorney, Mr. John Murray. On October 6, 1965, the defendant was taken to Mr. Murray's office for the purpose of interrogation. Prior to asking defendant any questions, Mr. Murray did advise the defendant of his right to remain silent, that anything he said could be used against him, and that he had a right to an appointed attorney. At that point, the defendant did request that an attorney be appointed for him. The defendant complains that the interrogation continued in violation of what he deems to be the limit of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). He asserts that having asked to have an attorney appointed that the deputy prosecuting attorney should have immediately ceased all further questioning.
The subject of the inquiry was two fold. Mr. Murray directed questions to the defendant concerning his presence in Spokane and other matters directly related to the occurrence in question, all of which the defendant refused to answer. However, defendant acknowledged as his two letters written to Mr. George Kain, the Prosecuting Attorney of Spokane County. These letters were written by the defendant while in prison in Texas. The defendant admitted that they were written voluntarily, and admitted that they were written with reference to this charge which was then pending. He does assert that he did not intend them to be used as confessions, but rather, he hoped by them to persuade Mr. Kain to dismiss the charge. In one written in May of 1964, he stated that he would gladly pay the money if he were able. In the one written in February of 1965, he stated that he had committed an unpardonable crime for which he was sorry.
During his conversation with Mr. Murray on October 6, he refused to discuss anything concerning his activities in Spokane until a lawyer was appointed, which was done that afternoon.
Before permitting the jury to hear the evidence, the trial judge made an independent determination pursuant to Rule of Pleading, Practice and Procedure 101.20W, RCW vol. 0, that the letters written to Mr. George Kain were voluntary and that the confirmatory statements made to Mr. Murray were likewise voluntary. No error is assigned to the factual findings of the trial judge or to the sufficiency of the evidence to support them. During the preliminary hearing the defendant Huston stated:
Q. Were the letters written voluntarily by you when in the Texas penitentiary?
A. They were.
Q. You weren't forced to write the letters in any way?
A. No.
Though the broad phrasing of Escobedo permits many inferences, its actual holding has been defined for us in Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). On page 733, 86 S.Ct. on page 1781, the court said:
'Apart from its broad implications, the precise holding of Escobedo was that statements elicited by the police during an interrogation may not be used against the accused at a criminal trial, '(where) the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the policy carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent * * *.'
The present case is not one of a man who, at the time of the inquiry in question, was unaware of his absolute constitutional right to remain silent. It is undisputed that he had been so advised and he proceeded to demonstrate his understanding of that advice by speaking only to those things which he chose to speak to and by refusing to talk about other aspects of the charge.
Nor was he denied access to counsel within the context of the facts in Escobedo. In that case Escobedo had counsel who was at the police station and who had asked to see him, but the police actively kept them separate. Here counsel was appointed the same day that he was requested. The facts are not parallel and the thought that a simple indication of a desire for the assistance of appointed counsel bars the admissibility of all further immediate conversation, and must be equated with a denial of counsel was then so novel that the trial judge and the deputy prosecuting attorney were not bound to deduce it from the decisions then extant. 1
One can hardly imagine more clearly volunteered statements than those contained in the letters and put in evidence through the testimony of Murray.
It is to be noted that when Mr. Murray did take the stand no further objection was recorded by the defendant, nor was any further motion made directed to the exclusion of his testimony. We find no error in the trial court's admission of the testimony by Murray.
The defendant assigns error to the failure of the court to dismiss the original information which showed on its face that the offense charged had been committed more than 3 years prior to the date upon which the information was filed and which contained no allegation concerning defendant's absence from the state. 2 The amended information contained the necessary allegations concerning that absence and these allegations were based, at least in part, on the statements received by Mr. Murray on October 6, 1965. Since we have concluded that the evidence of these conversations was admissible, there was no error in permitting the amendment. Beyond that, any suggestion that defendant's statements were the only proof available to the state concerning defendant's whereabouts during the critical period is without merit in view of the fact that Spokane County had its hold on the defendant while he was in prison in Texas.
At the time of conducting an inquiry into the admissibility of the statements to Mr. Murray, the court also conducted an inquiry into the admissibility of the testimony of George Althoff, a detective for the city of El Paso, Texas. It was to him that the defendant made certain incriminating oral statements concerning his activities in Spokane. These statements were made while he was in custody in El Paso. On conflicting evidence the court made findings that the statements made to Mr. Althoff were voluntary. No clear assignment of error is directed either to the court's findings or to the subsequent admission of the testimony. However, some of the arguments made in support of assignments of error hereafter to be noted seem to be based upon the assumption that the statements to Mr. Althoff did not meet certain standards set forth in Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963), and thus were inadmissible as a matter of law.
While we are not required to search the record for errors not clearly assigned, the review of a case where a confession is involved presents the reviewing authority with a delicate problem. The trial court has already made a factual determination based upon conflicting evidence. Normally, it is not the proper function of the appellate court to review such findings when supported by credible evidence. State v. Nesrallah, 66 Wash.2d 248, 401 P.2d 968 (1965).
Yet, we must not blindly accept such findings, particularly where constitutional rights are involved. In State v. Hoffman, 64 Wash.2d 445, 392 P.2d 237 (1964), we said:
(A)lthough we will and do attach significant weight to findings of fact upon disputed issues arising under Rule 101.20W, supra, we cannot blindly and conclusively accept such as indisputably establishing the pertinent facts. It is our duty and obligation, where basic constitutional rights are involved, to carefully review the record brought before us and determine therefrom whether the bounds of due process requirements have been exceeded. Haynes v. State of Washington, supra; State v. Rutherford, 63 Wash.2d 949, 389 P.2d 895. We are mindful, in this respect, that it is not our function to re-evaluate the credibility of the witnesses testifying. State v. Reed, supra (56 Wash.2d 668, 354 P.2d 935 (1960)). Our prime concern is that it be convincingly evident from the record that constitutional privileges have not been abused. Strained findings of fact, predicated upon translucent or sophisticated evidence, cannot stand.
An examination of the present record reveals that, although the defendant does not contend that he was physically abused or that he was subject to fear for his person induced by threats, he does contend that he was not advised of his right to counsel or of his right to remain silent or that any statements which he might make could be used against him, or even of the fact that he was under arrest, and he also does complain that he was given certain promises of immunity, that he was influenced by lack of sleep, overlong questioning and the refusal to permit a telephone call.
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