State v. Lanning

• Decision Date: 19 July 1971
• Docket Number: No. 984--41615--I,984--41615--I
• Citation: 5 Wn.App. 426,487 P.2d 785
• Parties: STATE of Washington, Respondent, v. James LANNING, Appellant.
• Court: Washington Court of Appeals

Page 426

5 Wn.App. 426

487 P.2d 785

STATE of Washington, Respondent, v. James LANNING, Appellant.

No. 984--41615--I.

Court of Appeals of Washington, Division 1, Panel Two.

July 19, 1971.

Rehearing Denied Oct. 20, 1971.

Review Denied Dec. 13, 1971.

Stephen E. Mansfield, William A. Stiles, Jr., Anacortes, court-appointed for appellant.

Earl F. Angevine, Skagit County Pros. Atty., Gilbert E. Mullen, Deputy Pros. Atty., Mount Vernon, for respondent.

SWANSON, Judge.

James Lanning was charged with the crime of murder in the first degree, in that he 'did * * * with a premeditated design to affect the death of Mary Chapin * * * stab, cut, and wound * * * Mary Chapin, of which said mortal wounds * * * Mary Chapin * * * languished and died on November 19, 1969.'

A Skagit County jury found Lanning guilty ¹ as charged, and he appeals.

At approximately 7:20 p.m. on November 19, 1969, three hunters discovered the body of Mary Chapin lying beside a mountain road in a remote portion of Skagit County, Washington. A 1956 Chevrolet automobile registered in defendant Lanning's name was found abandoned in the middle of the road some 25 feet from the victim's body. Mrs. Chapin's 2 1/2-year-old daughter was in the car, alive and unharmed. After issuance of an all points bulletin, and some 3 hours later, a state patrol officer observed the defendant walking along Highway 9, about 5 miles from the scene of the crime. Soon after this disclosure was radioed into the sheriff's office, Lanning was apprehended by two deputy sheriffs and a Washington State Patrol trooper, near his home while still walking along Highway 9. Both Deputy Sheriffs Smith and Fagan testified at the pretrial hearing, and later before the jury, that after stopping the appellant and placing him under arrest he was immediately advised of his constitutional rights and given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Thereafter, and during the same evening, the officers stated that the appellant received three additional declarations of his constitutional rights, and after each such recital made various exculpatory comments and explanations of his activities on November 19th. In addition to the oral warnings, a written waiver form containing a recitation of his constitutional rights was explained to Lanning and signed by him at the county jail on the 19th. On the following day, November 20th, and on November 25th, the warnings were again recited, and additional accounts and explanations made. None of Lanning's statements, however, amounted to a confession. They were explanations of his conduct and activities on the day in question, and even though conflicting were designed or calculated to demonstrate his innocence. Nevertheless, the statements, whether intended to be exculpatory or in fact inculpatory because proven false, were custodial statements, and their admissibility is dependent upon their voluntariness. State v. Woods, 3 Wash.App. 691, 477 P.2d 182 (1970). The trial judge determined the statements to be admissible at a carefully conducted pretrial CrR 101.20W hearing, ² and appellant's statements were introduced into evidence at the trial following.

Appellant directs his first and principal assignment of error to the admision into evidence of these various statements he made to the sheriff's deputies. He argues this claim of error on two relatively narrow grounds: First, he attacks the finding reached by the trial court that he was properly informed of his constitutional rights as defined in Miranda, or, more specifically, he questions whether he was adequately informed of his right to a lawyer prior to any questioning, and that one would be appointed for him at public expense if he was unable to afford one, prior to answering any questions. Secondly, appellant asserts that the state failed to discharge the burden placed upon it by Miranda of showing that he knowingly and intelligently waived his privilege of immunity from self-incrimination.

The first ground of appellant's argument is directed to the sufficiency of the warnings given, not that warnings were not in fact given, nor that the exculpatory statements were not made. Such challenge flies directly in the face of the trial court's explicit finding entered following the CrR 101.20W hearing. We said, in State v. Cashaw, 4 Wash.App. 243, at 247, 480 P.2d 528, at 531 (1971):

In determining whether any part of the Miranda rule has been complied with, we must look to the trial court's findings to determine what occurred.

In looking at the court's findings on this question we note this language:

and that immediately upon his (Lanning's) being stopped and placed under arrest Deputy Smith advised the defendant accurately on his constitutional rights and administered the Miranda warnings; * * * That he had the right to have an attorney with him at all times and at the time of making any such statement, and in the event that he did not have sufficient funds with which to hire an attorney one would be furnished to him before any statement was taken from him.

Finding 3. (Italics ours.) It addition, the trial court's findings recite that Lanning was advised of his rights in substantially the same language, prior to any questioning, on each of the five subsequent occasions statements were made. It should be noted that appellant argued to the trial court, and argues to us, that the written waiver form, exhibit 1, so marked in the CrR 101.20W hearing and marked exhibit 33 at the trial, which the appellant actually signed, was incomplete because it states in part:

You have the right to talk to a lawyer for advise before we ask you any questions, and to have him with you during the questioning. You have this same right to the advise and presence of a lawyer, even if you cannot afford to hire one. We cannot ourselves furnish a lawyer, but one will be appointed for you, if you wish, when you go to court. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop answering at any time until you talk to a lawyer.

The trial judge considered this to be an incomplete statement of the Miranda warnings but disposed of the question raised by pointing out in his oral opinion:

but he had been previously advised three times before completely of his Miranda rights, of his constitutional rights.

The trial court then correctly concluded that any technical deficiency in the written waiver form did not vitiate and render worthless the prior warnings he found to be couched in direct and unequivocal language. Further, Chief Deputy Frazier testified at the pretrial CrR 101.20W hearing ³ that he supplemented the written statement by orally restating in full detail the Miranda rights.

Because of the basic constitutional privilege involved, and pursuant to the mandate of State v. Hoffman, 64 Wash.2d 445, 392 [487 P.2d 788] P.2d 237 (1964), and subsequent cases, we have independently reviewed and carefully examined the record, as is our duty. Such review reveals that on all but one of the six separate occasions when the warnings were given, ⁴ the testimony of the officer's recital of constitutional rights was corroborated by at least one other officer. ⁵

The court chose to disbelieve Lanning when he said he did not remember hearing any recital of constitutional rights, and, particularly, the right to an attorney. When the testimony of witnesses differs, as is the case here, the credibility question is a matter for the trial court's determination. As stated in Cashaw, 4 Wash.App. at 247, 480 P.2d at 531:

No legislation requires that a trial court accept the testimony of a witness regardless of whether such testimony is believed. Accordingly, whether a defendant waives his constitutional rights must be determined on the basis of testimony accepted as correct by the trial court. (Citations omitted.)

Appellant argues that State v. Davis, 73 Wash.2d 271, 438 P.2d 185 (1968); State v. Tetzlaff, 75 Wash.2d 649, 453 P.2d 638 (1969); In re Forest v. State, 76 Wash.2d 84, 455 P.2d 368 (1969); State v. Creach,77 Wash.2d 194, 461 P.2d 329 (1969); and State v. Erho, 77 Wash.2d 553, 463 P.2d 779 (1970), are controlling and compel a reversal. Appellant's confidence in the five cases referred to is misplaced. In Davis, the court noted that even though an undersheriff was present during the time the police captain informed the defendant of his constitutional rights, the state failed to call the undersheriff as a witness to contradict the defendant's denial that his constitutional rights had been explained to him. The court made it clear in Davis that the state must bear the burden of establishing the circumstances under which the interrogation takes place. This is because the state has the only means of making available corroborated evidence of warnings given during interrogation. In the case at bar, however, all the officers present at the times appellant's rights were explained to him testified fully with no substantial conflict in their testimony. In neither Tetzlaff, In re Forest, or Creach was the defendant specifically advised that he had the right to an attorney at the time of the interrogation, or prior to questioning. Such an incomplete explanation of his right to counsel was held to be inadequate. In Erho, the defendant was not advised that he had the right to an attorney in the event he could not afford one. This was a fatal omission in the advice required to be given. Here, the appellant was so advised. The trial court specifically found that the warnings given included the statement:

that he (Lanning) had the right to have an attorney with him at all times and at the time of making any such statement, * * *

Finding 3. Our examination of the record contains abundant and convincing evidence of a clear and positive nature supporting the trial court's findings upholding the...