State v. Moore, 1671--III

• Decision Date: 23 February 1977
• Docket Number: No. 1671--III,1671--III
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. James MOORE, Appellant.

Page 5

17 Wn.App. 5

560 P.2d 712

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

No. 1671--III.

Court of Appeals of Washington, Division 3.

Feb. 23, 1977.

Richard L. Cease, Spokane County Public Defender, Richard F. Ayres, Jr. (court appointed), Asst. Public Defender, Spokane, for appellant.

Donald C. Brockett, Pros. Atty., LeRoy C. Kinnie, Deputy Pros. Atty., Spokane, for respondent.

GREEN, Judge.

Defendant appeals from a conviction of murder in the first degree.

Error is assigned to (1) the admission of defendant's confession; and (2) the refusal to permit response to a question on recross-examination. We affirm.

About 11:30 p.m. on June 1, 1975, Spokane police were notified of a shooting on West Main Street. Upon arrival at the scene, the officers found the victim lying at the top of a stairway on the second floor of an apartment building. He had been shot in the abdomen.

Before the shooting, the caretaker was awakened by the victim who asked, 'You awake? Did you hear them shots?' and 'Well, will you come out?' The caretaker dressed himself, obtained a flashlight, and entered the hallway. He immediately heard a gunshot and saw a flash through the front-door window, but did not see the victim. A few seconds later, the victim came in the front door of the building and climbed the stairs holding his stomach. When he reached the second floor, he turned around and sat down. As the caretaker went out the front door to call the police, a shot was fired at him. He saw the defendant behind a post aiming a gun at him and two more shots were fired before the defendant disappeared.

The police arrived before the victim died. Two officers and a resident of the apartment building testified that upon inquiry as to who shot him, the victim answered, 'James Moore.' The victim then lapsed into unconsciousness and died.

Two other police officers proceeded to a residential area about 1 block from the shooting where defendant lived. As they approached defendant's cabin, he walked out of his door. The officers identified themselves, stopped him, checked him for weapons, and advised him of the shooting. The defendant was given his Miranda rights from a standard constitutional rights card which he then signed, acknowledging that it had been read to him, that he understood it, and was willing to answer questions. This occurred at 12:10 a.m. on June 2, 1975, as noted on the signed card. Although these officers did not know the victim's name, the defendant told them:

He knew a subject up at that building and that he'd been shot by a subject who lived up there a month or two before, and that if there was a subject by the name of Miller (victim's name) up there that got shot--you know--it could have been anybody, because Miller had quite a few enemies; and if something had happened up there, they would probably try to hang it on him, because most of the people in the building had been trying to hang something on him for quite awhile.

Defendant was taken to the City-County jail.

At 2:30 a.m. on June 2, defendant was interviewed by two other police officers. Prior to the interview, they read him his Miranda rights from a constitutional rights card which the defendant signed, acknowledging that he understood those rights, waived them and was willing to answer questions. The time was noted on the card, and the interview was conducted intermittently until about 4:30 a.m. Defendant denied any knowledge of the shooting, although he said that he knew the victim.

About 8:30 a.m., on June 3, two detectives interviewed the defendant. Before the interview, Miranda rights were read to defendant from a constitutional rights card which defendant signed, acknowledging that he understood those rights, waived them and was willing to answer questions. At this time, he admitted shooting the victim. Thereafter, defendant was reinterviewed and his confession tape recorded.

During the recording, Miranda rights were again read to the defendant. Again, he acknowledged that he understood them, waived them and was willing to answer questions. At the outset, defendant said that he and the victim had been arguing for some time and that 3 months earlier the victim shot him in the back. He then related that about 5 p.m. on June 1, 1975, while he was walking by the victim's apartment building on his way to a store, the victim 'hollered at him and cussed him out and told him not to come around the place.' On his way back from the store, the victim was still 'popping off.' Defendant stated that later that night he returned to the victim's apartment building with an old Smith & Wesson revolver. The victim came down the steps and into the street with his hand in his pocket, cussing the defendant. At that point, defendant said, 'I shot him . . . one time.' After the shooting, defendant stated, he ran back to his cabin and threw the revolver and the ammunition into the Spokane River. This tape-recorded statement was admitted into evidence and played to the jury.

According to expert testimony, the .38 calibre bullet taken from the victim's body could have been fired from a Smith & Wesson revolver. The shot that killed the victim came from close range, approximately 1 foot. The jury returned a verdict of guilty of murder in the first degree.

First, defendant contends that the tape-recorded confession should have been suppressed because he was not afforded a preliminary appearance 'without unnecessary delay' under JCrR 2.03(a)(1). We disagree. This rule provides:

Any person arrested for any offense, including capital cases and other felonies and not released shall be taken without unnecessary delay before a judge. The term 'without unnecessary delay' means as soon as practically possible. In any event, delay beyond the close of business of the judicial day next following the day of arrest shall be deemed unnecessary. The court may, for good cause shown and recited in the order, enlarge the time prior to preliminary appearance.

The sanction for failure to provide a preliminary appearance is set forth in the provisions of JCrR 2.03(c)(1):

If a person arrested and not released is not afforded preliminary appearance within the time prescribed by section (a), including any enlargement, the court shall order such a person brought before the court forthwith, and in default thereof, the court shall order his immediate release, unless good cause to the contrary be shown.

It is clear that defendant received a preliminary appearance within the guidelines of this rule. He was arrested on June 2 (albeit at a very early hour) and was taken before the court for a preliminary appearance at 1:30 p.m. on June 3, I.e., before the close of business on the second judicial day following his arrest. In State v. Eastland, 77 Wash.2d 823, 824, 467 P.2d 300 (1970), the court, in applying a former rule containing similar language to a situation where a defendant was held for 30 days without a preliminary appearance, said:

As the appellant maintains, the arresting officer violated Criminal Rule for Justice Court 2.03(c)(3) and (d)(1), RCW vol. O, when he failed to bring the appellant before a judge as soon as was reasonably practical. However, the appellant's remedy for that failure was to demand that he be arraigned or released, and no demand was made. Having failed to demand his right, he cannot now obtain a dismissal unless he can show that the delay was oppressive, arbitrary, or prejudicial. (Citations omitted.)

There is no evidence in the record of the CrR 3.5 hearing or at trial establishing that the delay was oppressive, arbitrary or prejudicial, nor is there evidence that the tape-recorded confession was in any way induced by the delay.

The defendant contends that the McNabb-Mallory rule, McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943); Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), applicable to federal courts, should be applied to violations of JCrR 2.03. Under the McNabb-Mallory rule, the failure to provide a preliminary appearance promptly after arrest operates to suppress an otherwise voluntary and valid confession. This rule has been expressly rejected in this State as reiterated in State v. Hoffman, 64 Wash.2d 445, 450, 392 P.2d 237, 240 (1964):

(D)efendant, in effect, again urges upon us the adoption of a rule of exclusion akin to the 'McNabb rule' (McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943)). Although we do not and will not abide the practice of holding persons for unreasonable times without charge and arraignment, we have heretofore refrained from adopting the McNabb rule of exclusion. Instead, we have relied upon the ultimate test of 'voluntariness' in determining admissibility of confessions. State v. Winters, 39 Wash.2d 545, 236 P.2d 1038; State v. Self, 59 Wash.2d 62, 366 P.2d 193, cert. den. 370 U.S. 929, 82 S.Ct. 1569, 8 L.Ed.2d 508; State v. Keating, 61 Wash.2d 452, 378 P.2d 703; State v. Carpenter, 63 Wash.Dec.2d 577, 581, 388 P.2d 537.

It may well be that future developments, or a conviction that law enforcement agencies of the state are persistently indulging in undue and extensive delays between arrest and arraignment, may dictate a reconsideration of our position. Until that time, however, we adhere to our present approach. (Footnote omitted.)

See also, State v. Callas, 68 Wash.2d 542, 545, 413 P.2d 962 (1966). We are bound by these decisions.

It is obvious that the issues raised on this appeal and attendent expenses would have been eliminated had the defendant been afforded a preliminary appearance on June 2. However, in this State, timeliness of the preliminary appearance is not the sole test for determining the admissibility of a confession. Here, the trial court entered findings supported by substantial evidence after a full hearing, and concluded the confession was voluntary. The record shows that on four occasions immediately prior to...