State v. Pierce

• Decision Date: 25 September 1980
• Docket Number: No. 46704,46704
• Citation: 94 Wn.2d 345,618 P.2d 62
• Parties: STATE of Washington, Respondent, v. Robert Thomas PIERCE, Appellant.
• Court: Washington Supreme Court

Page 345

94 Wn.2d 345

618 P.2d 62

STATE of Washington, Respondent, v. Robert Thomas PIERCE, Appellant.

No. 46704.

Supreme Court of Washington, En Banc.

Sept. 25, 1980.

Steven Ashlock, Snohomish County Public Defender Ass'n, Everett, for appellant.

Russ Juckett, Pros. Atty. for Snohomish County, James B. Roche, Deputy Pros. Atty., Everett, for respondent.

BRACHTENBACH, Justice.

This case involves suppression of a defendant's written confession of a crime committed in Snohomish County. The trial court, after a CrR 3.5 hearing, suppressed that confession. Upon the State's motion the court granted a dismissal on the ground that the suppression order effectively terminated the State's case. The State appealed pursuant to RAP 2.2(b)(2); the Court of Appeals reversed and remanded for trial; Judge Ringold dissented on the basis that it was necessary to remand for further findings as to a voluntary waiver of the constitutional right to an attorney prior to or during interrogation under the facts in this case. State v. Pierce, 23 Wash.App. 664, 597 P.2d 1383 (1979). The defendant's petition for review was treated as a notice of appeal under the then applicable RAP 13.2(c).

We reach the same result as the opinion of Judge Ringold and remand for further consideration by the trial court pursuant to this opinion.

The main issue is whether a defendant under custodial arrest, who has asserted his right to counsel, can waive that right prior to consultation with counsel. Second, in this case, did the police improperly interrogate or coerce the defendant after his request for counsel.

The trial court entered findings of fact, part of which were based upon disputed evidence, and entered a conclusion of law. Neither party assigns error to the findings of fact.

From these findings and the record, it was established that the defendant was caught in the act of a daylight armed robbery of a jewelry store in Renton. The store proprietor had escaped out a back door and called the police. The defendant was scooping up jewelry when he saw a policeman at the front door. He went out the back door where he met an armed policeman. He was arrested, frisked, and advised of his constitutional rights. Defendant refused to answer any questions and stated that he wanted to talk to a lawyer or his lawyer.

During the booking process at the Renton police station, defendant refused to state his name, address or date of birth. He was booked as "John Doe." He was permitted to telephone a friend with a request that the friend obtain a lawyer for him.

Defendant was placed in a cell and about 3 hours later was taken to an interrogation room for questioning by two officers who had not taken part in any of the previous events and who had no knowledge of his request for an attorney. The record contains no evidence bearing on the question whether the defendant was subjected to any words or actions by the police, before he waived his rights to silence and presence of counsel, which would have the effect of inducing the defendant to make incriminating statements.

The defendant was read his rights and then signed a form which included the following:

Defendant then wrote and signed a five-page statement admitting in detail the commission of the armed robbery. His signature appears seven times on the explanation of rights, waiver and statement.

While it is not controlling factually, we note that at the later CrR 3.5 hearing, in Snohomish County, defendant admitted that he understood his rights, that he had received public defender representation in the past, and had been advised of his rights possibly 10 to 20 times on prior occasions.

After taking defendant's written statement about the Renton robbery, the police asked, in general terms, about defendant's other activities in Washington. Defendant volunteered that he had robbed a hospital pharmacy in Snohomish County. While the Renton police were aware of that robbery (it occurred about 3 weeks earlier), they had no suspicion that defendant was involved. The Renton police notified Snohomish County authorities of defendant's admission concerning the robbery in their county.

Subsequently, defendant was arraigned in the Renton District Court where he moved that he be permitted to represent himself. The motion was denied. The trial court found the record not clear as to whether a lawyer was then appointed to represent defendant on the King County robbery charge.

The day after arraignment in King County, two officers of the Snohomish County Sheriff's Department interrogated defendant regarding the hospital robbery. Again defendant was given a statement of his constitutional rights. He signed a form which included the following:

According to the exhibit, that interview lasted 11 minutes. Defendant not only signed a form admitting the hospital robbery, but initialed two changes in the three-sentence confession.

Factually, perhaps the most telling matter is defendant's own testimony as to the waiver of the right to counsel. At the CrR 3.5 hearing he was asked:

Q. Mr. Pierce, can you state why, after asserting that you wanted an attorney, that you signed those forms and gave them statements?

A. Well, actually, there's a couple of reasons for it, but basically I didn't really feel that it made a heck of a lot of difference. You know, I knew I was nailed dead back there. I knew certainly I was going to the penitentiary, and it's regular police procedure to try to clear up the cases if it doesn't really, you know-it would be a little different if I had a forgery beef and looking at a year or two in the penitentiary. But what I had, I knew I going for a long time, and to clear it up, get if off the record, you know.

The problem faced here commences with a sweeping statement in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), at page 474, 86 S.Ct. at page 1628:

If the individual states that he wants an attorney, the interrogation must cease until an attorney is present ... If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.

Subsequently, Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), made it clear that interrogation can be resumed at some point after the individual asserts his right to remain silent as long as the individual's "right to cut off questioning" was "scrupulously honored." Supra at 104, 96 S.Ct. at 326. The court found that the right was honored in Mosley where the interrogation immediately ceased, there was no effort to wear down resistance, the reinterrogation was by a different officer about a different crime, the reinterrogation began more than 2 hours later, and new warnings were given. But that case did not decide the question of whether an individual can be reinterrogated about the same crime after initially requesting the presence of an attorney. Mosley, supra at 101 n.7, 96 S.Ct. at 325 n.7.

The broad language of Miranda was thereafter repeated by Division Two of our Court of Appeals:

But it apparently remains the rule even after Michigan v. Mosley, supra, that a suspect who cuts off police questioning by requesting the presence of counsel, cannot constitutionally be questioned thereafter by the police until he obtains the advice of an attorney.

State v. Haynes, 16 Wash.App. 778, 786, 559 P.2d 583, 589 (1977). Yet the exception to the rule was recognized by the same division a few days earlier by this qualifying statement: "unless of course he chooses to voluntarily waive his prior demand for an attorney." State v. Boggs, 16 Wash.App. 682, 688, 559 P.2d 11, 16 (1977).

The trial court nonetheless concluded that even though the defendant had "knowingly and voluntarily waived counsel" during interrogation, the police violated the per se rule against subsequent interrogation as stated in Haynes.

The United States Supreme Court has not directly addressed the question whether an individual can validly waive the right to counsel during interrogation or thereafter once it has first been asserted. But such a waiver appears to be valid for three reasons. First, it would be inconsistent with our scheme of constitutional protection for individual liberty to conclude that an individual can be deprived of the right to change his mind and submit voluntarily to questioning. Second, in Rhode Island v. Innis, --- U.S. ----, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), in footnote 2, the Court indicated in dicta that an individual has the power to subsequently waive "his right under Miranda to be free from interrogation until counsel (is) present." Third, all other courts that have addressed this question have apparently reached the same conclusion. E.g., United States v. Rodriguez-Gastelum, 569 F.2d 482, 486 (9th Cir. 1978); United States v. Grant, 549 F.2d 942, 945-46 (4th Cir. 1977); United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976); United States v. Clark, 499 F.2d 802 (4th Cir. 1974); United States v. Hodge, 487 F.2d 945 (5th Cir. 1973); State v. Greene, 91 N.M. 207, 210, 572 P.2d 935 (1977); People v. Richards, 194 Colo. 83, 568 P.2d 1173 (1977); State v. Grange, 25 Ariz.App. 290, 294, 543 P.2d 128 (1975).

In this case the confusion arose over the nature of the per se rule announced in Miranda. Before Miranda, the Fifth Amendment was applied on a case-by-case basis to prohibit police tactics that compelled incriminating statements from defendants. In Miranda, the Court announced that because certain police practices were inherently coercive, they would be held to violate the Fifth Amendment whether or not the defendant was actually coerced in each case. Under Miranda, therefore, the focus is primarily on the police practices rather than the perceptions of the particular individual. See Miranda v. Arizona, 384 U.S. 436, 468-474, 86 S.Ct. 1602, 1624-1628, 16 L.Ed.2d 694 (1966). Certain police...