State v. Robbins

• Decision Date: 15 March 1976
• Docket Number: No. 3635--I,3635--I
• Citation: 547 P.2d 288,15 Wn.App. 108
• Parties: STATE of Washington, Respondent, v. Janice Wear ROBBINS, Appellant.
• Court: Washington Court of Appeals

Page 108

15 Wn.App. 108

547 P.2d 288

STATE of Washington, Respondent, v. Janice Wear ROBBINS, Appellant.

No. 3635--I.

Court of Appeals of Washington, Division 1.

March 15, 1976.

Rehearing Denied June 30, 1976.

Mullen & Angevine, Earl F. Angevine, Mount Vernon, for appellant.

Patrick R. McMullen, Skagit County Pros. Atty., Wm. H. Nielsen, Larry E. Moller, Dennis J. DeFelice, Mount Vernon, for respondent.

FARRIS, Judge.

Janice Wear Robbins was charged with and convicted of violating the Uniform Controlled Substances Act. She appeals.

On October 17, 197, Robbins presented a prescription for percodan to a pharmacist who advised her that it had been forged. She then left the store. The pharmacist turned the prescription over to the police and Robbins was arrested on Friday, October 18, 1974. She was fully advised of her Miranda rights both at the time of her arrest and later at the police station where she was taken to be photographed. While she was at the police station, she signed a form acknowledging and waiving her Miranda rights but refused to make a statement. She was then taken to the county jail where she remained throughout the weekend. On Monday, October 21st she was brought back to the police station prior to being taken before a district court judge for arraignment. She was again advised of her rights and she again signed an acknowledgement and waiver form. After being interrogated by a police officer, she wrote and signed a statement describing her role in regard to the forged prescription and made certain oral statements. She was subsequently charged with uttering a forged prescription for a controlled substance in violation of RCW 69.50.403(a) (5). Her written and oral statements were admitted into evidence at the trial; the jury returned a verdict of guilty as charged.

Error is assigned to the court's finding at the CrR 3.5 hearing that she voluntarily, knowingly, and intelligently waived her Miranda rights prior to making the statements. Robbins argues that the written waiver which she signed on October 21st is invalid and the statements were therefore inadmissible because the waiver was obtained: (1) after she had previously indicated that she did not wish to make a statement, (2) after she had been incarcerated for over 2 days, and (3) as the result of cajolery.

Robbins' argument on the first point is based upon the following language from Miranda:

If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.

(Footnote omitted.) Miranda v. Arizona, 384 U.S. 436, 473--74, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694 (1966). The Supreme Court has recently considered this passage and held that it cannot

sensibly be read to create a Per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent.

(Footnote omitted.) Michigan v. Mosley, 423 U.S. 96, 102, 96 S.Ct. 321, 326, 46 L.Ed.2d 313, 44 U.S.L.W. 4015, 4017 (1975). We do not ignore the factual differences between Mosley and the instant case: there the questioning was done by two different law enforcement officers whereas here the same officer was involved in each attempt at interrogation, there the questioning occurred on the same day whereas here it occurred on a Friday and the following Monday, and there the questioning dealt with two separate crimes whereas here the questioning dealt with the same crime. We find that these factual distinctions are not determinative. The Mosley court held that

the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his 'right to cut off questioning' was 'scrupulously honored.'

(Footnote omitted.) Michigan v. Mosley, supra, at 103, 96 S.Ct. at 326, 44 U.S.L.W. at 4018. The Friday questioning session was immediately halted when Robbins indicated that she did not wish to make a statement. On Monday, she was again advised of her rights before questioning began. Nothing in the record even suggests that the questioning sessions held on Friday and Monday constituted a situation in which Robbins was denied her right to remain silent because the police refused to take 'no' for an answer. We find no error in the procedure used. See Michigan v. Mosley, supra, at 104, 96 S.Ct. 321, 44 U.S.L.W. at 4018.

Robbins' argument that the waiver is invalid because it was obtained after she had been incarcerated for over 2 days is based upon the following language from Miranda:

Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights.

Miranda v. Arizona, supra, 384 U.S. at 476, 86 S.Ct. at 1629. We reject the argument. The record reveals no evidence that Robbins was held incommunicado or coerced in any other manner during her weekend stay at the county jail.

Robbins also that she was cajoled into waiving her rights as a result of being told by the interrogating officer that: (1) if she cooperated she would not do over 30 to 60 days in the county jail, (2) the police had proof that a male friend of hers had actually forged the prescription and they were merely waiting for a warrant to pick up the friend, and (3) he would check the statement with her attorney and if it was not all right, she could tear it up. While Robbins so testified at the CrR 3.5 hearing, the record reflects that the interrogating officer denied each of these allegations. Robbins recognizes that the court resolved the factual dispute by believing the officer and rejecting her assertions. However, she contends that where, as here, an individual is interrogated by a police officer under circumstances where independent corroborating evidence such as audio or video tapes could easily have been obtained, the failure to obtain and produce such evidence requires that the waiver of rights be declared invalid. She relies upon State v. Davis, 73 Wash.2d 271, 288, 438 P.2d 185, 195 (1968):

Considering the facts as presented in the case at bar, we cannot hold that the prosecution has met the burden of proving the validity of Belknap's alleged waiver as required by the holding in Miranda: (1) the admission was made while the defendant was in police custody within the confines of the police station; (2) presumably the police had both the opportunity and the means readily available to establish substantial corroborating evidence; (3) the only evidence presented by the prosecution consisted of the testimony of one interrogating officer; (4) the officer's testimony was neither corroborated by other testimony nor supported by other independent evidence; (5) the officer's testimony was completely contradicted by the defendant; and (6) a second officer, who was the only other person present during the interrogation, was not called as a corroborating witness by the prosecution nor was his absence explained, and in the instant case this last element may be deemed determinative.

She misreads...