State v. Robtoy

• Decision Date: 10 November 1982
• Docket Number: No. 46328-0,46328-0
• Citation: 653 P.2d 284,98 Wn.2d 30
• Parties: STATE of Washington, Respondent, v. Michael G. ROBTOY, a/k/a Bryars, Appellant.
• Court: Washington Supreme Court

Page 30

98 Wn.2d 30

653 P.2d 284

STATE of Washington, Respondent, v. Michael G. ROBTOY, a/k/a Bryars, Appellant.

No. 46328-0.

Supreme Court of Washington En Banc.

Nov. 10, 1982.

David Middaugh, Seattle, Gordon E. Reynolds, Bremerton, for appellant.

C. Danny Clem, Kitsap County Prosecutor, Kenneth G. Bell, Deputy Pros. Atty., Port Orchard, for respondent.

WILLIAM H. WILLIAMS, Justice.

Appellant Michael Robtoy seeks review of his aggravated first degree murder conviction. He contends the conviction should be reversed because the trial court erroneously admitted: (1) his confession to the crime charged; and (2) evidence of prior criminal conduct. Additionally, appellant requests this court's permission to withdraw his "not guilty" plea so that he may plead again and thereby avoid the sentence of life imprisonment without possibility of parole. For the reasons set forth below, we affirm appellant's conviction and sentence.

The facts are as follows:

Michael Robtoy was arrested on February 5, 1979, near Umatilla, Oregon, on a charge of being an escapee from a Washington State correctional facility. At the time of his arrest, Robtoy was advised of his constitutional rights in accordance with the United States Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966). On February 7, 1979, Detective Jack Dean of the Kitsap County Sheriff's Office and Trooper Rusty Simpson of the Oregon State Police went to interview Robtoy at the Umatilla County Jail. Detective Dean again advised Robtoy of his constitutional rights from a form supplied by Trooper Simpson. Robtoy initialed each right and signed a waiver of those rights in the presence of Dean and Simpson.

Detective Dean then began taking a statement from Robtoy whereby Dean would type a question, read it to Robtoy, have Robtoy give an oral answer, and then Dean would type the answer below the question. At the completion of each page, Robtoy read the answers and initialed his approval at the bottom of each page. At the bottom of page three of the statement, the discussion turned to David King, whose murder Detective Dean was investigating. Dean asked Robtoy if he could think of anything important regarding King's death, and Robtoy answered negatively. In response to a question asked by Dean, Robtoy stated that King had made no suggestion to him that they engage in "sexual activities". He also said that he had none of King's personal property.

Detective Dean testified at the pretrial omnibus hearing that he believed Robtoy had been untruthful with him to that point, but he felt Robtoy wanted to speak with someone about the incident. Dean and Robtoy then had a conversation that was not recorded in any way and to which each testified differently.

Dean testified that he told Robtoy the questions would get tougher from that point onward. He talked with Robtoy in an apparent attempt to convince Robtoy that he understood him and that they were "communicating". Robtoy said he was tired of running and needed help. Dean told Robtoy whatever he said "might result in death" (2 Report of Proceedings, at 200), and Robtoy then said, more to himself than anyone else: "Maybe I should call my attorney." After a short pause, Dean said: "Mike, if you say you want your attorney, this conversation ends right here". 2 Report of Proceedings, at 201. Robtoy then acknowledged his understanding of the above statement.

Detective Dean testified Robtoy had trouble starting to talk, so Dean told Robtoy that he would start typing questions and that "if we arrived at a point where he didn't want to answer any questions, he didn't want to say anything more or he wanted his attorney, to say so". 2 Report of Proceedings, at 202. Robtoy agreed to the arrangement. He asked neither Detective Dean nor Trooper Simpson for an attorney. Eventually, Dean and Robtoy continued the question and answer format described above.

Robtoy's testimony was different in that he recalled asking for an attorney unequivocally: "You're getting in over my head, and I want to see an attorney." 2 Report of Proceedings, at 369. He stated his belief that Dean had "badgered" him into confessing and alleged that Dean made promises to him of referral to the Western State mental hospital.

Robtoy admitted that he was with David King when he died. After he had sexual relations with King, King tried to convince Robtoy the best thing to do was to call the police and turn himself in. King knew Robtoy was on furlough from the Clearwater Correction Center and that he had failed to return on time. Robtoy told Detective Dean that he "just panicked and started choking him." State's Exhibit 65, at 4. Robtoy began choking King with his arm, but when his arm got sore he wrapped an electrical cord from a clock radio around King's neck and continued strangling him. He later took King's radio, a hat, two shirts, a pair of pants, a suitcase, and King's jeep and drove away.

When asked why he was telling the truth, Robtoy replied: "I am hoping for maybe getting some help. It makes a person feel better. Maybe now I can get some help." In answer to the question why he was talking to Detective Dean instead of an attorney, Robtoy said: "What could he do for me, there is nothing that he could do for me." State's Exhibit 65, at 5.

At the conclusion of the King murder statement, Detective Dean went on to question Robtoy about the death of Ruth Pitts in Gig Harbor. Robtoy explained that he met Pitts at a bar where they drank together until he accompanied Pitts to her home. Robtoy said they had sex, began to quarrel, and he began choking her with his hands until he jerked her neck and heard a snap. (Ruth Pitts was later found strangled with a T-shirt tied around her neck.) Robtoy was unsure about what occurred next, but he did recall taking some beer bottles from a closet to return for the deposit money. He also found a money order in Ruth Pitts' jacket pocket and cashed it at the Bremerton post office.

Robtoy waived extradition and was transported back to Kitsap County by Detective Dean. On February 9, 1979, the Kitsap County Prosecutor charged Robtoy with premeditated murder in the first degree for King's death. On February 26, 1979, the prosecutor filed a notice of intention to seek the death penalty and asserted, as an aggravating circumstance, that Robtoy had escaped from or was on unauthorized leave from a state correctional institution at the time of the killing. See former RCW 9A.32.045(1)(b).

Prior to trial, the trial court ruled Robtoy's confession could be introduced as evidence because his statements concerning an attorney were equivocal, and because there had been a valid waiver prior to the voluntary confession. The court found that on at least 14 previous occasions, Robtoy had been advised of his Miranda rights. On some occasions he waived those rights, but on other occasions he exercised his right to terminate further questioning. A pretrial hearing also was held concerning admissibility of the Ruth Pitts homicide in the State's case-in-chief. The trial court ruled the evidence would be admissible to show motive and/or premeditation, and found the probative value outweighed the prejudicial effect of the evidence. The court gave a cautionary instruction that the Pitts evidence could be considered only for the limited purpose of showing premeditation and motive.

On June 1, 1979, a jury convicted appellant Michael Robtoy of the aggravated first degree murder of David King. On June 4, 1979, the jury recommended the death penalty after a sentencing hearing pursuant to former RCW 10.94.020. An automatic appeal to this court followed whereby Robtoy was made one of the appellants in the consolidated death penalty appeal in State v. Frampton, 95 Wash.2d 469, 627 P.2d 922 (1981). Robtoy's death sentence was vacated in the Frampton case, and he now faces a sentence of life imprisonment without possibility of parole.

On May 12, 1981, Robtoy filed a motion in Kitsap County Superior Court seeking to withdraw his plea of not guilty and enter a plea of guilty to first degree murder. The trial court declined to rule on the motion without this court's permission. Thereafter, Robtoy filed a motion in this court requesting permission for the trial court to enter a decision on the plea withdrawal issue, pursuant to RAP 7.2(e). Robtoy sought an additional ruling that he could not be retried under the 1981 death penalty act if his conviction was later reversed. These motions were denied by this court on September 25, 1981. On February 5, 1982, we retained this case to answer the issues presented herein.

I ADMISSIBILITY OF ROBTOY'S CONFESSION

In Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), the United States Supreme Court determined that the Fifth and Fourteenth Amendments' prohibition against compelled self-incrimination required that custodial interrogation be preceded by advice to the accused that he has the right to remain silent and the right to the presence of an attorney. If the accused "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, at 473-74, 86 S.Ct. at 1627. If he requests counsel, "the interrogation must cease until an attorney is present." Miranda, at 474, 86 S.Ct. at 1627.

The Miranda decision recognizes that, under certain circumstances, the person being interrogated may validly waive the right to counsel. Miranda, at 475, 86 S.Ct. 1628. If the interrogation continues without the presence of an attorney, the state has the heavy burden of establishing the defendant's waiver of his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. Illinois, 378 U.S. 478, 490 n. 14, 84 S.Ct. 1758, 1765 n. 14, 12 L.Ed.2d 977 (1964). The state can satisfy this burden if it can...