State v. Thomas

• Decision Date: 28 July 1976
• Docket Number: No. 1737--II,1737--II
• Citation: 553 P.2d 1357,16 Wn.App. 1
• Parties: The STATE of Washington, Respondent, v. Thomas L. THOMAS, Appellant.
• Court: Washington Court of Appeals

Page 1

16 Wn.App. 1

553 P.2d 1357

The STATE of Washington, Respondent, v. Thomas L. THOMAS, Appellant.

No. 1737--II.

Court of Appeals of Washington, Division 2.

July 28, 1976.

Ronald D. Ness, Appointed, Bremerton, for appellant

John C. Merkel, Pros. Atty., Carmon Danny Clem, Chief Criminal Deputy Prosecutor for Kitsap County, Port Orchard, for respondent.

REED, Judge.

The defendant Thomas L. Thomas appeals from his convictions for second-degree burglary, grand larceny, and second-degree assault, and from habitual criminal finding resulting in the imposition of a life sentence. We affirm.

In September 1967, a delinquency petition was filed in Kitsap County Juvenile Court charging defendant, then 17 years of age, with taking a motor vehicle without permission of the owner, and grand larceny, both felonies. On September 8, 1967, after a hearing, the juvenile court declined January 13, 1973, defendant pled guilty to second-degree burglary, grand larceny, and second-degree perjury and received a sentence of 15 years on the burglary charge; sentencing was defected for a period of 5 years on his convictions of grand larceny and perjury. As a result of these convictions and defendant's involvement in other criminal activities, with which he was not charged, the Kitsap County prosecuting attorney warned him that any further violations of the law would subject him to habitual criminal charges.

jurisdiction and orally remanded defendant to superior court to be tried as an adult. No written order was entered in juvenile court. Defendant became 18 on September 19, and on December 26 an information charging the offenses was filed in Kitsap County Superior Court. Defendant thereafter pled guilty to the 'auto-theft' and the larceny charge was dismissed. Defendant was sentenced on February 14, 1968 to a term of 10 years. Throughout these proceedings defendant was represented by counsel.

At 10 a.m., July 31, 1974, defendant, who is Black, accompanied by a Black male wearing sunglasses and an Aussie-type hat, with folded brim, rented a distinctive Ford Econoline van, Washington license GP 5050, from Hertz Truck Rentals in Seattle. At 11:30 a.m. that day, such a van containing two Black males was observed in Tacoma by Dorilee Shobert, who later selected a picture of Robert Clewis as a possible driver of the van and identified his hat as being similar to that worn by the driver. About noon Marita Herzog observed such a van, with two Black subjects, at her service station in Purdy, and later selected photos of Clewis and defendant as possible driver and passenger. At about 1 p.m., Charles Buckingham of Port Orchard observed two Blacks in a Hertz rental van execute a U-turn on the Tacoma-Bremerton highway at a point 2 or 3 blocks from the Phillip E. Carr residence, located approximately 3 miles south of Port Orchard. The Carr residence is partially visible from the highway at that point.

At 1:15 p.m., Mr. Carr returned to his home and discovered a Hertz rental van in his driveway and two Black males running into his home. Mr. Carr approached the van and, seeing his TV set therein, started to a neighbor's home to phone police when he was set upon from behind, thrown to the ground, and struck near the eye with a fist. He could not identify his assailant, describing him only as being 'pretty fairsized' or 'rather big.' Mr. Carr managed to extricate himself and continued to the neighbors where he reported the burglary in progress, giving the van's license number as AGA 550 or AGD 550. Returning to his home, he noted miscellaneous household goods and clothing collected near the door as if ready for loading; that entry to the home had been gained through an upstairs window; and that a .22 pistol and some watches were missing. Found at the struggle site were several of Mr. Carr's business cards, his fountain pens and watch, and a pair of sunglasses similar to those worn by defendant's companion in Seattle.

August 1, 1974 the defendant and Clewis returned the van to Seattle where they were arrested by police to be held for Kitsap County officers. Clewis was wearing the distinctive Aussie-type hat, which several other witnesses identified as similar to that worn by the driver of the van on July 31. Investigation revealed only two such vans had been rented on July 31, one to the defendant and the other to a Caucasian. Inspection of the vehicle revealed its speedometer had been recently disconnected; defendant is a trained auto mechanic.

August 1, 1974, Detective Jack Dean of the Kitsap County Sheriff's office drove to Seattle to take the two men into custody. Dean had known defendant since age 14, had coached him on a boxing team, and had given him his Miranda rights once in connection with the 1968 offenses, and twice in connection with burglary arrests in 1973. Detective Dean informed defendant he was under arrest for burglary, and began to advise him of his constitutional rights. The detective managed to inform defendant he had a right to remain silent and anything he said could be used Q How did he interrupt you?

against him, when defendant interrupted him, saying he knew his rights. Dean persisted, however, testifying as follows:

A He just--you know--'come on, Man, meet me.' He wanted to tell me about the case, and I advised him that I had to do it by the book. And I then advised him he had the right to talk to an attorney before any interview and before making any statement. When I was doing that, he reminded me that I knew that he knew what his rights was, and it's kind of like--you know--let's not be silly. And so I stated to him, I said, 'Okay, Tommy. If it comes to court you have been advised of your rights. Is that right? And you understand.' And he said, 'Right.' So I said, 'Okay.'

Q Then what happened?

A Well, then he asked me what kind of case that they had on him over there, and I recalled that I explained to him what's happened, happened, he couldn't change it--you know--that I didn't want to talk about it. Let's talk about boxing or something like this.

Q Then what happened?

A He asked me--you know--several more questions about, you know, 'how can they prove I did it,' and I asked him--I asked him how he could become so stupid, or how could he become involved in such a stupid crime.

Defendant thereupon told Dean he had a heroin habit of $100 per day. Thereafter, the officer asked no further questions, telling defendant only that the police had been awaiting return of the rental truck and that he was under arrest for burglary; he did not mention the Carr residence. Later, while being transported in Dean's auto to Kitsap County, the defendant stated that Clewis was not involved in the crime and assured Clewis, in Dean's hearing, that he would give a statement clearing Clewis. The defendant asked if he could avoid imprisonment by cooperating and was told, 'No' by Detective Dean, who reminded him he had previously been threatened with habitual criminal proceedings. Defendant asked about drug programs and was told

before he ought to be talking about anything like that Defendant continued to question the officer about his chances for drug rehabilitation and treatment instead of prison if he cleared up the crimes. As the auto neared the Kitsap County courthouse the defendant asked it be stopped, telling Dean he would give a statement 'clearing that crime' and repeating to Clewis he would exonerate him. ¹ Defendant added he could recover the gun and TV, but that he wanted to talk to his attorney before giving the statement. Dean told him he did not want a statement and conversation ended.

that he should be thinking about getting the television set and the stolen gun back to the owner. And I asked him if that could be done. And he stated that he could do it if he decided to go that way.

August 2, Dean again spoke with defendant who declined to make any further statement until he consulted with an attorney. Defendant was then charged with second-degree burglary, grand larceny, and second-degree assault. September 20, 1974, a CrR 3.5 hearing was held on the admissibility of defendant's conversations with Officer Dean and the State presented evidence that:

(1) January 1968 Detective Dean gave defendant his Miranda rights in writing and defendant acknowledged in writing he understood his rights, desired to waive them and make a statement, which he did.

(2) March 16, 1970, Detective Jack Kvistad read defendant his rights from a Miranda card while defendant was under arrest for burglary.

(3) December 3, 1971, Detective Maves of the Bremerton Police Department gave defendant his rights on two separate occasions while interviewing him about an assault and robbery.

(4) December 24, 1971, Officer Johnson of the Bremerton Police Department read defendant his rights from a Miranda card prior to discussing an armed robbery.

(5) June 21, 1972, Detective Clifton of the Kitsap County Sheriff's office read defendant his rights in the presence of the prosecuting attorney who was questioning him about a number of crimes under investigation. As each right was read and at the conclusion, the defendant was asked if he understood, responding 'yeah' each time. In exchange for an agreement not to prosecute, the defendant then gave an oral statement. June 22, 1972 the same rights were given in writing, acknowledged in writing, and defendant signed a waiver and gave a written statement.

Defendant testified at the 'voluntariness' hearing he could not recall Officer Dean telling him anything other than he had the right to remain silent. Defendant acknowledged he had been arrested approximately 15 times, had been advised of his rights on numerous occasions, knew he could remain silent, knew that an attorney would be appointed by the court if he had no funds and that he could have demanded an attorney before talking to Officer Dean. Defendant did not challenge Officer Dean's version of the encounter except to deny he told Dean...