State v. Vannoy, 6517-3-I

• Decision Date: 03 March 1980
• Docket Number: No. 6517-3-I,6517-3-I
• Citation: 610 P.2d 380,25 Wn.App. 464
• Parties: STATE of Washington, Respondent, v. Thomas H. VANNOY, Appellant. STATE of Washington, Respondent, v. Ronald Gene WILLIAMS, Appellant. STATE of Washington, Respondent, v. David Arlyn VANNOY, Appellant.
• Court: Washington Court of Appeals

Page 464

25 Wn.App. 464

610 P.2d 380

STATE of Washington, Respondent, v. Thomas H. VANNOY, Appellant.

STATE of Washington, Respondent, v. Ronald Gene WILLIAMS, Appellant.

STATE of Washington, Respondent, v. David Arlyn VANNOY, Appellant.

No. 6517-3-I.

Court of Appeals of Washington, Division 1.

March 3, 1980.

[610 P.2d 382] Anna Mari Sarkanen, Public Defender, App. Div., Seattle, for Thomas Vannoy.

Christopher J. Fox, Fox & Adams, Kirkland, for David Vannoy.

David C. Nordeen, Vancouver, for Williams.

Gordon S. Jones, Deputy Pros. Atty., Seattle, for respondent.

DORE, Judge.

Defendants David Vannoy and Ronald Williams appeal the denial of their motions to suppress written confessions. Defendant Thomas Vannoy appeals the trial court's refusal to grant him a separate trial.

ISSUES

1. Whether the confessions of David Vannoy and Ronald Williams were "voluntarily" given and satisfied the requirements of constitutional due process.

2. Whether the re-interrogation of defendants David Vannoy and Ronald Williams, which resulted in signed confessions, violated their constitutional rights under the Fifth and Sixth Amendments.

3. Whether the trial court erred by refusing to grant defendant Thomas Vannoy's motion for a separate trial.

FACTS

On February 21, 1978, at approximately 1:45 a. m., following a high speed chase, defendants David Vannoy, Ronald Williams, and Thomas Vannoy were arrested in connection with a service station robbery. A fourth companion, John Clark, was shot and killed by the station attendant during the course of the robbery. Thomas Vannoy was the driver of the automobile.

All three defendants were advised of their constitutional rights. However, at this time no questioning occurred. Defendant David Vannoy stated he would make no statement without an attorney. Defendant Williams also refused to answer any questions.

At about 5 a. m., Detective Reed met David Vannoy in his office and readvised him of his constitutional rights. Vannoy stated he understood each right and signed an explanation of rights form. Vannoy then signed a waiver of rights form. Subsequently at about 6:13 a. m., David Vannoy signed a written confession.

At about 6:55 a. m., Reed contacted defendant Williams and repeated the procedure he used with David Vannoy. Shortly thereafter Williams signed a written confession.

The trial court denied defendants Williams' and David Vannoy's motions to suppress their confessions pursuant to CrR 3.5. At the same hearing defendant Thomas Vannoy moved to separate his trial from the trial of the other co-defendants. The court denied Thomas Vannoy's motion on the condition that specific references in the confessions to Thomas Vannoy be deleted.

Defendants Williams and David Vannoy were convicted of robbery in the second degree; Thomas Vannoy was convicted of rendering criminal assistance in the second degree.

DISCUSSION

ISSUE 1 : The Law Enforcement Procedure Used to Obtain Written Confessions Did Not Violate Requirements of Due Process.

In order for a defendant's confession to be admitted into evidence, it must pass two tests of voluntariness. The first test is the due process test of voluntariness. The second concerns the voluntary waiver of Miranda rights, which will be discussed shortly.

Under due process considerations, a defendant's confession must be voluntary in order to be admitted into evidence. The test of voluntariness for due process purposes is " 'whether the behavior of the State's law enforcement officials was such as to overbear petitioner's will to resist and bring about confessions not freely self-determined a question to be answered with complete disregard of whether or not petitioner in fact spoke the truth.' " State v. Braun, 82 Wash.2d 157, 161-62, 509 P.2d 742, 745 (1973).

Defendants argue that their will to resist was overcome by the mental and physical coercion of the law enforcement officers. We disagree.

A trial court's determination that a confession was voluntary will be binding on an appellate court when there is substantial evidence in the record from which the trial court could find a preponderance of evidence to establish voluntariness. State v. Snook, 18 Wash.App. 339, 567 P.2d 687 (1977).

Defendant David Vannoy argues that the record reveals the following facts which prove his confession was coerced. He was in a state of shock resulting from a high speed chase and the death of his friend; he was sleepy; he is young and inexperienced. However, a clear reading of the record in the subject case indicates that the confession was voluntary. Vannoy testified that he knew he had the right to counsel and that he did not have to make a statement without counsel present. Detective Reed testified that Vannoy was in good mental and physical shape and that he was thinking clearly enough to give a rational and detailed description of the attempted robbery.

Defendant Williams also argues that coercive police conduct overcame his will to resist and bases his argument on the following facts. He was tired and sleepy, in shock, and was intoxicated. The record does not support such contentions. In fact, Williams himself testified that at the time of the questioning he was alert and sober. Williams also testified that he knew what it meant to remain silent and that he had the right to counsel.

We hold that there is substantial evidence in the record indicating that the defendants' confessions were voluntarily made in accordance with the standards of due process.

ISSUE 2 : The Re-interrogation of Defendants Did Not Violate Their Constitutional Rights under Miranda.

Defendant Williams argues that under law set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), it was not permissible for the State to renew its interrogation after he had exercised his right to remain silent.

This issue revolves around the second test of voluntariness derived from the Miranda decision. Miranda held that:

Once warnings have been given, the subsequent procedure is clear. 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. At this point he has shown that he intends to exercise (the) Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.

Miranda v. Arizona, supra, at 473-74, 86 S.Ct. at 1627-1628.

This test is a separate one from the due process test of voluntariness because the issue here is not whether the confession was voluntary, but rather whether an accused who has been informed of his rights thereafter knowingly and intelligently waived those rights before making a statement. State v. Davis, 73 Wash.2d 271, 284, 438 P.2d 185 (1968).

It is now the well settled law that a defendant can waive his right to remain silent during re-interrogation. The Supreme Court in Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), stated that under some circumstances, the police will be allowed to re-interrogate a defendant to determine if he changed his mind about making a statement. The court thereafter held that Miranda is not a per se proscription upon any subsequent questioning, but that

(T)he 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."

(Cited in State v. Robbins, 15 Wash.App. 108, 110, 547 P.2d 288, 291 (1976))

In the subject case the initial questioning of Williams was promptly halted when he said he did not want to make a statement. Approximately 4 hours later Detective Reed readvised Williams of his right to remain silent. A short time later, Williams waived his rights and signed a written confession. There is nothing in the record to indicate that the object of the second interrogation was to wear down the defendant and force him to change his mind. Thus, defendant Williams' Miranda rights were "scrupulously honored" and we find no error in the procedure used by the law enforcement officers.

Defendant David Vannoy also argues that the re-interrogation violated his Miranda rights, but grounds his assignment of error on his Sixth Amendment right to counsel, rather than his Fifth Amendment right to remain silent.

The applicable law, which has been construed by numerous courts, was set forth in Miranda v. Arizona, supra, 384 U.S. at 474-75, 86 S.Ct. at 1628:

If the individual (in custody) states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. 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.

If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.

This court recently held that Miranda does not require a per se rule prohibiting a defendant from waiving his right to counsel after initially requesting the assistance of counsel. Therefore, a defendant may, after asserting his right to counsel, waive that right if he does so knowingly and intelligently. State v. Pierce, 23 Wash.App. 664, 597 P.2d 1383 (1979); North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979).

In the subject case, defendant David Vannoy signed a waiver of rights form. The court in North Carolina...