State v. Vining

• Decision Date: 26 May 1970
• Docket Number: No. 207,207
• Citation: 2 Wn.App. 802,472 P.2d 564
• Parties: , 53 A.L.R.3d 390 The STATE of Washington, Respondent, v. John Jerome VINING, also known as John Jerome Mikula, Appellant. (41278) II.
• Court: Washington Court of Appeals

Page 802

2 Wn.App. 802

472 P.2d 564, 53 A.L.R.3d 390

The STATE of Washington, Respondent, v. John Jerome VINING, also known as John Jerome Mikula, Appellant.

No. 207 (41278) II.

Court of Appeals of Washington, Division 2.

May 26, 1970.

J. W. McArdle, (appointed) of Palmer, Willis, McArdle & Meyer, Yakima, for appellant.

Lincoln Shropshire, Pros. Atty., Cameron K. Hopkins, Deputy Pros. Atty., Yakima, for respondent.

ARMSTRONG, Chief Judge.

Defendant John Jerome Vining appeals from a jury conviction of grand larceny. He was charged with appropriating to his own use, or the use of others, groceries of a value of $5,006.86 which were the property of his employer.

Defendant started work as a checker in Gerritsen's Village Market in Yakima on December 25, 1968. His employment was terminated on April 14, 1969 when his employer accused him of furnishing merchandise to a customer without charge and a series of similar instances.

During this period of time the store's bookkeeper noticed that sales receipts were considerably below the store's usual sales volume. On April 13, 1969 a fellow employee was directed by the store manager to watch defendant who was working as a grocery checker. The employee testified that defendant did not charge or collect for all of the groceries and merchandise sold to a certain customer. He stated that defendant rang up $39.05 on the register, collected $33 from the customer, and had the customer sign a register slip for the balance owing of $6.05. The observer further stated that he saw defendant slide several items across the check stand which were not rung up on the register. The observer took the groceries to the car and checked the prices of these items. He then cross checked items against the tape and confirmed that they were not charged. On the following day, this information was given to the store owner who calculated that the total bill should have been approximately $67.

The store owner asked the defendant to come into his office at the end of defendant's work day. In the presence of the store manager, the owner questioned the defendant at length. The owner testified that defendant admitted stealing groceries worth $1,841.38 and giving away groceries to various persons for whom he felt sorry. He stated that defendant was willing to admit responsibility for groceries valued at $2,500 and was willing to pay the owner $5,000 if the matter was not reported to the police.

The store owner also presented store accounting records and explained that they showed a loss of $5,006.86 during the time defendant was in their employment.

The store manager corroborated the owner's testimony. He further testified that defendant admitted taking $150 to $200 worth of groceries each week in amounts of $15 to $20. The testimony of the owner and the store manager as to the alleged admissions was controverted by defendant.

Investigating police officers testified as to confessions of defendant given them on April 16, 1969 at the Yakima Police Station. An information had been filed on April 15, 1969 and the defendant was asked to come to the police station on the following day. He arrived with his wife at about 9:30 a.m. on that day. He was not escorted by police. He gave three statements over a period of seven hours. The first statement was unsigned and exculpatory in nature. The second was written in defendant's own handwriting and made a general admission to taking groceries. The third was a detailed question and answer signed statement in which defendant admitted to specific acts of taking groceries for his own use and of giving groceries to customers.

The state was allowed to amend its information while presenting its case. The value of groceries taken was reduced from $5,006.86 to 'more than $75.00'.

Defendant makes three assignments of error in challenging the validity of his conviction. The issues raised thereby are whether the evidence supported a charge of grand larceny rather than separate charges of petit larceny; whether the state should have been permitted to amend the information, and also whether defendant's statements given to the police should have been admitted.

The third issue will be discussed first.

Defendant contends that the statements given to the police on April 16, 1969 should have been excluded from evidence and that the trial court committed prejudicial error in admitting them into evidence. Defendant argues that his statements were the result of custodial interrogation under a defective warning of constitutional rights required by the procedural safeguards set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defendant argues that the result is an involuntary confession which must be excluded.

We set forth below the format of the warning given the defendant:

The date is _ _. The time is _ _, Room _ _, Yakima Police Department. Present during this statement is _ _.

Q. What is your true name?

Q. Your address?

Q. Your age and date of birth?

Q. Do you understand that you have a right to remain silent?

Q. Do you understand that any statement that you may make will be used in Court against you at a later date?

Q. Do you understand that you have the constitutional right to have the advice of an attorney before making this statement?

Q. Do you understand that if you do not have the funds to hire an attorney the court will appoint an attorney for you free of charge to you?

Q. Do you waive these rights?

Q. Do you understand what the word 'waive' means?

Q. Is this statement voluntary on your part?

(Details and answer omitted. Italics ours.)

This is identical to the format found to be prejudicially defective in State v. Creach, 77 Wash.Dec.2d 194, 461 P.2d 329 (1969). The defect lies in the failure to advise defendant in plain and unequivocal terms that he had a right to have an attorney present during interrogation.

A concise statement of the applicable law is set forth in Creach at 199, 461 P.2d at 332:

In general, Miranda requires that, prior to custodial interrogation of an accused, he must be warned: (1) that he has the right to remain silent; (2) that any statement he does make can and will be used as evidence against him in a court of law; (3) that he has the right to consult with counsel before answering any questions; (4) that he has the right to have his counsel present during the interrogation; (5) and that if he cannot afford an attorney, one will be appointed for him without cost to him, prior to questioning, if he so desires.

The ultimate question for decision is always: Was the confession or statement voluntarily given? State v. Darst, 65 Wash.2d 808, 815, 399 P.2d 618 (1965). Miranda, however, indicates that an affirmative answer cannot be supported unless the five warnings listed are given to the accused prior to interrogation.

The state responds to this contention by arguing that defendant was not in custody when the statements were taken. The argument appears to be that since this was not custodial interrogation a Miranda warning need not have been given. The state points out that defendant appeared at the police station by his own means of transportation and at his own convenience, and argues that the fact that the questioning occurred at the station house is not per se determinative of custody.

We find no merit to this contention. In Creach the court quoted with approval from United States v. Gibson, 392 F.2d 373 (4th Cir. 1968). As a part of that quotation it adopted the following statement 77 Wash.Dec.2d at 197, 461 P.2d at 331:

'Custodial interrogation' certainly includes all station-house or police-car questioning initiated by the police, for there the 'potentiality for compulsion' is obvious.

The state's next contention is that even if Miranda warnings should have been given, defendant's statements are admissible. The state argues that in neither the confession hearing nor the trial...