State v. Walden

• Decision Date: 21 July 1983
• Docket Number: No. 903,903
• Citation: 336 N.W.2d 629
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Glen WALDEN, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 629

336 N.W.2d 629

STATE of North Dakota, Plaintiff and Appellee, v. Glen WALDEN, Defendant and Appellant.

Crim. No. 903.

Supreme Court of North Dakota.

July 21, 1983.

Thomas H. Falck, Jr., Asst. State's Atty., Grand Forks, for plaintiff and appellee; submitted on brief.

Robert A. Alphson Law Office, Grand Forks, for defendant and appellant; argued by Robert A. Alphson, Grand Forks.

ERICKSTAD, Chief Justice.

Defendant/appellant, Glen Otto Walden, was charged with and ultimately adjudged guilty in a bench trial of attempted sexual imposition. Subsequent thereto, a judgment of conviction, dated September 23, 1982, was entered by the Grand Forks County Court of Increased Jurisdiction from which Walden now appeals. For the reasons hereinafter stated, we affirm.

The facts relevant to this appeal are not in dispute and thus can be briefly summarized. On February 15, 1982, a man wearing a yellow ski mask and faded dungarees entered the Valley Dairy convenience store where Donna Odom worked. Realizing that this unidentified man "had his pants down" and "his penis in his right hand," Mrs. Odom ordered him to leave. Notwithstanding Mrs. Odom's directive, the man in question advanced toward her. Mrs. Odom therefore picked up the telephone and dialed "911", the police emergency number. As Mrs. Odom was dialing this number, the man pushed her to the floor and pulled her face toward his penis. Simultaneous therewith, the police answered the telephone and Mrs. Odom told them that there was a "naked man in the Valley Dairy store." Upon realizing that the police had answered the telephone, the man retreated approximately three feet, masturbated until he ejaculated, and then left the store.

Shortly thereafter, Officer Gunderson arrested Walden for such incident and advised him of his rights in the following manner:

"The right to remain silent. Anything he said could and would be used against him in the Court of Law. And that he had the right to have an attorney present if he so wished, before giving a statement of any type."

After partially advising Walden of his rights pursuant to Miranda, the officer asked Walden "where he had disposed of the yellow ski mask." Upon receiving Walden's reply, the officer located the ski mask which was later introduced as evidence in Walden's trial. Thereafter, Walden was transported to the police station where he signed a written statement of his rights, an acknowledgment of waiver of rights, and a statement confessing that he had been the individual at the Valley Dairy store. This statement was likewise admitted as evidence against Walden at his trial.

On appeal, Walden raises three issues. The first and most crucial of which is:

Whether or not Walden's statement to Officer Gunderson with regard to where the yellow ski mask was located should have been suppressed by the trial court on the basis that Walden was not advised of his right to have an attorney appointed if he could not afford one.

The State concedes that Walden was not fully advised of his rights prior to his being interrogated by Officer Gunderson. The officer's undisputed testimony in this regard is as follows:

"Q Officer Gunderson, going back to the first time that you gave Mr. Walden his rights, were you able to initially complete giving him his rights?

"A No, I was not. Because after I was a little better than half-way through he interrupted me and said, 'I know my rights. You don't have to go any further.' Or something to that effect."

Miranda v. Arizona clearly delineates the procedural safeguards to be followed when an individual is subjected to custodial interrogation by a police officer:

"[U]nless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney either retained or appointed." Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1965).

These specific warnings, however, do not constitute a ritualistic formula to be administered inflexibly. Commonwealth v. Wilbur, 353 Mass. 376, 383, 231 N.E.2d 919, 923 (1967), cert. denied 390 U.S. 1010, 88 S.Ct 1260, 20 L.Ed.2d 161 (1968). Furthermore, the United States Supreme Court has held in Michigan v. Tucker that: "a failure to give interrogated suspects full Miranda warnings does not entitle the suspect to insist that statements made by him be excluded in every conceivable context." 417 U.S. 433, 451, 94 S.Ct. 2357, 2367, 41 L.Ed.2d 182 (1973).

In the case at bar, when Officer Gunderson attempted to advise Walden of his right to have an attorney appointed if he was indigent, Walden interrupted the officer and said: "I know my rights. You don't have to go any further." Where, as in this instance, the State has made a reasonable effort to inform the defendant of his rights in accordance with the dictates of Miranda and the defendant has refused to listen, the defendant has waived his right to be informed. State v. Thomas, 16 Wash.App. 1, 9-10, 553 P.2d 1357, 1363 (1976); State v. Ouimette, 110 R.I. 747, 774-76, 298 A.2d 124, 140 (1972); Myers v. State, 256 So.2d 400, 402 (Fla.1972); State v. Perez, 182 Neb. 680, 157 N.W.2d 162, 164 (1968), cert. denied 393 U.S. 886, 89 S.Ct. 200, 21 L.Ed.2d 163 (1968). In accordance therewith, Walden is estopped from asserting that his rights as set forth in Miranda were infringed upon.

In addition, since the defendant retained counsel at both his trial and on appeal, and there is nothing in the record to indicate that he was in fact indigent, failure to give this defendant his full Miranda rights did not prejudice him. Hence, Officer Gunderson's failure to advise Walden of his right to a court-appointed attorney, a warning which was inapplicable to him, was not an error which affected Walden's substantial rights. United States v. Messina, 388 F.2d 393, 395 (2d Cir.1968), cert. denied 390 U.S. 1026, 88 S.Ct. 1413, 20 L.Ed.2d 283 (1968); United States v. Fisher, 387 F.2d 165, 169-170 (2d Cir.1967), cert. denied 390 U.S. 953, 88 S.Ct. 1047, 19 L.Ed.2d 1146 (1968); United States v. Lubitsch, 266 F.Supp. 294, 297 (S.D.N.Y.1967); United States v. Hecht, 259 F.Supp. 581, 583 (W.D.Pa.1966); People v. Baker, 19 Mich.App. 480, 172 N.W.2d 892, 896 (1969); Commonwealth v. Wilbur, 353 Mass. 376, 383, 231 N.E.2d 919, 923 (1967), cert. denied 390 U.S. 1010, 88 S.Ct. 1260, 20 L.Ed.2d 161 (1968); State v. Gray, 268 N.C. 69, 80-83, 150 S.E.2d 1, 11-12 (1966), cert. denied 386 U.S. 911, 87 S.Ct. 860, 17 L.Ed.2d 784 (1967). Accordingly, we conclude beyond a reasonable doubt that such error, if any, was harmless and therefore does not mandate a reversal. ¹ Rule 52(a), N.D.R.Crim.P.; Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1966); State v. Trieb, 315 N.W.2d 649 (N.D.1982).

The second issue to be adjudicated on appeal is:

Whether or not, considering the totality of the circumstances, Walden's written confession at the police station was voluntarily made and therefore properly admitted into evidence by the trial court.

Whether or not Walden's statement was voluntary is contingent upon two factors: first, whether or not the defendant voluntarily waived his right to remain silent; and, second, whether or not the defendant's statement was voluntarily made. State v. Roquette, 290 N.W.2d 260, 264 (N.D.1980). The standard of review to be utilized when resolving a question of voluntariness is whether or not, considering the totality of the circumstances, the trial court's determination that Walden's statement was voluntary is manifestly against the weight of the evidence. State v. Carlson, 318 N.W.2d 308, 311 (N.D.1982).

Walden alleges that his statement was not voluntary because: 1) he had only slept four hours in the 48-hour period preceding his statement; and 2) he was under the influence of alcohol at the time he made the statement. See generally State v. Discoe, 334 N.W.2d 466 (N.D.1983). In addition to these facts, Walden attacks the trial court's determination that his statement was voluntary on the basis of a comment made to Walden by a police officer. Specifically, after a police dog sniffed Walden and indicated that he recognized him, the dog's handler said: "... [this] dog [has] a good court record ... [you] could just as well go down and make the statement and do it the easy way." Upon being presented with these same facts, the trial court concluded that Walden's actions were voluntary.

Notwithstanding the factors referred to and relied upon by Walden, the trial court's determination that both Walden's waiver of his right to remain silent and his subsequent statement were voluntary, is not manifestly against the weight of the evidence for three reasons. First, Officer Gunderson testified that Walden was in control of his faculties and was not, in fact, intoxicated on the night in question. Second, lack of sleep does not unequivocally require a court to determine that Walden's actions were rendered involuntarily. See, Rouquette, 290 N.W.2d, supra at 264-65. And, third, the statements made by the dog handler were not of such a coercive nature as to override Walden's free will. Consequently, Walden's statement was properly admitted into evidence. ²

Walden's third and final contention is that the State's evidence against him was insufficient for the trial court to determine beyond a reasonable doubt that Walden committed the crime of attempted sexual imposition. A person can be adjudged guilty of a criminal attempt if "acting with the kind of culpability otherwise required for commission of a crime, he intentionally engages in conduct which, in fact, constitutes a substantial step toward commission of the crime." Section 12.1-06-01(1), N.D.C.C. The...