Opinion
No. 56952-0-I.
April 30, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-1-03221-7, John P. Erlick, J., entered September 19, 2005.
Affirmed by unpublished per curiam opinion.
Whether there has been a knowing, intelligent, and voluntary waiver of Miranda rights is determined by examining the totality of the circumstances. Here, undisputed facts establish that Fitzgerald waived his right to silence when he expressed an understanding of his rights and verbally agreed to speak with law enforcement officers. His statements were properly admitted as evidence. We affirm.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
State v. Young, 89 Wn.2d 613, 574 P.2d 1171 (1978).
Police detained Robert Fitzgerald in his vehicle on August 27, 2004, after receiving information that he may have been a prowler. Deputy Scott and Deputy Richter asked Fitzgerald some questions, and Fitzgerald answered all of them except one. He was not yet in custody. The deputies then placed Fitzgerald in custody and read him the Miranda warnings. After stating he understood the rights and asking the deputies what they wanted to know, Fitzgerald answered their questions.
The deputies transported Fitzgerald to the police station, where he signed a form indicating that he understood his Miranda rights, but refused to sign the waiver portion of the form. He said he was willing to give an oral statement, which he did. He later initialed and signed the statement.
The trial court ruled that all of Fitzgerald's statements to police were admissible at trial. A jury convicted him of voyeurism.
Fitzgerald appeals.
WAIVER OF MIRANDA RIGHTS
The panoply of protections set forth in Miranda v. Arizona applies when a person in custody is interrogated by law enforcement agents. Before any statement that is a product of custodial interrogation may be admitted at trial against a defendant, the State must establish that the defendant knowingly and intelligently waived his right to remain silent. A court determines whether there was waiver by examining the totality of the circumstances, including the background, experience, and conduct of the accused. Often, such a burden is met by evidence of a signed waiver statement or an express verbal waiver of the right, but an express statement is neither necessary nor sufficient to establish waiver. Rather, the reviewing court must examine all of the circumstances. However, a waiver shall not be inferred from silence alone, or from the fact that a confession was ultimately obtained. Courts should not presume a waiver, but should require the State to prove that the defendant waived his rights knowingly and intelligently.
Miranda, 384 U.S. at 467.
Id. at 475.
North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979); accord State v. Young, 89 Wn.2d 613, 574 P.2d 1171 (1978).
Butler, 441 U.S. at 373-74.
Id.
Miranda, 384 U.S. at 475.
Id. (citing Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938)).
A suspect may assert his right to silence at any time, even after initially waiving it. If a suspect initially waives his right to remain silent and begins talking with police officers, but later asserts his right, police must "scrupulously honor" the suspect's right to cut off questioning. Thus, if the suspect "unequivocally" asserts the right to remain silent in such a situation, all questioning must cease immediately. If the later assertion is not unequivocal, however, police officers may continue questioning because they no longer have a legal obligation to stop and ask clarifying questions.
Michigan v. Mosley, 423 U.S. 96, 103-04, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975).
State v. Hodges, 118 Wn. App. 668, 672-73, 77 P.3d 375 (2003).
Davis v. United States, 512 U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994); State v. Walker, 129 Wn. App. 258, 118 P.3d 935 (2005).
Whether or not a suspect invokes or waives any rights initially, officers are free to question him if he initiates further conversation with law enforcement. A person may be found to have waived the right to silence if he "freely and selectively responds to police questioning after initially asserting Miranda rights." We review de novo whether there was a valid waiver of Miranda rights.
State v. Aten, 130 Wn.2d 640, 666, 927 P.2d 210 (1996) (citing Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981)).
State v. McReynolds, 104 Wn. App. 560, 576, 17 P.3d 608 (2000) (quoting State v. Wheeler, 108 Wn.2d 230, 238, 737 P.2d 1005 (1987)) (concluding that the suspect waived her Miranda rights when she said she wanted to talk despite having earlier asserting her right to silence).
State v. Johnson, 94 Wn. App. 882, 897, 974 P.2d 855 (1999); see also Thompson v. Keohane, 516 U.S. 99, 112-13 n. 11, 116 S. Ct. 457, 133 L. Ed. 2d 383 (1995) (holding that a de novo standard of review applies to whether a suspect was in custody for purposes of Miranda because it is a mixed question of law and fact, despite that it is a "totality of the circumstances" inquiry), superseded by statute on other grounds by 28 U.S.C. § 2254(d)(1).
Fitzgerald challenges only two of the trial court's findings of fact. The others are therefore verities on appeal. We review the challenged findings to determine whether they are supported by substantial evidence in the record. Substantial evidence is that which would convince a rational trier of fact of the truth of the matter. The challenged findings are:
State v. Brockob, 159 Wn.2d 311, 343, 150 P.3d 59 (2006).
Id.
State v. Thetford, 109 Wn.2d 392, 396, 745 P.2d 496 (1987).
. . .
w. The defendant never asserted his rights, and instead willingly gave a 30-40 minute interview.
. . .
y. The defendant never invoked his rights to counsel, to the appointment of counsel, or to remain silent (other than refusing to answer specific questions).
Clerk's Papers at 26 (trial court's findings of fact).
These facts are supported by substantial evidence in the record. Deputy Richter testified that when he asked Fitzgerald a specific question before placing him in custody, Fitzgerald stated, "I'd rather not answer that." Deputy Richter then moved on to a different question. Later, when Deputy Scott was questioning Fitzgerald at the precinct, Fitzgerald responded to a particular question by remaining silent, folding his arms, and turning away from the deputy. The trial court correctly concluded that Fitzgerald selectively chose not to answer these two questions, but he did not in any way indicate that he wished to remain silent generally or not answer any further questions. In both instances, the deputies honored his wish not to answer a particular question.
(Emphasis added.)
Under the totality of the circumstances, including these and the unchallenged findings of fact, we conclude that Fitzgerald waived his right to silence knowingly, intelligently, and voluntarily. It is undisputed that after having first been read his rights during the traffic stop, Fitzgerald "expressed a full understanding of his Miranda rights and asked the officer what he wanted to know." At the station, after being placed under formal arrest, Fitzgerald "signed the constitutional rights form, indicating he understood them." He refused to sign the waiver portion of the form, but he "verbally told [Deputy] Scott he was willing to give a statement." After he "willingly gave a 30-40 minute interview," he signed the written version of his verbal statement.
The fact that Fitzgerald refused to sign the waiver portion of the rights form is not dispositive. In North Carolina v. Butler, the United States Supreme Court declined to adopt a per se rule that an accused must explicitly waive the right to an attorney to satisfy Miranda. It remanded for a determination of whether the accused had waived his rights when he indicated that he understood his rights, and then stated, "I will talk to you but I am not signing any form."
Applying Butler, this court in State v. Parra concluded that the defendant made a knowing, intelligent, and voluntary waiver of his right to silence when he refused to sign the waiver form but stated, "I'm willing to talk to you." In this case, Fitzgerald has not challenged the trial court's factual finding that he verbally told Deputy Scott he was willing to give a statement. His refusal to sign the form does not detract from his unmistakable willingness to waive his right to silence.
96 Wn. App. 95, 99-100, 977 P.2d 1272 (1999).
The parties dispute the significance of the fact that Fitzgerald selectively refused to answer two questions. According to Fitzgerald, the deputies violated his right to cut off questioning by continuing to interrogate him after he did so. He also cites United States v. Heldt for the proposition that his refusal to sign the waiver portion of the form was a refusal to talk and "at best created an ambiguous situation." It is true that the Ninth Circuit has concluded that a suspect's refusal to sign the waiver of rights form may "cast initial doubt" on a conclusion that he waived those rights. But in Heldt, the Ninth Circuit noted that the defendant indicated in other ways that he did not wish to answer questions. In contrast here, Fitzgerald specifically said he was willing to give a statement. And as discussed above, Fitzgerald only indicated that he did not wish to answer two specific questions, not that he wished to stop talking generally. Such free and selective responses to questioning indicates a waiver of the right to silence. Because we must look to the totality of the circumstances, Heldt does not compel a different conclusion.
745 F.2d 1275, 1277 (9th Cir. 1984).
Id.
Id. at n. 3.
See State v. Cross, 156 Wn.2d 580, 620, 132 P.3d 80, cert. denied, 127 S. Ct. 559 (2006).
We affirm the judgment and sentence.
For the Court: