City of Seattle v. Gerry

458 P.2d 548, 76 Wash. 2d 689, 1969 Wash. LEXIS 694

• Court: Washington Supreme Court
• Decided: September 11, 1969
• Docket: 39656
• Status: Published

Opinions

McGovern, J.

Defendant Lee James Gerry appeals, from a two-count conviction of violating the traffic laws of the city of Seattle; (1) failing to stop for a red traffic control light, and (2) failing to stop and identify himself at the scene of an accident in which he was involved and another party injured.

Sometime after the accident, defendant went to the north end precinct of the Seattle Police Department, obtained an accident report form and commenced making his written statement as required by both state and city law. He had written the location of the accident and his name on the report when, by circumstance, the police officer who had visited the scene of the accident walked by, glanced at the report, and realized that defendant might be reporting on the same accident. Defendant responsively stated that he would be willing to speak with an officer of the traffic division special detail but no other conversation took place between him and that officer.

Officer Wood, representing the traffic special detail, thereafter arrived and was briefed by the first police officer. He then advised the defendant of his constitutional right to be represented by legal counsel, of his right to remain silent, and further told him that anything he said might be used against him in a court of law. Thereafter, defendant orally admitted the hit-and-run offense and signed a statement to that effect, which statement was thereafter admitted as an exhibit in the cause.

It is the admission of that incriminating statement into evidence which gives rise to the dispositive assignment of error. Defendant insists that although Officer Wood may have orally advised him of his constitutional rights to counsel and silence, nonetheless he did not understand what was said. From that starting point he argues that he cannot be held to have waived that which he did not comprehend.

During the course of trial it was the announced intention of defendant to persuade the court, sitting without a jury, that he, the defendant, was not aware of these rights. Toward that end he attempted to testify about his limited educational and environmental background and about his inability to understand what might be to others simple, ordinary language. He would, by such method, refute the position of the prosecution that he had waived his rights to counsel and silence. The record discloses that the following colloquy then occurred:

The Court: You are putting him on for a limited purpose. The only thing I am interested in is whether or not that statement was voluntarily made. Are you claiming he can’t read and write? Mr. McIntosh: We are contending this particular individual does not have a full awareness or capability of understanding his right to counsel; he does not have a proper understanding so as to make any admissions or confessions voluntarily. It goes to the question of his own personal capabilities and background and abilities. The Court: Do you have any psychiatrist that is going to testify? Mr. McIntosh: No. The Court: Objection sustained. I am not going into it. He looks all right to me. He answers your questions properly. I am only interested in whether or not Exhibit 1 was made according to what the officer said it was. If it wasn’t he can tell me it wasn’t. Mr. McIntosh: Your Honor, the question of whether this man could understand is certainly relevant as to whether there was a voluntariness or any efficient waiver of right to counsel. The Court: No, you would have to bring someone in here, you would have to have him examined and they would have to testify he didn’t know what he was doing. He looks perfectly all right to the Court. Mr. McIntosh: That is what we are offering to prove, that this man did not know what he was doing or being required to do and his knowledge and limitations of that knowledge are based on limitations of capability and of education. The Court: Then he shouldn’t be driving a Cadillac.

It is not difficult to perceive of more acceptable criteria for determining one’s ability to understand the English language than the looks of that person or the make of car he drives. Had the court allowed his testimony, it is probable that such criteria would have been readily apparent.

One’s understanding is best explained by him whose subjective is involved, not by someone else. What that person says, though, is of course a matter of evidence and need be given only such weight as the trier of fact thinks it is entitled to receive. For those reasons Mr. Gerry should have been allowed to testify concerning his capabilities for understanding.

That is so because if he did not understand what Officer Wood told him, and if he was not otherwise aware of those rights, then his incriminating statement would not have been admissible. “One cannot effectively waive ... a constitutional right without knowledge of its existence.” State v. Tetzlaff, 75 Wn.2d 649, 453 P.2d 638 (1969).

The United States Supreme Court has also made it clear that an understanding is prerequisite to a constitutional waiver. In Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966) it said: “[A] heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self incrimination,” and that “The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.”

We are constrained to consider an additional assignment of error. In the event of retrial, it is likely that defendant would again insist that his confession is not admissible as evidence because it constitutes the product of a legally privileged communication. He states that he made a report of the accident as required by state law (RCW 46.52.030) and Seattle city ordinance No. 91910, and that the city then used the report against him in the trial of his case. He said this was done in spite of the fact that the governing statute (RCW 46.52.080) and the Seattle ordinance expressly provide that “No such accident report or copy thereof shall be used as evidence in any trial, civil or criminal, arising out of an accident.”

The record does not support defendant’s argument. Reference to the report was made on direct examination by only one city witness, Officer Berney Miller. He testified that when he first saw the defendant “At this time he was starting an accident report form and as I walked by I glanced at it and he had his name and he had started the location of incident on the accident form.” The report itself was not before the court, nor were any of its details, and no other direct reference to it was made by the city. That being so, its privileged nature was in no way violated. The report, therefore, has no bearing on the admissibility of defendant’s confession.

The sentence is set aside and the judgment of the trial court reversed.

Hill, Finley, Weaver, Rosellini, Hamilton, and Neill, JJ., concur.