State v. Erho

463 P.2d 779, 77 Wash. 2d 553, 1970 Wash. LEXIS 347
CourtWashington Supreme Court
DecidedJanuary 15, 1970
Docket39893
StatusPublished
Cited by28 cases

This text of 463 P.2d 779 (State v. Erho) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Erho, 463 P.2d 779, 77 Wash. 2d 553, 1970 Wash. LEXIS 347 (Wash. 1970).

Opinions

Hamilton, J.

David Andrew Erho, age 19, was charged, tried and convicted by a jury of the crime of robbery. He appeals from that conviction.

On January 5, 1967, at about 8:30 or 9 p.m., two men, wearing dark glasses, entered the Crown Grocery, a small store located on Roosevelt Way, N.E., in Seattle, Washington. They picked up a package of cupcakes and ordered a carton of cigarettes. As the proprietor placed the cigarettes upon the counter both men confronted him with pointed guns and demanded his money. The proprietor gave them approximately $15 from the cash register and showed them his wallet was empty. The men departed with the money, the cigarettes, and the package of cupcakes. The proprietor pursued them with a gun, fired three shots, and observed their escape in an automobile. The police were notified.

Several days later, the police apprehended one Russell Shaw, the owner and purported driver of the “getaway” car. From his statements and other information, the police, late in the afternoon and evening of January 18, 1967, [555]*555learned the identity and whereabouts of appellant and a companion believed to be implicated with appellant in the robbery. At about 1:30 a.m., on January 19, 1967, four officers entered the hotel where appellant was living and arrested him, a male companion, and one Naomi Shaw Gage, Russell Shaw’s sister, at the room which the three were occupying. The detective in charge testified he advised appellant of his constitutional rights at the time of arrest. Immediately after the arrest, the three were taken into custody and transported in separate patrol cars to the location of Shaw’s automobile. On the way, appellant orally admitted to the two officers with him in the patrol car his participation in the Crown Grocery robbery and indicated that the guns involved were in the trunk of the Shaw vehicle.

When the group arrived at the site of the Shaw vehicle, Naomi Shaw Gage gave the car keys to the police and consented to a search of the automobile. Amid other paraphernalia the police discovered sunglasses and two pistols. The suspects were then taken to the police station where appellant was offered the use of a telephone, which he declined.

Between 3:30 and 4:30 a.m., appellant’s statement of his participation in the robbery was reduced to writing by the interrogating officer and signed in the presence of the officer and appellant’s alleged accomplice in the robbery. This written statement included a declaration that appellant had been fully advised of his constitutional rights, and a delineation of those rights. Within a few days thereafter, appellant and his companion were identified in a lineup by the proprietor of the Crown Grocery. Appellant was then formally charged with the crime of robbery, counsel was appointed to represent him, and upon arraignment he entered a plea of not guilty and moved to suppress his admissions and the products of the search of the Shaw vehicle.

At the pretrial hearing on appellant’s motion to suppress, conducted pursuant to CrR 101.20W, appellant took the stand and testified he did not receive any warnings with respect to his constitutional rights at the time of arrest, [556]*556could not remember the extent of any warnings he received, and only vaguely remembered giving a statement. He further testified that at the time of his arrest and during interrogation he was under the influence of narcotics, admitting, however, that he did not inform the police of his condition, and that his condition would have been difficult to detect by anyone who did not know him well.

The officer who arrested and interrogated appellant testified concerning the admonitions he gave appellant at the time of arrest. In this respect he stated he:

Told him he didn’t have to say anything; had the right to remain silent; had the right to see an attorney before saying anything; had the right to have an attorney present at that time before saying anything.

The officer was not requested to nor did he elaborate further upon the content of the warnings at the time of arrest and none of the other officers present at that time or who accompanied appellant to the Shaw automobile and the police station were called as witnesses.

The officer further testified that appellant denied being affected by any drugs when asked as a preliminary step in the interrogation, and that appellant did not appear to be so affected.

At the conclusion of the hearing, the trial court determined from the evidence adduced that appellant’s arrest was lawful; that the search of the Shaw vehicle was with the express permission of the only person then entitled to exercise dominion over it, Naomi Shaw Gage; that at the time of arrest appellant was not advised, prior to questioning, of his right to have counsel appointed for him if he could not afford an attorney, but that at the time he signed the written statement at the police station he was advised of his rights; and that appellant was not under the influence of any drugs at the time of his apprehension and interrogation. Based upon these determinations, the trial court held appellant’s oral admissions made in the patrol car immediately after arrest to be inadmissible because of the inadequacy of the warnings at the time of arrest. The motion to suppress was otherwise denied and appellant’s written [557]*557statement as well as the guns discovered in the Shaw vehicle and identified by the proprietor of the Crown Grocery as being of the kind used in the robbery were admitted into evidence during appellant’s trial.

By way of his first assignment of error, appellant challenges the admissibility into evidence of his written statement. In this respect, he points to Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), and State v. Davis, 73 Wn.2d 271, 438 P.2d 185 (1968), and argues, first, that the state failed to meet its heavy burden of proof in its effort to demonstrate that appellant knowingly, intelligently, and voluntarily waived his constitutional rights to counsel and to remain silent; and, second, that the inadequacy of the Miranda warnings at the time of arrest, coupled with his oral admissions shortly thereafter, infected the voluntariness and admissibility of his subsequent confirmatory written statement.

We agree with appellant upon both scores.

It is stated by the United States Supreme Court in Miranda v. Arizona, supra, at 475:

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.

In State v. Davis, supra, this court recognized the burden of proof imposed upon the state by the Miranda decision and stated, at 283 and 286:

The thrust of Miranda is aimed at the state’s burden of proving that the appropriate warnings were given and that the accused effected a valid waiver, and does not apply to the state’s burden of proving that the confession was in fact made. . . .
Moreover, Miranda specifically points out certain factual criteria which should be considered in determining the validity of a waiver, . . .

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Cite This Page — Counsel Stack

Bluebook (online)
463 P.2d 779, 77 Wash. 2d 553, 1970 Wash. LEXIS 347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-erho-wash-1970.