Opinion
No. 51376-1-I.
Filed: June 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-01585-5. Judgment or order under review. Date filed: 10/11/2002.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Jason Brett Saunders, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent(s), Matthew G Anderson, King Co Pros Aty, W554, 516 3rd Ave, Seattle, WA 98104-2390.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Timothy John Leary, Attorney at Law, W554 King Co Cthse, 516 3rd Ave, Seattle, WA 98104-2385.
Following a high speed chase involving a stolen car, police arrested Edward Grant and advised him of his rights. Grant initially claimed he was a passenger in the car. The following day, during a jail interrogation, Grant admitted he was the driver. At Grant's trial for taking a motor vehicle without permission and attempting to elude a pursuing police vehicle, the court admitted his statements to police and a jury convicted him as charged. He appeals, arguing that his statements at the jail were inadmissible because the police did not readvise him of his rights prior to that interrogation, and because he was in great pain when he was advised of his rights. We affirm.
DECISION
Before custodial statements may be admitted, the State must prove by a preponderance of the evidence that the defendant was advised of his or her Miranda rights, and made a voluntary, knowing and intelligent waiver of those rights prior to the statements. The test for voluntariness is whether, under the totality of the circumstances, the confession was coerced. Relevant circumstances include the condition of the defendant, the defendant's mental abilities, and the conduct of the police. Findings relating to voluntariness are verities if unchallenged, and are otherwise reviewed for substantial evidence.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Braun, 82 Wn.2d 157, 160-61, 509 P.2d 742 (1973).
State v. Broadaway, 133 Wn.2d 118, 942 P.2d 363 (1997).
State v. Broadaway, 133 Wn.2d at 132.
State v. Broadaway, 133 Wn.2d at 131.
Grant contends his statements at the jail were inadmissible because he was not readvised of his rights immediately prior to questioning. It is not necessary, however, to give an advisement of constitutional rights prior to each in-custody statement once a suspect has been adequately and effectively warned. The trial court found, and Grant concedes, that he received Miranda warnings at the time of his arrest. In addition, an unchallenged finding of fact states that, prior to the jail interview, Grant told the interrogating officer he had previously been advised of his rights and that he understood those rights. Because Grant received Miranda warnings the day before the interview, there was no need to readvise him prior to the jail interview.
State v. Gilcrist, 91 Wn.2d 603, 590 P.2d 809 (1979); State v. Sweet, 36 Wn. App. 377, 382, 675 P.2d 1236 (1984); State v. Burkins, 94 Wn. App. 677, 694, 973 P.2d 15 (1999).
Washington courts have upheld questioning occurring days after advisement of rights. State v. Rowe, 77 Wn.2d 955, 468 P.2d 1000 (1970) (statements made within 48 hours of advisement); State v. Blanchey, 75 Wn.2d 926, 454 P.2d 841 (1969) (four days between statements and advisement).
Grant argues, however, that the Miranda warnings were ineffective due to a leg injury he suffered during the pursuit. He claims that the injury caused `so much pain that he only heard portions of [the warnings]' and was incapable of making a voluntary statement and waiver of his rights. The arresting officer testified, however, that while Grant was limping, he was alert, focusing, and paying attention during the advisement of rights and expressly acknowledged and waived those rights. The court found the officer's testimony credible. It did not believe Grant's version of the events. Credibility determinations are for the trier of fact. The record supports the trial court's finding that Grant's statements were made following `a knowing, intelligent and voluntary waiver of his Miranda rights.'
Appellant's Brief at 12.
Appellant's Brief at 14.
Clerk's Papers (CP) at 54-55.
CP at 56.
State v. Camarillo, 115 Wn.2d 60, 794 P.2d 850 (1990).
CP at 57.
Grant next contends the court erred in failing to enter written findings of fact and conclusions of law as required by CrR 3.5. He requests a remand for entry of findings. A remand is unnecessary, however, because written findings and conclusions were entered prior to the State's response. Grant chose not to file a reply brief and has not challenged the court's findings or requested any additional relief. Accordingly, this issue is moot.
Grant raises several additional arguments in a pro se statement of additional grounds for review. He contends he was denied effective assistance of counsel and a fair trial because his counsel and the prosecutor referred at several points to `the defendant's car' or `Grant's vehicle,' and a State's witness testified that `Grant sped through' some cars. Because one of the issues at trial was whether Grant was driving the suspect vehicle, Grant contends these statements invaded the province of the jury. He also contends defense counsel was ineffective for failing to object to the statements, and the prosecutor committed misconduct in failing to caution the witness against such statements. These contentions are without merit.
It is clear from the record that the references to `Grant's car' and `the defendant's car' were references to the car that Grant was riding in, not to Grant's status as the driver of the car. While Officer Schanbacher's testimony that `Grant sped through' some cars might be interpreted as implying that Grant was driving, no reasonable trier of fact would have adopted that interpretation since Schanbacher never saw the driver and thus had no basis to make such a statement. We presume that the court in a bench trial will ignore inadmissible evidence. There is no basis to find either ineffective assistance or prosecutorial misconduct.
State v. Bell, 59 Wn.2d 338, 352, 368 P.2d 177 (1962); State v. Miles, 77 Wn.2d 593, 601, 464 P.2d 723 (1970).
Grant also contends the prosecutor violated charging guidelines by performing an inadequate investigation prior to filing charges. Noting that the stolen vehicle was impounded after his arrest, Grant contends the State `failed to take finger prints of the steering wheel, the shifting handle, and the back of the seat, as well as the dash board.' To the extent Grant seeks to demonstrate a wrongful or malicious prosecution, his claim is civil in nature and is not properly before this court. To the extent he is attempting to demonstrate a due process violation for an alleged failure to preserve evidence, he has not set forth a prima facie case for that claim.
Statement of Additional Grounds for Review at 8-9.
See State v. Romero, 113 Wn. App. 779, 796-97, 54 P.3d 1255 (2002) (defendant cannot claim police failed to preserve material evidence when he has not shown that a fingerprint analysis would have turned up any fingerprints at all.).
Affirmed.
COLEMAN, KENNEDY, and APPELWICK, JJ., concurs.