No. 48333-1-I.The Court of Appeals of Washington, Division One.
Filed: May 20, 2002. UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 008017580, Hon. James D. Cayce, March 9, 2001, Judgment or order under review.
Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Shannon B. Marsh, Washington Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Julie A. Kays, W554, 516 3rd Ave, Seattle, WA 98101.
PER CURIAM.
Shabray McMurray appeals his adjudication of guilt on one count of attempted third degree theft, arguing that the trial court erred in denying his motion to suppress his statements made to the police. Specifically, McMurray argues that because he and the officer disagreed about the facts surrounding the statement being given, the State was required to call another officer who was present in the room to resolve the factual dispute. Because the officer’s version of events was corroborated by an audio tape, we disagree and affirm.
FACTS
On February 6, 2000, Kent police officer Robert Constant learned of an attempted robbery at the Benson Dry Cleaners. The description of the suspect matched Shabray McMurray, with whom Officer Constant was familiar. On February 14, 2000, Officer Constant came into contact with McMurray at a Fred Meyer store on an unrelated matter. According to Officer Constant, he read McMurray his Miranda[1] warnings as well as an additional warning for juveniles.[2]
Officer Constant then placed McMurray under arrest and transported him to the station. At the station, they were joined by Detective Garrett.
The three went into an interrogation room where Officer Constant re-read McMurray his rights,[3] which McMurray waived. McMurray then confessed to attempting to rob the Benson Dry Cleaners. The reading of the rights and the confession were memorialized on an audio tape that was played for the court.
McMurray testified in the combined 3.5 hearing and trial. He claimed that Officer Constant had never read him his rights. He admitted making the confession, but claimed it was made under duress. Among other allegations, he claimed that Officer Constant threatened to charge him with murder and lock him up for the rest of his life if he did not confess. He also claimed that he and Officer Constant were alone in the room, and that Detective Garrett did not come in until later. McMurray also testified that Officer Constant told him what to say by writing the answers he was to give down on a piece of paper, and that he simply read those answers in response to Officer Constant’s questions.
At the close of the 3.5 hearing, McMurray moved to suppress his statements on the basis that Officer Constant’s version of events was contested, and that the State was therefore required to call Detective Garrett to corroborate the facts surrounding the confession and reading of rights. The trial court denied the motion, finding that the tape corroborated Officer Constant’s testimony, and that McMurray’s testimony was not credible and at points downright `bizarre.’[4] The court found McMurray not guilty of the charged crime of attempted robbery, but guilty of the lesser offense of attempted third degree theft. This appeal follows.
DECISION
McMurray first argues that the trial court erred in denying his motion to suppress because the State failed to show that McMurray waived his rights before confessing. We reject this contention. The audio tape of the confession shows that after Officer Constant read McMurray his rights, he said to McMurray, `Okay. Having those rights in mind, do you wish to tell me how you got involved in this whole thing?’[5] According to Officer Constant, McMurray then nodded, and looked at him questioningly, as if to ask where he should start. Officer Constant then told McMurray to go ahead and start from the beginning. McMurray then confessed. While McMurray did not expressly waive his rights, he did so impliedly.
A valid waiver may be either express or implied. A waiver may be implied `where the record reveals that a defendant understood his rights and volunteered information after reaching such understanding.’ State v. Terrovona, 105 Wn.2d 632, 646, 716 P.2d 295 (1986). The validity of a waiver depends on the totality of the circumstances, including the background, experience, and conduct of the defendant. North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). Here, the record reflects that McMurray had been read Miranda warnings on numerous occasions, had at times chosen to give a statement, and at other times had declined to do so. This background, combined with Officer Constant’s testimony and the circumstances surrounding the confession, as memorialized on the audio tape, support the trial court’s conclusion that McMurray made a knowing, voluntary, and intelligent waiver of his rights.
The court did not err in denying McMurray’s motion to suppress on this basis.
McMurray also argues that the trial court erred in denying his motion to suppress because the State did not call Officer Garrett to corroborate Officer Constant’s testimony. Relying on State v. Davis, 73 Wn.2d 271, 438 P.2d 185 (1968), and State v. Erho, 77 Wn.2d 553, 463 P.2d 779
(1970), he argues that the State fails to meet its burden of proving a valid waiver of rights when the prosecution does not call a second officer who was present during the reading of rights and confession. As a preliminary matter, we note that McMurray denied Detective Garrett was even in the room when McMurray made his statement to Officer Constant, so it is somewhat inconsistent for him to argue that the State had an obligation to call Detective Garrett. Even ignoring this inconsistent line of reasoning, McMurray’s argument fails.
Here, in contrast to the situation presented in Davis and Erho, the State had independent evidence to corroborate Officer Constant’s testimony in the form of an audio tape of the reading of rights and the confession. Detective Garrett’s testimony was therefore not necessary and would have been merely cumulative. Under these circumstances, there can be no inference that the State failed to call Detective Garrett because his testimony would have been harmful to the State. The State met its burden of proving that Officer Constant read McMurray his rights and that McMurray made a valid waiver of those rights. The trial court properly denied McMurray’s motion to suppress his confession.
Affirmed.