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Washington v. Valdez

filed: May 14, 1996.

STATE OF WASHINGTON, RESPONDENT,
v.
AUGUSTIN VALDEZ, APPELLANT.



Appeal from SUPERIOR COURT YAKIMA COUNTY. Superior Court No: 93-1-01269-7. Date filed in Superior Court: 2/18/94. Superior Court Judge signing: MICHAEL LEAVITT.

Author: Ray E. Munson, Concurring: Dennis J. Sweeney & Philip J. Thompson

Author: Munson

MUNSON, J. --Augustin Valdez was convicted on a jury verdict of guilty of second degree rape. He appeals the denial of his pretrial motion to suppress evidence. He assigns error to the court's failure to enter written findings in support of the order denying his motion to suppress. He also challenges the portion of his sentence which requires him to submit to polygraph testing.

As she was walking home late at night, Diane Painter was accosted and raped by a man she later identified as Mr. Valdez. He was arrested early Friday morning, August 20. At his preliminary hearing at 9 a.m. that same day, the judge asked Mr. Valdez whether he wanted to have a lawyer appointed to represent him. He nodded. The court appointed counsel.

That afternoon, Detective Brenda George received a report on the matter. After she interviewed the victim she went to the jail, accompanied by an interpreter. She had assumed Mr. Valdez would have his preliminary hearing the following Monday morning. Mr. Valdez was given Miranda warnings through the interpreter. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R.3d 974 (1966). He indicated he understood his rights and was willing to talk to the detective. At the end of the

interview Detective George asked him if he would consent to have samples of his bodily fluids taken. He agreed to have samples taken. The following Monday afternoon, the detective returned and had Mr. Valdez sign the consent forms. She testified she was not aware an attorney had been appointed for Mr. Valdez. There is no evidence Mr. Valdez was advised of his Miranda rights during this second visit.

While they were waiting for someone to take Mr. Valdez's blood, he gave the detective a piece of paper written in Spanish. He indicated he had written on it and wanted it read in court.

Mr. Valdez never told the detective he wanted to speak with an attorney. The piece of paper was translated into English and contained a statement admitting intercourse with Ms. Painter but claiming it was consensual. Before trial, Mr. Valdez moved to suppress the writing. Following an evidentiary hearing, the court orally denied his motion and the matter proceeded to trial. The statement was admitted at trial.

Mr. Valdez contends failure to suppress the written statement he gave Detective George was error.

Once an accused has asserted his Fifth Amendment right to counsel, custodial interrogation must cease unless the accused initiates further communication or until counsel has been made available to the accused. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). The Sixth Amendment likewise guarantees the right to counsel at postarraignment interrogations. Michigan v. Jackson, 475 U.S. 625, 632, 106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986); State v. Royer, 58 Wash. App. 778, 794 P.2d 1325 (1990). While the right to counsel does not depend on a request by the accused, if the right has been asserted a subsequent waiver is presumed invalid, even if Miranda warnings have been given, unless the defendant initiates communication. Michigan v. Harvey, 494 U.S. 344, 345, 110 S. Ct. 1176, 108 L. Ed. 2d 293 (1990); Jackson, 475 U.S. at 633. If the accused does not assert

the right to counsel, then once he has been adequately advised of his right to counsel he may validly waive that right by agreeing to talk to police detectives. Patterson v. Illinois, 487 ...


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