Appeal from Superior Court of Spokane County. Docket No: 95-8-00493-4. Date filed: 07/10/95. Judge signing: Hon. Robert H. Whaley.
Authored by Dennis J. Sweeney. Concurring: Ray E. Munson, Frank L. Kurtz
The opinion of the court was delivered by: Sweeney
SWEENEY, C.J. Anthony Breon Edlin, a juvenile, appeals a conviction of taking a motor vehicle without permission. He contends the court erred in not conducting a CrR 3.5 hearing and that the evidence is insufficient to support the conviction. We affirm.
On May 23, 1995, an off-road motorcycle was taken from an apartment patio in Spokane. The next day, the owner saw Steven Moody riding the bike. He confronted Mr. Moody who told him that Mr. Edlin gave him the bike to ride. The manager of Mr. Edlin's apartment complex had seen Mr.Edlin riding the motorcycle earlier in the day. He also saw Mr. Edlin take the license plate off the motorcycle and throw the plate into a nearby field.
Police Officer Patrick Dobrow contacted Mr. Edlin and placed him under arrest. Mr. Edlin was advised of his constitutional rights. Mr. Edlin told the officer he threw the license plate into a vacant field because his cousin told him to.
At the adjudication hearing, Officer Dobrow was asked whether Mr.Edlin was advised of his Miranda *fn1 rights before making his statements. Defense counsel objected. The court said, "what we're trying to do here is a 3.5 hearing. The big question is, did you ever advise him of his constitutional rights before he said anything to you." The officer answered that Mr. Edlin was informed of his rights. The court convicted Mr. Edlin. This appeal follows.
Mr. Edlin first contends the court erred because it did not conduct a CrR 3.5 hearing. He asserts that he was denied an opportunity to present evidence on the voluntariness of his statement. Relying on State v. Alexander, 55 Wash. App. 102, 105, 776 P.2d 984 (1989) and State v. Tim S., 41 Wash. App. 60, 63, 701 P.2d 1120 (1985), Mr. Edlin urges that the voir dire examination of a police officer, by itself, is insufficient to satisfy CrR 3.5.
CrR 3.5, applicable to juvenile proceedings through JuCR 1.4(b), *fn2 provides in relevant part:
(a) Requirement for and Time for Hearing. When a statement of the accused is to be offered in evidence, the Judge at the time of the omnibus hearing shall hold or set the time for a hearing, if not previously held, for the purpose of determining whether the statement is admissible. But unlike a jury trial in which a "lay jury may find it difficult to accept the notion that an otherwise trustworthy confession must be excluded if it is involuntary," in a trial to the bench, the Judge is presumed to rely only upon admissible evidence in reaching its decision. State v. Wolfer, 39 Wash. App. 287, 292, 693 P.2d 154 (1984), review denied, 103 Wash. 2d 1028 (1985). Although advisable, a separate CrR 3.5 hearing is not required in the case of a bench trial. Id. at 292.
Mr. Edlin's reliance on Tim S. and Alexander is not persuasive. In Tim S., the defendant did not request, and the court did not hold, a CrR 3.5 hearing. The defendant was not given Miranda warnings prior to the officer's questioning. This court held that the record raised a serious question as to whether the statement was voluntarily made. Tim S., 41 Wash. App. at 63. In contrast, Mr. Edlin was given his Miranda warnings and had the opportunity to present evidence.
In Alexander, the juvenile defendant was given his Miranda warnings. The next morning, he made a statement which established his participation in a burglary. Alexander, 55 Wash. App. at 103. The defendant signed a form indicating he was advised of his rights but did not waive those rights. After voir dire of the officer, the court admitted the officer's statement without providing the defendant an opportunity to testify as to the voluntariness of the statement. Id. at 103. We held the voir dire examination was not by itself sufficient to meet the requirements of a CrR 3.5 hearing. Recognizing that a separate CrR 3.5 pretrial hearing was not required, we held that "in order to have full knowledge of the facts and circumstances surrounding a statement it is necessary that the defendant be allowed to testify in his own behalf." Id. at 105. We reversed because the trial court did not permit the defendant an opportunity to testify or present other evidence.
Here, Mr. Edlin was given an opportunity to present evidence contrary to the officer's testimony. And he had the opportunity to cross-examine Officer Dobrow. He did neither. The court was ...