State v. Wallace7/22/2004
this case does not show regarding the circumstances of Wallace's waiver. Notwithstanding that Wallace refused to execute a written waiver of rights, it is undisputed that he "said nothing when advised of his right to the assistance of a lawyer. At no time did [Wallace] request counsel or attempt to terminate ... questioning." Butler, 441 U.S. at 371, 99 S.Ct. 1755. Additionally, there is no evidence whatsoever controverting Officer Adachi's account of the encounter at which the challenged statements were made. Nor does Wallace allege any facts that have traditionally cast doubt upon a finding of knowing and voluntary waiver, e.g.: (1) that the interrogation was lengthy or preceded by an incommunicado incarceration, Miranda, 384 U.S. at 476, 86 S.Ct. 1602; (2) that the defendant lacked education, Davis v. North Carolina, 384 U.S. 737, 742, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966); (3) that the defendant exhibited weakness of will or mind, Fikes v. Alabama, 352 U.S. 191, 196-97, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957); or (4) that there were hostilities incident to the defendant's arrest or custodial interrogation, Beecher v. Alabama, 389 U.S. 35, 38, 88 S.Ct. 189, 19 L.Ed.2d 35 (1967). See State v. Harris, 188 Conn. 574, 452 A.2d 634, 637 (1982). To the contrary, the record plainly reflects that Wallace freely agreed to talk with Officer Adachi.
Wallace points out that "courts in other jurisdictions have construed a refusal to sign a police waiver form as an ambiguous assertion of the suspect's right to counsel and to silence[,]" citing United States v. Heldt, 745 F.2d 1275, 1278 (9th Cir.1984); United States v. Van Dusen, 431 F.2d 1278 (1st Cir.1970); United States v. Nielsen, 392 F.2d 849 (7th Cir.1968); Millican v. State, 157 Ind.App. 363, 300 N.E.2d 359 (1973); and *1289 People v. Coleman, 43 N.Y.2d 222, 401 N.Y.S.2d 57, 371 N.E.2d 819 (1977). These cases are, however, distinguishable on their facts.
Unlike the instant case, the defendant's refusal to execute a written waiver in Nielsen, Millican, and Heldt was coupled with additional facts mitigating against effective waiver. Specifically, in Nielsen and Millican, the respective defendants explicitly indicated that they would not sign a written waiver form until they had talked to an attorney. Nielsen, 392 F.2d at 852; Millican, 300 N.E.2d at 360. Only in this context did the Nielsen and Millican courts construe the defendants' subsequent willingness to talk as an equivocal invitation, requiring inquiry "before continuing the questioning to determine whether [the] apparent change of position was the product of intelligence and understanding or of ignorance and confusion." Nielsen, 392 F.2d at 853; Millican, 300 N.E.2d at 363 (quoting Nielsen ). Additionally, in Heldt, the defendant, upon being advised of his Miranda rights, "told [the FBI agent] he understood his rights but did not wish to waive them, that he refused to sign the waiver form, and that he told [the FBI agent] he did not wish to answer questions." 745 F.2d at 1276 (emphases added). It was under these circumstances that the Heldt court held that the FBI agent's "subsequent exhortation to 'answer questions anyway' was improper[,]" and the prosecution had failed to sustain its burden of proving a knowing and voluntary waiver. Id. at 1278.
As for Coleman and Van Dusen, Coleman involved the waiver of the right to counsel in the context of a lineup wherein the defendant refused to execute a statement acknowledging that he had been informed of the right to counsel. 401 N.Y.S.2d 57, 371 N.E.2d at 822. In Van Dusen, the defendant was given an "advice of rights" form to read prior to questioning but was not orally advised of his rights. 431 F.2d at 1279-80. The defendant refused to execute the waiver of rights portion of the for
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