                                                                              FILED 


                                                                         April 23, 2013 


                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )         No. 30412-4-III
                     Respondent,              )
                                              )
      v.                                      )
                                              )
ENRIQUE GONZALEZ MARTINEZ,                    )
                                              )         UNPUBLISHED OPINION
                     Appellant.               )


       SIDDOWAY,    J. ~ Emique Gonzalez Martinez appeals his conviction of third

degree rape, arguing that his inculpatory statements made to police should have been

suppressed because of the time and events that transpired between the initial advisement

of his Miranda l rights and the time of his admissions and recorded statement. The record

supports the trial court's finding of his knowing, voluntary, and intelligent waiver of

those rights. We affirm.




       1 Miranda   v. Arizona, 384 U.S. 436,86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 30412-4-111
State v. Gonzalez Martinez


                      FACTS AND PROCEDURAL BACKGROUND

      At about 2 a.m. on July 9, 2011, Detective Jeff Ward traveled to the home of

Enrique Gonzalez Martinez2 with Officer Ron Wilson to arrest Mr. Martinez on charges

of third degree rape. The victim, an adult woman, had been visiting her grandmother the

prior evening when Mr. Martinez, a friend of her grandmother's, asked her to drive him

to get some beer. While taking him on the errand, the victim claimed that Mr. Martinez

fondled her breasts and digitally penetrated her vagina over her continuing objections and

resistance. After Mr. Martinez left the grandmother's home, the victim, crying and upset,

revealed what had happened. She and her grandmother traveled to the hospital, where a

sexual assault examination was conducted and police were called.

       When the officers arrived to arrest Mr. Martinez, Detective Ward mentioned the

name of the victim and asked if Mr. Martinez knew her; Mr. Martinez replied that he did.

While getting into the patrol car, Mr. Martinez asked the officers, "[I]s this because she

said 1 raped her?" Report of Proceedings (RP) at 26. Detective Ward had said nothing to

elicit this comment and did not respond.

      The officers' first stop with Mr. Martinez was the hospital, where, pursuant to a

warrant, Mr. Martinez's DNA (deoxyribonucleic acid) and fingernail clippings were

taken. En route to the hospital, Detective Ward read Mr. Martinez his Miranda rights.



       2   Mr. Gonzalez Martinez refers to himself as Henry Martinez.

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No. 30412-4-111
State v. Gonzalez Martinez


The detective did not otherwise speak to Mr. Martinez while on the ride to, or while at,

the hospital.

       Upon leaving the hospital, the officers transported Mr. Martinez to the jail for

booking. No questioning took place during the transport. As Detective Ward was

collecting Mr. Martinez's property at the booking window, he asked if Mr. Martinez

knew why he was being arrested. Mr. Martinez responded that it was because he was

"stupid." RP at 28. When Detective Ward asked him what he meant, Mr. Martinez said

that he had touched the victim's genitals and kissed her breasts.

       After Mr. Martinez made these statements, Detective Ward asked ifhe wanted to

give a recorded statement and Mr. Martinez answered "yes." Id. At the outset of

recording Mr. Martinez's statement, the detective re-read him his Miranda rights and Mr.

Martinez stated he understood his rights and wanted to talk. He answered questions and

admitted to sexual contact, specifically digital penetration of the victim's vagina. He

claimed the conduct was consensual. Between Detective Ward's initial contact with Mr.

Martinez at the Martinez home and the beginning of the recorded statement only 40

minutes, approximately, had elapsed.

       At the erR 3.5 hearing on the admissibility of the statements, Mr. Martinez's

lawyer did not dispute the 40-minute time frame but argued that 40 minutes was enough

time, together with the intervening events, to vitiate the effectiveness of the Miranda

warning. The trial court rejected the argument and concluded that the "time lapse

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No. 30412-4-111
State v. Gonzalez Martinez


between the initial advice of rights and questions at the jail did not require another advice

of rights" and that "the defendant's statements to Detective Ward ... and the recording

thereof, were the product of the defendant's knowing, voluntary, and intelligent waiver."

Clerk's Papers at 70. Mr. Martinez was later convicted in a jury trial. He appeals.

                                        ANALYSIS

       Mr. Martinez argues that the lapse of time and intervening circumstances required

that Detective Ward re-administer Miranda warnings before questioning him at the

booking window, that the admissions he made at the booking window tainted his

subsequent recorded statement, and that the error was not harmless. The relevant facts

are all undisputed; at issue are only the trial court's conclusions of law. Mr. Martinez

argues that the passage of time, together with the change in locations from his home, to

the hospital, and to the jail, was inherently coercive and would have caused him to forget

about the initial Miranda warnings.

       When a person is subject to custodial interrogation (undisputed here), any

statements made are deemed to be compelled in violation of the Fifth Amendment unless

the State can show that before the statements there was a knowing, voluntary, and

intelligent waiver of the defendant's Fifth Amendment privilege. State v. Sargent, 111

Wn.2d 641,648,762 P.2d 1127 (1988). The State must show a waiver of Miranda rights

by a preponderance of the evidence. State v. Athan, 160 Wn.2d 354,380, 158 P.3d 27




                                              4

No.30412-4-III
State v. Gonzalez Martinez


(2007). Statements obtained in violation of the Fifth Amendment must be suppressed.

State v. Warner, 125 Wn.2d 876, 888, 889 P.2d 479 (1995).

       To determine whether a defendant has knowingly, voluntarily, and intelligently

waived his rights, the court must examine the totality of the circumstances under which

the waiver was made. State v. Parra, 96 Wn. App. 95,99-100,977 P.2d 1272 (1999).

An express oral or written waiver is not necessary to establish a valid waiver. State v.

Rupe, 101 Wn.2d 664,678,683 P.2d 571 (984). However, a waiver cannot be inferred

from the fact that the defendant ultimately confessed after being advised of his rights.

State v. Terrovona, 105 Wn.2d 632,646,716 P.2d 295 (1986). An implied waiver may

be found where the defendant is informed of his Miranda rights, understands them, and

chooses to volunteer information in the absence of duress, promise, or threat. Id. at 646­

47. "[A]ny evidence that the accused was threatened, tricked, or cajoled into a waiver

will, of course, show that the defendant did not voluntarily waive his privilege."

Miranda, 358 U.S. at 476.

       The lapse of time between the administration of Miranda warnings and the

suspect's statement is one factor considered in determining the validity of the waiver.

United States ex rei. Patton v. Thieret, 791 F.2d 543,547-48 (7th Cir. 1986). No rigid

rule exists relating to Miranda and the pa~sage of time or a break in events. Medeiros v.

Shimoda, 889 F.2d 819,824 (9th Cir. 1989). "[Once] a defendant has been adequately

and effectively warned of his constitutional rights, it is unnecessary to give repeated

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No.30412-4-III
State v. Gonzalez Martinez


recitations of [Miranda] prior to taking of each separate in-custody statement." State v.

Vidal, 82 Wn.2d 74, 78, 508 P.2d 158 (1973).

       Mr. Martinez directs our attention to United States v. Gillyard, 726 F.2d 1426,

1427 (9th Cir. 1984). In that case the defendant, a postal carrier, was questioned at work

by postal inspectors about the theft of some checks from the mail. He was asked if he

would be willing to take a polygraph test and said that he would. About a month later,

the inspectors returned and the defendant again agreed to provide the polygraph and was

taken to the site where it would be administered. There, he was introduced to the

polygraph examiner. Before the examination began, the polygraph examiner read him his

Miranda rights. The examination was conducted and, when it was completed, the

examiner informed him that the examination indicated he was being deceptive. After

speaking with the defendant further, the examiner left the room and the postal inspectors

returned. The inspectors questioned him for about another hour, without separately

informing him of his rights. At no point in the entire process was he told he was under

arrest. Eventually-and some two and a half hours after the polygraph examiner had

read the defendant his rights in anticipation of the polygraph-the defendant signed a

written confession.

       The district court suppressed the confession, finding that "the major problem in

the government's case was that the inspectors obtained the waiver of Gillyard's rights by

telling him that he would only be subjected to a polygraph test." Id. at 1428. The Ninth

                                             6

No. 304 12-4-III
State v. Gonzalez Martinez


Circuit upheld the suppression on appeal, concluding that while "[t]he district court might

have determined that under the totality of the circumstances the defendant had properly

waived his Miranda rights," it did not find a waiver, and "[b]ased on the record we

cannot say that the district court's decision was clearly erroneous." ld. at 1429-30.

       The circumstances here are different from Gil/yard in every material respect.

Mr. Martinez's dealings were with Detective Ward throughout. He was told at the outset

that he was under arrest. There was nothing about the stop at the hospital that would

have confused him about Detective Ward's role or purpose. The passage of time was

shorter. And of course here, the trial court determined that under the totality of the

circumstances Mr. Martinez did properly waive his Miranda rights before making his

inculpatory statement at the booking window.

       This case is much more like the many cases in which courts have found that the

passage of time or change in circumstances has not required a re-administration of

Miranda rights. See, e.g., Vidal, 82 Wn.2d 74 (defendant transferred by car from

Wallace, Idaho, to Tacoma, Washington, need not be re-Mirandized for each in-custody

statement); State v. Rowe, 77 Wn.2d 955,959,468 P.2d 1000 (1970) (statements made

within 48 hours after Miranda cannot be said to have been made without knowledge of

his rights); Thieret, 791 F.2d at 548 ("The passage of forty minutes does not require that

the Miranda warnings be given again.").




                                             7
No.30412-4-III
State v. Gonzalez Martinez


       The passage of time and changes in location did not require that the Miranda

warnings be re-administered. Mr. Martinez's statements at the booking window were

made following a valid waiver of his rights and were properly admitted.

       Having rejected Mr. Martinez's first argument, we need not reach his second and

third, both of which depend on a finding that his constitutional rights required

suppression of his statements made during booking.

       Affirmed.

       A majority of the panel has determined that this opinion will not be printed in the

Washington Appellate Reports but it will be filed for public record pursuant to RCW

2.06.040.



                                              Siddoway, J.

WE CONCUR:




Brown, J.




                                             8

