Opinion
No. 12680.
September 21, 1972.
Appeal from the Third District Court, Salt Lake County, Bryant H. Croft, J.
D. Gilbert Athay, Salt Lake Legal Defenders, Salt Lake City, for defendant and appellant.
Vernon B. Romney, Atty. Gen., David S. Young, William T. Evans, Asst. Attys. Gen., Salt Lake City, for plaintiff and respondent.
This is an appeal from a conviction of the crime of rape. There is only one assignment of error, and that has nothing to do with guilt or innocence of the defendant. He says that it was error for the court to admit in evidence a confession made in violation of his Fifth Amendment privilege against self-incrimination.
The victim testified to the rape and testified that she could distinguish the features of her assailant, although he wore a stocking mask at the time of the crime. At a pretrial line-up and again at the trial she identified the defendant as the one who committed the crime.
The arresting officer advised the defendant of his so-called Miranda rights, whereupon the defendant asked if he could call an attorney. The arresting officer told him he could call an attorney but would have to wait until the booking procedure was completed. Defendant then asked why he was being held, and the arresting officer told him rape, based upon identification at the line-up. Defendant then voluntarily said, "I don't see how anybody could identify me with a silk stocking over my face."
Sometime later two other officers came to the jail with the fruits of a lawfully conducted search of the defendant's home and garage, which included a nylon stocking stuffed inside a glove liner in defendant's garage. These officers saw the defendant in the booking area of the jail, and not knowing of the conversation between him and the arresting officer, they gave him the so-called Miranda warning and asked him if he wanted to talk. The defendant replied that he did and then and there voluntarily confessed to the crime of rape.
The statements made by the defendant were properly admitted in evidence, and the judgment and sentence of the trial court should be and are affirmed.
CALLISTER, C. J., and HENRIOD, TUCKETT and CROCKETT, JJ., concur.