How have the courts treated the testimony of a government agent testifying as to the confession of an appellant?

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Notes:

1 Prior to the government agent's testifying as to the confession, counsel for appellant requested and was granted the right to question the witness on voir dire and did briefly inquire with reference to the Miranda requirements. When, in renewing his direct examination, the witness was then asked to relate his conversation with appellant, counsel objected "On the ground that I think we should have an offer of proof on the grounds that the total statement may be hearsay. There may be certain admissions but the total statement may very well be hearsay." There was no objection made on the ground that Miranda rendered the confession inadmissible. When, on cross-examination of the witness, further light was cast on the Miranda aspect no motion to strike was made.

2 Appellant, relying on People v. Fioritto, 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625 (1968), contends that his refusal to sign a written waiver should have barred further interrogation under Miranda. However, it is not clear from the record that appellant's refusal was directed to a waiver of his Fifth Amendment rights or to a simple written acknowledgment of his understanding of them. According to the testimony of the agent appellant was orally advised of his rights as enunciated in Miranda. He was asked if he understood his rights. He stated that he did. He was asked to read a written statement of his rights. He was then asked if he wished to sign the written statement for the purpose of indicating his understanding. "He said that he understood his rights but he did not wish to sign any forms whatever." Further, the testimony of the government agent, while far from clear, suggests that the confession was not the product of interrogation but was voluntarily initiated by the appellant. Had the problem now presented been raised at trial by a proper objection, these ambiguities could well have been resolved.

3 The judge took appellant's presentence report into consideration. At the close of trial he indicated that what he regarded as appellant's perjury would also be taken into consideration.

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