(dissenting) — Whether we consider the trial court's conclusion of law No. 1 a finding of fact or a conclusion of law, it does not lend support to the majority's opinion. To reverse the trial court we must be able to say that the trial judge found that the State sustained its burden of proving by a preponderance of the evidence that the *671defendant knowingly, voluntarily and intelligently waived his Miranda rights,2 including the right to counsel. State v. Gross, 23 Wn. App. 319, 597 P.2d 894 (1979). The difficulties, as I view them with the majority opinion, are threefold: (1) it misconstrues the legal basis upon which the trial court suppressed the evidence; (2) it then takes out of context a statement, viz., "that the defendant knowingly and voluntarily waived counsel ..." and then attempts to justify a desired result; and (3) based as it is on an inference, the outcome derives from a usurpation of the function of the trier of fact on the basis of a record inadequate for such a deduction.
Neither State v. Boggs, 16 Wn. App. 682, 559 P.2d 11 (1977) nor State v. Haynes, 16 Wn. App. 778, 559 P.2d 583 (1977) imposes a "per se" rule prohibiting a defendant from constitutionally waiving his previously asserted right to counsel. Both cases recognize that despite a prior request for an attorney a defendant can voluntarily waive the right to counsel. The rule announced in Boggs is: "[Office an attorney is requested, questioning must desist until the individual has received the assistance of counsel, unless of course he chooses to voluntarily waive his prior demand for an attorney." (Italics mine.) State v. Boggs, supra at 688. When we consider the precise holdings in Boggs and Haynes, the trial court's conclusion of law No. 1 is read as a correct application by the trial court of a "totality of circumstances test."
The majority seizes on the out-of-context sentence and canvasses the testimony in the record to support its inference that a waiver was made. CR 3.5 imposes upon the trial court the burden of making a record that will clearly apprise the appellate court of the basis of the trial court's ruling. Findings of fact and conclusions of law made by the trial court here and the trial court's oral decision and memorandum decision fail to resolve the seeming conflict *672between the opening sentence and the balance of the conclusion.
The question is not whether there is a "per se" rule prohibiting a defendant from constitutionally waiving his prior asserted rights, but the issue remains whether from the particular facts and circumstances surrounding this case, including the background experience and conduct of the accused, the State proved by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his right to counsel. I cannot find the trial court's answer from the record before us.
I would remand this case to the trial court for an express finding whether the State has sustained the burden of proving that the defendant voluntarily waived his right to counsel after requesting an attorney.
As an appellate court we cannot weigh the evidence or try the facts. In re Sego, 82 Wn.2d 736, 739-40, 513 P.2d 831 (1973). The so frequent appearance of this admonition, like Jeremiah's remonstrances, in appellate opinions underscores not only the frequency of its breach, but also the importance of its observance.
I respectfully dissent.
Reconsideration denied August 16, 1979.
Appealed to Supreme Court December 20, 1979.
Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974 (1966).