Opinion
No. 59194-1-I.
February 11, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-1-08419-3, Theresa B. Doyle, J., entered October 30, 2006.
Affirmed by unpublished per curiam opinion.
Michael Nute appeals his conviction for one count of first degree robbery, contending that the trial court erred by admitting evidence of his custodial statements and refusing to instruct the jury that it could convict him of the lesser included offense of first degree theft. Because the record demonstrates that Nute was advised of and acknowledged his Miranda rights before voluntarily making statements to police officers and a rational jury could not find from the evidence that Nute committed only first degree theft, we affirm.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
FACTS
On July 18, 2007, a man entered the Burien branch of the Bank of America and presented a teller with a written note stating: "[F]ifties and [H]undreds. Nobody gets hurt! . . . Now." At first the teller was unsure what was happening and asked the man how she could help him. He did not reply, but nodded at the note. Then realizing that he was attempting to rob the bank, the teller handed over all the fifty dollar bills she had in her drawer. After taking the money, the man left the bank, got into the passenger seat of a car waiting outside and left the area. Once the man left the bank, the teller pushed her security button to alert the police.
Police obtained surveillance recordings of the robbery from the bank's security cameras and still photographs from those recordings were later televised on the local news. A woman who saw these photographs on the news called police and identified the robbery suspect as her stepbrother, Michael Nute. Police then showed photographic montages to the teller and another bank employee who both identified Nute as the robber.
Nute was arrested shortly thereafter by Officer Nicole Freutel. Freutel read him his Miranda rights at the time of arrest and then drove him to the precinct. Nute told the officer he understood his rights and said nothing during the drive to the precinct.
Approximately an hour and a half later, police detectives James Rodgers and Dag Aakervik questioned Nute at the precinct. According to the detectives, Rodgers reminded Nute that he had been previously advised of his Miranda rights and Nute acknowledged having been read them. The detectives then confronted him with photographs of himself inside the bank and told him that both his stepsister and two bank tellers identified him as the robber. Nute then identified himself in the photographs, signed the photographs, and gave a detailed description of his involvement in the robbery. He also gave a written waiver of his Miranda rights and a written statement describing the robbery.
Nute was released from custody before the prosecutor's office filed charges. He did not appear for his arraignment, and several months later was stopped for a traffic violation in Oregon by a sheriff's deputy, Sergeant John Ward. After Nute gave two false names, Ward arrested him, read him his Miranda rights, and asked him if he understood them and if he had any questions. Nute replied that he understood his rights and did not have any questions, and then told Ward that he gave the false names because he had warrants. When Ward told Nute that he should identify himself, Nute replied: "You're going to like this, I'm wanted for bank robbery." Ward then reminded Nute that he had the right to remain silent, but Nute proceeded to provide details of the robbery.
Nute was then extradited to Washington and tried on one count of first degree robbery. Nute requested a jury instruction on the lesser included offense of first degree theft, which was denied. The jury found him guilty as charged.
DISCUSSION I. Custodial Statements
Nute first contends that the trial court erred by admitting evidence of his custodial statements. He contends that he did not waive his right to remain silent and the statements he made to the Seattle detectives and to Sergeant Ward in Oregon were therefore inadmissible. He asserts that while he told both arresting officers that he understood his rights, he did not expressly or otherwise affirmatively waive them. He challenges the trial court's factual findings that Detective Rodgers asked him if he recalled being advised of his rights and that he answered yes, and contends that his mere act of responding to both the detectives' interrogation and Sergeant Ward's question does not establish a waiver of his Fifth Amendment right to remain silent.
Nute's challenge to the trial court's factual findings fails. If challenged, findings of fact entered following a CrR 3.5 hearing are verities on appeal when supported by substantial evidence in the record. Evidence is substantial when it is sufficient to persuade a fair minded, rational person of the truth of the finding. Here, the trial court's findings are supported by both Rodgers' and Aakervik's testimony that Rodgers reminded Nute he had been advised of his rights and Nute acknowledged he had been advised. While Nute's testimony disputes this fact, credibility determinations are left to the trier of fact, and we will not disturb those findings on appeal.
State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997).
State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990); State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992). We note that in any event, whether or not the detective reminded Nute that he had already been advised of his rights is of no consequence here: the record is undisputed that Freutel advised him of his rights and he acknowledged them before he spoke to the detectives. Nute provides no authority that required the detectives to remind him of this fact.
Nute also challenges the court's conclusion of law that he waived his Miranda rights. We review a trial court's conclusions of law de novo. To use a defendant's custodial statement at trial, the State must establish that the defendant was advised of, understood, and waived his rights to remain silent and speak with an attorney. A valid waiver need not be expressly made by a suspect; it may also be implied from the facts of a custodial interrogation. Standing alone, the fact that a statement was made is insufficient evidence to establish a valid waiver. But an implied waiver may be established when the record shows that a defendant "understood his rights and volunteered information after reaching such understanding" or that a defendant's answers were "freely and voluntarily made without duress, promise or threat and with a full understanding of his constitutional rights."
State v. Acrey, 148 Wn.2d 738, 745, 64 P.3d 594 (2003).
Miranda v. Arizona, 384 U.S. at 478-79.
State v. Terrovona, 105 Wn.2d 632, 646, 716 P.2d 295 (1986).
Id. at 646-47.
Here, the record shows that Nute understood his rights when he admitted to the detectives that he was involved in the robbery. Officer Freutel advised of him of his Miranda rights at arrest, he acknowledged those rights, he never expressed a desire to remain silent or speak with counsel, and neither detective made any threats or offered him any promises. After Freutel advised him of his Miranda rights, Nute voluntarily spoke to the detectives when they showed him the incriminating bank photograph and told him they believed he was involved in the robbery. Nute also voluntarily made statements to Sergeant Ward after being advised his Miranda rights and acknowledging them, and made additional statements about the details of the robbery even after Ward reminded him again that he had the right to remain silent.
Nute does not challenge the trial court's findings of fact about the statements made to Sergeant Ward. They are therefore verities on appeal. Broadaway, 133 Wn.2d at 131.
In Terrovona, the court found an implied waiver under similar circumstances when the defendant had never been specifically asked whether he would waive his rights, yet voluntarily made incriminating statements after being confronted with the fact of the victim's death. We therefore find no error in the trial court's ruling that Nute waived his right to remain silent when making statements to both the Seattle detectives and the Oregon officer. The trial court properly admitted the evidence of his custodial statements.
State v. Terrovona, 105 Wn.2d 632, 716 P.2d 295 (1986).
II. Lesser Included Instruction
Nute also challenges the trial court's refusal to instruct the jury on the lesser included offense of first degree theft. As set forth in State v. Workman, a defendant is entitled to an instruction on a lesser included offense when (1) each of the elements of the lesser offense is necessarily an element of the charged offense (the legal prong) and (2) the evidence in the case supports an inference that only the lesser crime was committed (the factual prong). Both the legal and factual prongs must be met before the trial court may give a lesser included instruction.
90 Wn.2d 443, 447-48, 584 P.2d 382 (1978).
Here, the trial court ruled that the legal prong was not met and denied Nute's request for a lesser included instruction on that basis, noting that the court need not reach both prongs if one was not satisfied. But at the State's insistence that the court make a finding on the factual prong for the record, the court ruled that the factual prong was met, without further elaboration. We disagree with the trial court's legal conclusion that the factual prong was met and affirm on that basis.
See LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027 (appellate court may affirm on any basis supported by the record even if the trial court did not consider the argument), cert. denied, 493 U.S. 814 (1989).
Despite the trial court's finding to the contrary, the evidence does not support an inference that only first degree theft was committed. "`It is not enough that the jury might simply disbelieve the State's evidence. Instead, some evidence must be presented which affirmatively established the defendant's theory on the lesser included offense before an instruction will be given.'" The evidence here establishes that Nute used a threat of force to take the property, and he points to nothing in the record that would dispute this fact and support an inference that only a first degree theft was committed.
State v. Berlin, 133 Wn.2d 541, 546, 947 P.2d 700 (1997) (quoting State v. Fowler, 114 Wn.2d 59, 67, 785 P.2d 808 (1990)).
A threat, no matter how slight, that induces the owner to part with the property is sufficient to sustain a robbery conviction. "No matter how calmly expressed, an unequivocal demand for the immediate surrender of the bank's money, unsupported by even the pretext of any lawful entitlement to the funds, is fraught with the implicit threat to use force." Here, the note was without question an unequivocal demand for the immediate surrender of the bank's money. It demanded money "[n]ow" and told the teller that "[n]obody gets hurt" if the demand was satisfied. Nor is there any dispute that the note induced the teller to part with the money: she testified that she did so because she was required to comply with a robber's demand. Nute fails to demonstrate that a jury could reasonably infer otherwise.
State v. Parra, 96 Wn. App. 95, 977 P.2d 1272, review denied, 139 Wn.2d 1010 (1999).
See State v. Collingsworth, 90 Wn. App. 546, 553, 966 P.2d 905 (1997), review denied, 135 Wn.2d 1002 (1998).
Nute contends that because the teller testified that she handed over the cash because it was what she was "trained" to do, this was evidence that she did not do so under threat of harm. We disagree. She also testified that the reason she was trained to comply with a robber's demands was to protect her safety, necessarily implying that such demands carry a threat of harm. She further testified that she did what the note instructed to avoid panic and protect her safety.
("You just follow what you are instructed to do. And hopefully it will go smoother than it otherwise would.").
Nute also contends that because the teller testified that she did not feel threatened, the jury could have found that Nute did not take the money by threat of force. We disagree. Viewed in context, her testimony that she did not feel threatened at the time simply demonstrates that she maintained her composure in complying with Nute's demand and that she was confident that following bank policy to cooperate with him would protect her safety. It does not diminish the fact that Nute used a threat of harm to induce her to give him the money. Nor does it otherwise establish that the money was not taken by threat of harm, as Nute contends.
Indeed on cross-examination, the teller testified that she believed the note was a "demand" note and that the reason she complied with it was because "it was for her safety . . . not to create panic" and to "just do what [he] demand[ed]." She further testified that she had some security items available to her such as an alarm button that would alert police and "die [sic] packs," which would set off a small explosion when the robber went through the bank door, but that she decided not to use the dye packs because she "was afraid that [Nute] might not take [the money] if he knew exactly about the die [sic] packs" and "that might cause more problems," so she "just did what the note said." She also testified that she did not push the security button until after he left because she did not want to alarm him by doing something out of the ordinary to reach for the button. Thus, her testimony demonstrates that Nute was threatening enough to prevent her from taking additional steps to stop him from leaving the bank with the money.
She explained that while money containing these dye packs did not look any different from regular money, the robber could feel the mechanism inside the money if he held it.
We affirm.