Opinion
No. 53133-6-I
Filed: March 7, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 03-1-00586-4. Judgment or order under review. Date filed: 08/29/2003. Judge signing: Hon. Charles S. French.
Counsel for Appellant/Cross-Respondent, Ronald Jay Meltzer, Attorney at Law, 1001 4th Ave Ste 2120, Seattle, WA 98154-1106.
Counsel for Respondent/Cross-Appellant, Constance Mary Crawley, Prosecutors Office, Snohomish Co Courthouse, 3000 Rockefeller Ave, Everett, WA 98201-4060.
Zachary David Poll was convicted for possession of a controlled substance. He challenges the admission of his statement identifying the substance as methamphetamine because he was not given complete Miranda warnings. He also challenges the constitutionality of his sentence. The admission of Poll's statement, though improper, was harmless error. The manner in which the sentence was imposed was unconstitutional. We affirm the conviction and remand for resentencing.
FACTS
Poll was convicted at a stipulated bench trial of possession of a controlled substance. When Officer Pruitt arrived at the scene of a call in Everett, WA, on January 4, 2003, Poll and Joseph Hughes were in an alley yelling at each other. Poll was pointing at and walking toward Hughes. Mrs. Chapman, Poll's ex-wife, was in the house. Officer Pruitt ordered both men to the ground and handcuffed them upon arrival of other officers. After listening to Hughes, Chapman, and Poll's versions of the events, Officer Pruitt believed Hughes and Chapman. Hughes and Chapman reported that Poll had repeatedly made concerning calls to their residence that day, and after they eventually disconnected the phone Poll came to the house, banged on the door, and screamed at Chapman. When Hughes went outside, Poll tried to hit him. Hughes defended himself, restrained Poll, and made him promise to leave. Poll promised to leave but when Hughes released him, he turned back and approached Hughes again. This was when Officer Pruitt arrived.
Officer Pruitt concluded that Poll's activity showed an escalating pattern that concerned him about Chapman's safety. He arrested Poll for assaulting Hughes and harassing Chapman. Officer Pruitt searched Poll incident to arrest and found something he thought was drugs. Officer Pruitt reported that he read Poll his constitutional rights from a department-issued rights card and that Poll waived his rights. Officer Pruitt reported further that I asked Poll what the substance was in the baggie and he replied `Meth, its Meth, because that's all I do'. He stated he forgot the drugs were in his pants pocket.
At a CrR 3.6 hearing, the trial court ruled that the arrest and subsequent seizure were supported by probable cause and ruled the seized evidence was admissible. Because Poll has not challenged this ruling, the constitutionality of the search and the admissibility of the seized evidence are not at issue. At a CrR 3.5 hearing, the trial court ruled that the defendant was properly given his Miranda warnings, waived his rights, and that his statement identifying the drugs on his person was admissible.
The trial court found Poll guilty of possession of a controlled substance at a stipulated bench trial. He was sentenced to 20 days confinement. Poll appeals.
ANALYSIS I. Admission of Statement
`Under Miranda v. Arizona, an individual in custody must be advised, among other things, . . . that if he cannot afford [an attorney], the court will appoint him an attorney prior to questioning.' State v. Hutton, 57 Wn. App. 537, 540, 789 P.2d 778 (1990) (citing State v. Rupe, 101 Wn.2d 664, 676, 683 P.2d 571 (1984)) (internal citations omitted). Miranda imposes a heavy burden of proof on the state to demonstrate a knowing and intelligent waiver of rights by the defendant. State v. Erho, 77 Wn.2d 553, 557, 463 P.2d 779 (1970) (citing Miranda v. Arizona, 384 U.S. 436, 475, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)). `For a statement to be admissible under Miranda, the State must establish by a preponderance of the evidence that the defendant, after being fully advised of his rights, knowingly and intelligently waived them.' State v. Haack, 88 Wn. App. 423, 435-36, 958 P.2d 1001 (1997).
Poll challenges the adequacy of Miranda warnings administered to him. At a CrR 3.5 hearing, Officer Pruitt testified to reading Poll the following Miranda rights:
Paraphrasing, I told him he had the right to remain silent. Anything he said could and would be used against him in a court of law. He had a right to an attorney and have him present with him while he was being questioned. And that he could decide at any time to exercise any of these rights and not make any statements.
Officer Pruitt further testified that he read the rights verbatim from a department-issued rights card that he carries with him. Officer Pruitt did not have the card with him during testimony. The card itself was not entered into evidence and its contents were not read into the record. Officer Pruitt testified that Poll was not incoherent, seemed to understand his rights, responded appropriately, and seemed to voluntarily waive his rights. Poll agreed to speak with Officer Pruitt, and identified the contents of the bag as methamphetamine. Poll was not asked to sign a written rights waiver. The trial court found that Poll was properly read his rights and waived them, and that his statements were admissible. As paraphrased by Officer Pruitt the warnings were insufficient, because they did not indicate that Poll was warned about the right to a court-appointed attorney if indigent. However, the officer also testified to reading the rights verbatim from a department-issued rights card. Although the card itself was not admitted into evidence and its contents were not read onto the record, the trial judge said he was `satisfied that the card contains the accurate Miranda warnings.' Poll challenges the trial court's conclusion that the card contained all prongs of the Miranda warnings. On the record in this case, the state did not offer direct proof that the department-issued rights card contained all the required warnings. Putting the card or its contents in the record would have remedied the defect in proof of Miranda warnings created by Officer Pruitt's testimony. Instead, the court effectively took judicial notice that the department-issued rights card contained all the proper Miranda warnings. If supported by the record, and coupled with the officer's testimony, this would be sufficient evidence for the court's conclusion that Poll was properly warned. Under ER 201, the court can take judicial notice of certain adjudicative facts:
A judicially noticed fact must be one not subject to reasonable dispute and that is either (1) generally known within the territorial jurisdiction of the trial court, or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
Here, the record contains no basis to establish that the card itself is of such general knowledge to permit judicial notice of its contents, nor did the trial judge make a record of such regular use of the card in the courtroom to possibly allow judicial notice. Judicial notice in this case was not supported by the record.
Even though a circumstance may arise where notice of the contents of the card would fall within the scope of ER 201(b), it is clear that the better practice is to admit the card into evidence or read its contents into the record. Neither practice would invite appellate review.
Here neither direct proof nor judicial notice established that all the required Miranda warnings were provided. Thus, the trial court erred in finding that Poll knowingly and intelligently waived his rights and in admitting Poll's statement.
However, the trial court's error in admitting Poll's statement is harmless. An error is harmless under the constitutional standard if the reviewing court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985). Because this was a stipulated bench trial, the judge, not the jury, was the fact finder. The reviewing court must look only at the `untainted' evidence to determine if that evidence is so overwhelming that it necessarily leads to a finding of guilt. Guloy, 104 Wn.2d at 425.
Omitting Poll's statement, the remaining untainted evidence about the nature of the substance includes the Washington State Patrol Crime Laboratory Report finding that `A white powder weighing 0.3 gram was found to contain METHAMPHETAMINE.' The record also includes the report of the third officer on the scene that `Officer Pruitt found a small plastic baggie in [Poll's] right front pocket. Inside of it were several small clear rocks. I believed the substance to be Methamphetamine. I tested the substance using a NIK testing kit. I received a positive indication for the presence of Methamphetamine.' In addition, the record includes Officer Pruitt's report that `I located a small baggie in the right front pants pocket of Poll. This baggie contained a white substance that I believed through training and experience to be a controlled substance. . . . The substance field-tested positive for methamphetamine.'
The evidence overwhelmingly and necessarily leads to a finding of guilt beyond a reasonable doubt even after omitting Poll's statement identifying the substance as methamphetamine. Therefore, any error in admitting Poll's statement was harmless.
II. Sentencing
At the sentencing hearing, the judge asked Poll about his employment status. Poll said that he was currently busy as a self-employed landscaper, but that business would slow down around November or December. The judge imposed a 5-day sentence to be served starting immediately. This 5-day term was written into the Judgment and Sentence. When defense counsel asked if the trial court would consider imposing community service in lieu of jail time, the court said
I want to make a statement with Mr. Poll, but I don't necessarily want to make a big statement. If he goes into custody, he's going to be out, by my calculation, Saturday or Sunday. . . . Now, I also considered holding off on the jail time until November, but then I was going to impose more jail time. . . . What I'm trying to do is to impose a short period in jail to emphasize with Mr. Poll that he doesn't do what he did in this case.
Including time served and good time credit, the court anticipated that Poll would serve approximately three days in confinement.
Poll then sought an appeal bond from the Court. The court responded, `Let me do it this way, [counsel.] I will give you an appeal bond, but it isn't going to be for three days in jail; okay?' The court then continued, I don't want to penalize or consider that I'm penalizing Mr. Poll as a consequence of exercising his appeal rights, because that's not my intent. My intent is to emphasize, with a brief time in jail, Mr. Poll's criminal behavior. I want to sanction that, but I just want to do it in a very brief concentrated sort of fashion. If I grant the appeal bond and put that off into the indefinite future, my concern is that it loses all of its efficacy at that point.
So I'd be inclined — I'll grant your appeal bond, but I'm going to change the jail term and the provisions of that. Alternatively, I'll stay with what I've done, but I'm not going to grant the appeal bond.
Poll said that he `would rather that you revise the sentence, your Honor, and have the appeal bond.' In response the trial court said, `Okay. That being the case, let me go back and amend my sentence. I am going to accept the recommendation of the prosecutor for 20 days in jail.' The Judgment and Sentence was modified to reflect this change.
Poll argues that this increased sentence was vindictive and therefore violated his due process rights. We disagree. Under some circumstances, a rebuttable presumption of vindictiveness arises when a court imposes a more severe sentence after a successful appeal. State v. Parmelee, 121 Wn. App. 707, 710, 90 P.3d 1092 (2004) (citing State v. Franklin, 56 Wn. App. 915, 920, 786 P.2d 795 (1989)). The presumption of vindictiveness arises only when there is a "reasonable likelihood' that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority.' Id. at 711 (quoting Alabama v. Smith, 490 U.S. 794, 799, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989)). `Concerns about judicial vindictiveness arise when the judge fully considers a sentence and renders a decision, and then, after a successful appeal, changes the sentence without explanation.' Id. at 711 (citing Alabama v. Smith, 490 U.S. 794, 802, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989)).
The Parmelee doctrine is not applicable here; this is not a case where a defendant was sentenced to a greater penalty after a successful appeal. By contrast, the sentence here was modified during the initial, original sentencing hearing. Therefore, the presumption of vindictiveness under Parmelee does not arise. Neither does the Parmelee doctrine apply by analogy. Prior to the first mention of appeal by the defendant, the trial court said on the record that had it postponed the start of the sentence to a later date, it would have imposed a greater sentence. It was only after the court made this comment that defense counsel first raised the issue of appeal. Vindictive sentencing implies a retaliatory motive. On the contrary, the basis for the longer sentence here was not the fact that appeal would be filed, but the judge's concern with the effectiveness of the sentence based on when confinement would commence. The longer sentence range was not imposed solely in response to the request for the appeal bond. Thus there is no `reasonable likelihood' that actual vindictiveness was the cause of the increased sentence.
Nevertheless, the imposition of a longer sentence in this case impermissibly chilled the exercise of the fundamental right to appeal a criminal conviction. Under the Washington State Constitution, criminal defendants `shall have the right . . . to appeal in all cases.' Wash. Const. art. I, sec. 22. The right to appeal is absolute, and no penalty can be imposed for its exercise. City of Seattle v. Brenden, 8 Wn. App. 472, 474, 506 P.2d 1314 (1973). It is `patently unconstitutional' to chill the exercise of constitutional rights by penalizing those who choose to exercise them. United States v. Jackson, 390 U.S. 570, 581, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968). `A person cannot be influenced to surrender a constitutional right by imposing a penalty on its use.' State v. Eide, 83 Wn.2d 676, 679, 521 P.2d 706 (1974) (citing Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965); Jackson, 390 U.S. 570). `Legitimate objectives may not be pursued by means that needlessly chill the exercise of basic constitutional rights.' Eide, 83 Wn.2d at 682. When the basis for deferral of confinement, and therefore the basis for a longer sentence, is the filing of an appeal, the defendant is impermissibly put in the position of choosing either a shorter sentence or the right to appeal. In this case, the defendant made that express choice: the offer from the trial judge was `I'll grant your appeal bond, but I'm going to change the jail term and the provisions of that. Alternatively, I'll stay with what I've done, but I'm not going to grant the appeal bond.' The defendant responded by choosing his right to appeal: `My client would rather that you revise the sentence, your Honor, and have the appeal bond.' Because the defendant had to choose to either have a shorter sentence or exercise the right of appeal, there was an impermissible burden on his fundamental right to appeal. It does not matter that the defendant in this case was not actually deterred from exercising his right; the burden on the right was impermissible. We reverse the 20-day sentence and remand to the trial court to reinstate the original 5-day sentence.
We affirm the defendant's conviction for possession of a controlled substance. We hold that the sentence imposed on the defendant impermissibly chilled the exercise of his fundamental right to appeal. We remand for resentencing consistent with this opinion.
GROSSE and COLEMAN, JJ., concur.