Opinion
No. 60637-9-I.
November 24, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-10363-3, Gregory P. Canova, J., entered September 21, 2007.
Affirmed by unpublished per curiam opinion.
James Simmons challenges his conviction for possession of cocaine with intent to deliver. He contends that the trial court erred in admitting his statements to a deputy sheriff and in denying his motion to substitute counsel. We reject these arguments because Simmons's statements were voluntarily made and he did not have an irreconcilable conflict with his counsel.
FACTS
On November 7, 2006, around 5:30 p.m., King County Deputy Sheriff James Schrimpsher was conducting surveillance in Seattle's University District neighborhood. Schrimpsher testified that he saw Simmons make what appeared to be two hand-to-hand drug transactions. After the second apparent drug deal, Schrimpsher approached Simmons to detain him. Schrimpsher testified that he quickly gave Simmons Miranda warnings and that Simmons told him he understood his rights but not why he was being detained. Before Schrimpsher could ask Simmons any questions or pat him down, Simmons attempted to break away. The two wrestled on the ground, and Schrimpsher used his pepper spray and stun gun on Simmons. Schrimpsher testified that he saw Simmons slough four rocks of cocaine onto the ground during their struggle.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Ultimately, with the help of additional police officers, Schrimpsher was able to subdue Simmons, and medics from the fire department were called to treat Simmons. After they were finished, Simmons was placed in the back of a patrol car. Schrimpsher stated that both he and his sergeant again advised Simmons of his Miranda rights. According to Schrimpsher, Simmons admitted that he possessed cocaine and that he had resisted because he did not want to go to jail. Schrimpsher denied making any threats or promises to induce Simmons to speak with him and said Simmons did not ask for an attorney or have any questions about his rights. Simmons did not make a written statement.
Simmons disputed Schrimpsher's version of events during pretrial hearings where he contested the admissibility of his statements. Simmons denied making any drug transactions. He asserted that he was merely giving someone directions when Schrimpsher suddenly accosted him. He testified that he did not attempt to flee, but that he tried to get on his knees because he thought Schrimpsher was trying to search inside his pants and he was afraid of being exposed in public as he was not wearing underwear. According to Simmons, Schrimpsher never read him his Miranda rights and he never admitted to possessing cocaine.
The trial court entered written findings of fact and conclusions of law. The court found that when Schrimpsher initially approached Simmons, he immediately gave him Miranda warnings and that Simmons indicated he understood his rights. The court found that there was an extensive struggle, during which Simmons threw four small rocks onto the ground that later tested positive for cocaine. When Simmons was eventually taken into custody, he was placed in the rear of a patrol car. The court found that Schrimpsher again advised Simmons of his Miranda warnings, after which the defendant admitted that he was in possession of crack cocaine. The court concluded that Simmons's statements were admissible because he knowingly, intelligently, and voluntarily waived his rights.
Simmons assigns error to the trial court's failure to enter findings of fact and conclusions of law pursuant to CrR 3.5(c). But the trial court did enter the required findings and conclusions. Because of a clerical error, there was a delay in placing the findings in the electronic court records system. Simmons does not show that he was prejudiced by this delay. Therefore, his assignment of error is without merit. See State v. Alvarez, 128 Wn.2d 1, 19, 904 P.2d 754 (1995).
Prior to trial, Simmons also made two motions to substitute counsel. On June 4, 2007, Simmons requested a new attorney. While acknowledging that his assigned attorney was "probably a good attorney," he complained that she had not e-mailed him court dates, which resulted in his failing to appear. The court noted that it was Simmons's responsibility to keep track of his court dates and his failure to do so did not provide a basis to substitute counsel. Simmons's attorney argued that her client "probably should have new counsel because we have not been communicating throughout this time." 1 Report of Proceedings (June 4, 2007) at 7. But the court was concerned about the resulting delay if new counsel were appointed given the age of the case, and it told Simmons to try to work with his attorney.
On August 7, 2007, Simmons again moved for new counsel. He complained that his attorney did not have enough time to dedicate herself to his case and that he did not trust her because she had not e-mailed him his court dates. His attorney again supported the motion, noting that Simmons had made negative comments toward her and that he had only recently begun communicating with her regarding the investigation. The court found no basis to substitute counsel and denied the motion.
Following a jury trial, Simmons was convicted of possession with intent to deliver cocaine. The court imposed a standard-range sentence. Simmons now appeals.
ANALYSIS
The Fifth Amendment states, "No person . . . shall be compelled in any criminal case to be a witness against himself. . . ." U.S. Const. amend. V. When law enforcement officers take a person into their custody for interrogation, they may quickly overbear the person's will. Miranda, 384 U.S. at 444. Under these circumstances, any statements the person makes are deemed to be compelled in violation of the Fifth Amendment unless the State can show they were preceded by a knowing, voluntary, and intelligent waiver of the privilege. State v. Sargent, 111 Wn.2d 641, 648, 762 P.2d 1127 (1988). Miranda warnings are used to ensure a voluntary waiver of the right to remain silent. Sargent, 111 Wn.2d at 648. Statements obtained in violation of a defendant's Fifth Amendment rights must be suppressed. State v. Warner, 125 Wn.2d 876, 888, 889 P.2d 479 (1995).
The Washington Constitution contains a similar provision stating, "No person shall be compelled in any criminal case to give evidence against himself." Wash. Const. art. I, §§ 9.
Simmons argues that the police did not obtain a valid waiver of Miranda rights before questioning him, so the trial court erred by not suppressing his statements. In reviewing a trial court's ruling following a suppression hearing, we determine if substantial evidence supports the court's factual findings and whether the findings support its conclusions of law. State v. Broadaway, 133 Wn.2d 118, 130-31, 942 P.2d 363 (1997). Thus, the issue here is whether the court's conclusion that Simmons knowingly, voluntarily, and intelligently waved his Miranda rights is supported by the court's findings and the record.
To determine whether a defendant's waiver is knowing, voluntary, and intelligent, the court must examine the totality of the circumstances under which it was made. State v. Parra, 96 Wn. App. 95, 99-100, 977 P.2d 1272 (1999). An express oral or written waiver is not necessary to establish a valid waiver. State v. Rupe, 101 Wn.2d 664, 678, 683 P.2d 571 (1984). But a waiver cannot be inferred merely from the fact that the defendant ultimately confessed after he was advised of his rights. State v. Terrovona, 105 Wn.2d 632, 646, 716 P.2d 295 (1986). An implied waiver may be found where the defendant is informed of his or her Miranda rights, understands them, and chooses to volunteer information in the absence of duress, promise, or threat. Terrovona, 105 Wn.2d at 646-47.
Here, Simmons argues that the trial court erred in concluding he alidly waived his rights given the totality of the circumstances of his arrest. He emphasizes that he did not sign a written waiver and that Schrimpsher "tasered" and pepper sprayed him before he made his statements. But an express waiver — written or oral — is not required for there to be a valid waiver. Moreover, significant time passed between when Simmons fought with Schrimpsher and when he made his statements. Simmons was first treated by fire department medics, placed in the rear of a patrol car, and was then readvised of his Miranda rights. There was no evidence that Schrimpsher made any threats or promises to Simmons. Schrimpsher testified, and the court found, that he twice gave Simmons Miranda warnings and that Simmons indicated he understood his rights. There was no evidence that Simmons was under the influence of drugs, did not speak proficient English, or otherwise had difficulty understanding the Miranda warnings. Under these circumstances, the trial court did not err in finding that Simmons knowingly, intelligently, and voluntarily waved his rights. Accordingly, the court's ruling that Simmons's statements were admissible was proper.
Simmons also contends that the trial court erred in denying his motions for discharge of counsel. We review a trial court's denial of a motion to substitute counsel for an abuse of discretion. State v. Varga, 151 Wn.2d 179, 200, 86 P.3d 139 (2004). While an accused has the right to counsel under both the state and federal constitutions, he or she does not have an absolute right to choose any particular advocate. Varga, 151 Wn.2d at 200. A general loss of confidence or trust is insufficient by itself to justify substitution of counsel. State v. Schaller, 143 Wn. App. 258, 268, 177 P.3d 1139 (2007). A defendant "must show good cause to warrant substitution of counsel, such as a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant." State v. Stenson, 132 Wn.2d 668, 734, 940 P.2d 1239 (1997). We consider three factors when reviewing a trial court's decision on whether an irreconcilable conflict exists: (1) the extent of the conflict; (2) the adequacy of the inquiry; and (3) the timeliness of the motion. State v. Cross, 156 Wn.2d 580, 607, 132 P.3d 80 (2006).
Here, Simmons contends that his relationship with his counsel "completely collapsed." But "there is a difference between a complete collapse and mere lack of accord." Cross, 156 Wn.2d at 606. The record shows that Simmons was primarily upset that his attorney had not e-mailed him a reminder about his court dates and that after the court exhorted him to work with his appointed attorney, he resumed communications with her, providing her with leads to investigate for his defense. While the relationship was apparently strained at points, a general lack of trust between attorney and client is not sufficient to justify substitution of counsel. Schaller, 143 Wn. App. at 268. The trial court permitted Simmons and his attorney to speak to both motions for new counsel. Other than the dispute about e-mailed court dates, Simmons's complaints were general and vague. Based on the nature of the complaints, the trial court's inquiries were adequate. Further, the trial court properly considered the delays that would result from substitution. See In re Pers. Restraint of Stenson, 142 Wn.2d 710, 732, 16 P.3d 1 (2001) (weighing estimated 60-day delay for case on eve of trial against granting substitution motion). Under these circumstances, Simmons fails to demonstrate that the trial court abused its discretion in denying his motions for substitution of counsel.
For the foregoing reasons, we affirm.