Opinion
No. 60006-1-I.
August 11, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-07459-5, Nicole Maclnnes, J., entered May 7, 2007.
Affirmed in part and remanded by unpublished per curiam opinion.
Ural G. Aminev appeals his conviction for forgery, contending that the trial court erred in admitting statements he made before he was read his Miranda rights. We affirm because Aminev gave the challenged statements in response to investigatory questions during a Terry stop and any reasonable jury would have reached the same verdict even without the admission.
We note that the charging document identifies appellant as "Virel Giniyatovich Aminev," while the appellate briefs refer to him as "Ural G. Aminev and Ural Aminev."
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
FACTS
On November 15, 2005, Aminev went to a U.S. Bank branch and asked teller Ellen Garrison to cash a typewritten check for $900 that was made out to him from Carter Dean Enterprises. Aminev told Garrison to call the number on the check to verify it, which she did. A woman answered the call and told Garrison that the check was legitimate and should be cashed.
But Garrison thought the check was suspicious because she had seen other checks written by Carter Dean Enterprises — a payee service for the Department of Health and Human Services — and noticed that this check looked different and was for substantially more money than was usual. Garrison called the number for Carter Dean Enterprises that the bank had on file, which differed from the phone number on the check. A Carter Dean Enterprises official told her that the check was not valid, that Aminev was not one of their clients, and to call the police. Garrison called the police and asked Aminev to sit in the lobby and wait, which he did.
King County Sheriff's deputies responded to the scene and detained Aminev. The first deputies on the scene did not conduct any investigation. Rather, they waited a short time until Deputies Tobin Corlis and James Schrimpsher arrived to take over. Deputy Schrimpsher went to speak with bank staff while Deputy Corlis spoke with Aminev. Deputy Corlis did not tell Aminev that he was being detained and was not free to leave.
Deputy Corlis told Aminev that the check he tried to cash was forged and asked him how he got it. Aminev stated that he had been gambling at a casino and had loaned a stranger $600. He said the man, whom he could not name or describe, then gave him the $900 check as repayment of the loan. Aminev could not remember the name of the casino where this occurred. Deputy Corlis did not believe Aminev's story. He concluded that probable cause existed, so he arrested Aminev.
Meanwhile, Deputy Schrimpsher got statements from bank employees from which he independently concluded that there was probable cause to arrest Aminev. At the police station, Deputy Schrimpsher interrogated Aminev after he was advised of hisMiranda rights. Aminev told Deputy Schrimpsher essentially the same story that he told Deputy Corlis at the bank.
Aminev went to trial on one count of forgery, in violation of RCW 9A.60.020(1)(a), (b), for attempting to cash a fraudulent check at a bank. Prior to trial, the court held a CrR 3.5 hearing to determine whether Aminev's statements to the police were admissible. At the close of the hearing, the court ruled that Aminev's statements at the bank before the police gave theMiranda warnings were admissible because he was not under arrest at the time and the warnings were not legally required. The court also found that Aminev did not understand the post-arrest Miranda warnings and ruled that his statements after he was taken into custody were not preceded by a knowing and intelligent waiver and were thus not admissible in the State's case in chief. But the court held that all of Aminev's statements were voluntary and could, therefore, be used to impeach him.
At trial, Deputy Corlis testified about his conversation with Aminev. Garrison also testified about her interaction with Aminev and the appearance of the check. Aminev testified on his own behalf. He told the jury essentially the same story that he told to Deputies Corlis and Schrimpsher. Aminev also stated that he wondered if the check was fake when he went to the bank, so he only asked the teller to verify it. On cross-examination, the State impeached Aminev by using some of his statements to Deputy Schrimpsher. The jury convicted Aminev as charged.
The court filed findings of fact and conclusions of law reflecting its pretrial rulings after this appeal was filed.
DISCUSSION
Aminev claims that the trial court erred by admitting the statements he made to Deputy Corlis before he was read hisMiranda rights. Under the Fifth Amendment of the United States Constitution, an individual has the right to be free from compelled self-incrimination while in police custody. To protect this right, law enforcement is required to provide Miranda warnings to a person in custody before that person is subjected to interrogation.
U.S. Const. amend. V; U.S. Const. amend. XIV;Miranda, 384 U.S. at 444; State v. Sargent, 111 Wn.2d 641, 647, 762 P.2d 1127 (1988).
Miranda, 384 U.S. at 479.
Whether a specific defendant must be advised ofMiranda rights, therefore, depends on whether the questioning is (1) custodial, (2) interrogation, and (3) by a state agent. Unless all three factors are present,Miranda warnings are not required. Here, only the first element is at issue. For the purposes ofMiranda, a suspect is in "custody" when his or her "freedom of action is curtailed to a `degree associated with formal arrest."` The question of "custody" is objective and focuses purely on whether a reasonable person interacting with police would conclude that they were in custody.
State v. Post, 118 Wn.2d 596, 605, 826 P.2d 172, 837 P.2d 599 (1992) (citing Sargent, 111 Wn.2d at 649-53).
Id.
Berkemer v. McCarty, 468 U.S. 420, 440, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983)); see also State v. Harris, 106 Wn.2d 784, 789-90, 725 P.2d 975 (1986), cert. denied, 480 U.S. 940 (1987).
State v. Lorenz, 152 Wn.2d 22, 36-37, 93 P.2d 133 (2004).
As such, a trial court's determination of whether a subject was in custody is reviewed de novo.
Id. at 36.
Not every contact between a police officer and a subject that leads to a limitation on the subject's freedom of movement constitutes a "custodial" situation. Courts have specifically held that an investigatory Terry stop is not custodial for the purposes of Miranda analysis even though it is a detention that results in a limitation on a person's freedom of action. "The fact that a suspect is not `free to leave' during the course of a Terry stop does not make the stop comparable to a formal arrest for purposes of Miranda." And when a Terry stop is justified, an officer "may ask a moderate number of questions to determine the identity of the suspect and to confirm or dispel the officer's suspicions without rendering the suspect `in custody' for the purposes ofMiranda./"
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
See, e.g., State v. Heritage, 152 Wn.2d 210, 218, 95 P.3d 345 (2004) (citing State v. Hilliard, 89 Wn.2d 430, 573 P.2d 22 (1977)).
State v. Walton, 67 Wn. App. 127, 130, 834 P.2d 624 (1992).
State v. Heritage, 152 Wn.2d 210, 219, 95 P.3d 345 (2004) (citing Berkemer, 46 U.S. at 439-40);see also State v. Marshall, 47 Wn. App. 322, 325, 737 P.2d 265 (1987) (a suspect "may be asked to identify himself and to explain his activities without the necessity of first givingMiranda warnings.").
Here, Aminev tried to cash a check that was unquestionably fraudulent. Thus, the deputies had reasonable suspicion to justify detaining Aminev while they investigated his possible involvement. As part of that detention, Deputy Corlis asked Aminev where he got the check, a question that could help clarify whether Aminev was involved in criminal activity. This noncoercive, investigatory inquiry occurred in a public lobby where Aminev had chosen to sit and wait before the officers arrived. He was not arrested, handcuffed, searched, or told that he was required to answer the deputies' questions. Therefore, as in State v. Walton, Aminev's detention was akin to a Terry stop and was not, in and of itself, comparable to a formal arrest requiring Miranda warnings.
See State v. Duncan, 146 Wn.2d 166, 172, 43 P.3d 513 (2002).
Walton, 67 Wn. App. at 130.
Furthermore, even if the trial court erred and Aminev's pre-Miranda statements should have been suppressed, the error was harmless. Erroneous admission of a statement in violation of Miranda is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error. To determine the probable outcome, the reviewing court must focus on the evidence that remains after excluding the tainted evidence.
State v. Ng, 110 Wn.2d 32, 38, 750 P.2d 632 (1988) (citing State v. Guloy, 104 Wn.2d 412, 425-26, 705 P.2d I 182 (1985), cert. denied, 475 U.S. 1020 (1986)).
State v. Thamert, 45 Wn. App. 143, 151, 723 P.2d 1204, review denied, 107 Wn.2d 1014 (1986).
Here, Aminev was convicted of forgery under RCW 9A.60.020(1)(b). Possession of a forged instrument alone is insufficient to justify a forgery conviction; but "possession together with slight corroborating evidence of knowledge may be sufficient." The jury was properly instructed that, in order to convict, it needed to find that:
State v. Scoby, 117 Wn.2d 55, 62, 810 P.2d 1358, 815 P.2d 1362 (1991) (citing State v. Douglas, 71 Wn.2d 303, 428 P.2d 535 (1967); State v. Ladely, 82 Wn.2d 172, 175, 509 P.2d 658 (1973)).
(1) . . . on or about November 15, 2005, the defendant possessed or offered or put off as true a written instrument which had been falsely made, completed or altered;
(2) . . . the defendant knew that the instrument had been falsely made, completed or altered;
(3) . . . the defendant acted with intent to injure or defraud; and
(4). . . the acts occurred in the State of Washington.
Here, the only elements of the crime that were in dispute were whether Aminev knew the check was forged and whether he attempted to cash it with the intent to defraud. The record shows that, even without the statements he made to Deputy Corlis, any reasonable jury would have concluded that the State met its burden beyond a reasonable doubt with respect to both elements. First, Aminev testified to an essentially identical explanation of his actions as the one he gave to Deputy Corlis. Thus, any reasonable jury would still have convicted him because it would have heard essentially the exact same evidence and arguments. Second, there was undisputed evidence that Aminev attempted to cash a high dollar value check drawn on a business account when he had no connection to the drafter or the account and the amount exceeded that which the drafter purportedly owed him. Indeed, Aminev testified that he questioned whether the check was fake before he presented it to the teller and asked the teller to verify it. When she called the number on the check, a woman answered and said it was valid even though she had no connection to the company issuing the check. Accordingly, any reasonable jury would have found the State proved possession and knowledge beyond a reasonable doubt and would have found Aminev guilty.
We reject Aminev's argument that although he testified at trial, "undoubtedly his attorney would have advised him not to testify" had his pre-Miranda statement been suppressed. Nothing in the record or the law permits us to make such an assumption.
Finally, the parties agree that there is a scrivener's error in the judgment and sentence. Aminev was only convicted under RCW 9A.60.020(1)(b), but the judgment and sentence indicates that he was convicted under " 9A.60.020(1)(a)(b)." We remand to the trial court to correct this error.
Affirmed and remanded.