Opinion
No. 57089-7-I.
October 2, 2006.
Appeal from a judgment of the Superior Court for Snohomish County, No. 04-1-01820-4, Gerald L. Knight, J., entered September 16, 2005.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA, 98101.
Vanessa Mi-jo Lee, Attorney at Law, 1511 3rd Ave Ste 701, Seattle, WA, 98101-3647.
Sr. Bell (Appearing Pro Se), 1208 A St Se, Auburn, WA, 98002.
Counsel for Respondent(s), Seth Aaron Fine, Attorney at Law, Snohomish Co Pros Ofc, 3000 Rockefeller Ave, Everett, WA, 98201-4060.
Affirmed by unpublished per curiam opinion.
To determine whether a suspect was subjected to custodial interrogation and therefore entitled to Miranda warnings, a court must decide whether a reasonable person in the suspect's position would have felt that his or her freedom was curtailed to a degree associated with formal arrest. Because Warren Bell's freedom was not curtailed to that degree, we conclude that he was not entitled to Miranda warnings and that the court in his burglary trial properly admitted his statements to police. We also reject Bell's arguments that the sentencing court penalized him for exercising his right to a trial, the trial court erred in failing to give a lesser included offense instruction, and his conviction is not supported by sufficient evidence. Accordingly, we affirm.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
FACTS
Around midnight on November 19, 2003, Snohomish County police officers Asa Bricker and Corey Cook observed Warren Bell loading a tire rim into a pickup in the parking lot of Les Schwab Tires. The pickup was parked next to a fenced tire storage area.
The officers left their patrol car and walked toward Bell. Before they said anything, Bell pulled out his identification. As he handed it to Officer Bricker, Officer Cook asked Bell what he was doing. Bell said, "scrapping." Cook noticed that a gate to the fenced area was open and asked Bell if he had gone in the gate — Bell replied, "yeah, I went in there." Cook asked if he had permission "to go in there [and] get this stuff" and Bell said, "no." Cook specifically asked if Les Schwab Tires gave Bell permission, and Bell again said, "no."
Officer Cook continued to converse with Bell until Officer Bricker, who had been running a warrants check, reported that Bell had outstanding arrest warrants. Officer Bricker then arrested Bell on the warrants and read him Miranda warnings. During subsequent questioning, Bell admitted entering the storage area by cutting a chain with a bolt cutter.
The State charged Bell with second degree burglary. Following a pretrial hearing, the court ruled that Bell was not in custody during the officers' pre-arrest questioning, that his post-arrest statements were made after Miranda warnings, and that all of his statements were admissible. The prosecutor, "[i]n an abundance of caution," agreed not to introduce the pre-arrest statements in the State's case-in-chief, but Bell's post-arrest statements were introduced at trial.
A jury convicted Bell as charged. At sentencing, the State requested a sentence at the high end of the standard range. The defense sought a low-end sentence based on Bell's alleged problems with substance abuse. The court imposed a mid-range sentence, stating in part:
I don't know the cause of your criminal history as to why you're committing the crimes as to whether or not they're drug related or what have you. I do know that you're 51 years old, you have a substantial criminal history, and usually at your age if it's drug related, either it's . . .? I mean, you shouldn't be committing any of these offenses, but you're too old to be adding any offenses. . . . I don't know what's going on with your situation, but I do know that the range is 43 to 57 months. State had apparently made an offer to you that if you accepted their offer, that they would recommend something less than the maximum. And I presided over the trial, you had the right to go to trial, there's some differentiation in people who readily accept responsibility for their acts, you had a trial, you had a jury convict you, and now it's time to sentence you. The range is 43 to 57 months. That doesn't even factor in, sir, the 25 misdemeanors that we were talking about with the prosecutor.
I don't believe in good conscience I could impose any sentence other than a mid range sentence, and that is what I'm going to do. Mid range sentence would be 50 months.
DECISION
Bell first contends the court erred in concluding that he was not in custody during pre-arrest questioning. A person is "in custody" if, considering all the circumstances, a reasonable person would feel that his or her freedom was curtailed to a degree associated with formal arrest. A person is not in custody, however, simply because they have been detained and questioned by police.
We review the trial court's decision after a CrR 3.5 hearing by determining whether substantial evidence supports the trial court's findings of fact, and whether those findings support the conclusions of law. State v. Broadaway, 133 Wn.2d 118, 130-31, 942 P.2d 363 (1997).
State v. Heritage, 152 Wn.2d 210, 218, 95 P.3d 345 (2004) (citing Berkemer v. McCarty, 468 U.S. 420, 441-42, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984)).
Although an investigatory detention involves a degree of restraint, it will usually not rise to the level of "custody" for Miranda purposes. Such detentions generally lack the coercive power of intimidation inherent in the police interrogations contemplated by Miranda. Therefore, an officer may allay his or her suspicions by asking a "moderate number of questions" without creating a custodial situation for the purposes of Miranda.
Heritage, 152 Wn.2d at 218; Berkemer, 468 U.S. at 439-40. A typical Terry stop is not "custody" for purposes of determining whether statements made during the stop are admissible under Miranda, even though the suspect may not be free to leave when the statements are made. Berkemer, 468 U.S. at 440; State v. Walton, 67 Wn. App. 127, 129, 834 P.2d 624 (1992). "The reason is that, unlike a formal arrest, a typical Terry stop is not inherently coercive because the detention is presumptively temporary and brief, is relatively less `police dominated', and does not easily lend itself to deceptive interrogation tactics." Walton, 67 Wn. App. at 130 (citing Berkemer, 468 U.S. at 437-40).
Heritage, 152 Wn.2d at 218.
Here, the officers' investigatory detention did not ripen into a custodial interrogation until they formally arrested Bell. The questioning and detention were brief and the atmosphere was not coercive. Bell voluntarily conversed with the officers and, with no prompting, offered them his identification. He may well have felt he was not free to leave, particularly while the police had his identification. But the police never requested his identification; he volunteered it. Moreover, as noted above, the fact that a person does not feel free to leave is insufficient, by itself, to demonstrate the degree of restraint associated with a custodial interrogation. We conclude that a reasonable person in Bell's circumstances would not have felt that his or her freedom was curtailed to a degree associated with formal arrest. Therefore, the pre-arrest detention and questioning did not rise to the level of a custodial interrogation, and the trial court did not err in admitting Bell's pre- and post-arrest statements to police.
See State v. Rife, 81 Wn. App. 258, 262, 913 P.2d 850, reversed on other grounds, 133 Wn.2d 140 (1997) (holding suspect for five to ten minutes until warrants check was completed was not "unduly long" and was within the scope of a valid investigatory detention).
Miranda warnings are not required when police questioning is part of a routine, general investigation in which the defendant cooperates but is not yet charged. State v. Short, 113 Wn.2d 35, 40-41, 775 P.2d 458 (1989).
Bell next contends he is entitled to resentencing because the sentencing court penalized him for exercising his right to stand trial. The record does not support this claim.
It is well settled that while a sentencing court may decrease the sentence of a defendant who pleads guilty, it may not increase a sentence solely because the defendant exercised his or her right to a trial. Contrary to Bell's assertions, the record does not indicate that the sentencing court violated these principles. Nothing in the record "affirmatively indicates" that the court penalized Bell for choosing to stand trial. Although the court's statements at sentencing are somewhat vague, they are most reasonably read as making a proper point — i.e., that defendants who plead guilty may receive sentence concessions and that Bell was not entitled to such a concession because he did not plead guilty. These statements do not demonstrate an intent to penalize Bell for standing trial.
State v. Richardson, 105 Wn. App. 19, 22-23, 19 P.3d 431 (2001) (citing State v. Sandefer, 79 Wn. App. 178, 181-84, 900 P.2d 1132 (1995)).
Sandefer, 79 Wn. App. at 184 (stating that "nothing in the court's remarks affirmatively indicates that the court improperly considered Sandefer's decision to stand trial").
Sandefer, 79 Wn. App. at 184.
Nor does the court's imposition of a mid-range sentence suggest that it penalized Bell for going to trial. Rather, in the face of requests for a low- or high-end sentence, the mid-range sentence, together with the court's oral remarks, strongly indicate that the court treated the midpoint of the range as the presumptive sentence and simply rejected the parties' proposed bases for decreasing or increasing that sentence. There was no error.
Bell also raises several additional arguments in his pro se statement of additional grounds for review. Only two arguments warrant discussion here. Bell contends the evidence was insufficient to support his conviction for second degree burglary. Under the court's instructions, the State had to prove that Bell entered or remained unlawfully in a building with intent to commit a crime against a person or property. Bell contends there is no evidence that he entered the Les Schwab Tires storage area or that he did so with intent to commit a crime therein. But Officer Bricker testified that Bell admitted cutting a chain and entering the storage area without permission. And Officer Cook testified that he saw two tire rims sitting inside the entrance to the storage area that matched a rim sitting in the bed of Bell's pickup. This evidence was sufficient to establish that Bell unlawfully entered the storage area with intent to commit a crime.
Bell also contends the court erred in failing to instruct the jury on the lesser included offense of first degree trespass. But he does not allege, and a review of the record fails to establish, that he requested such an instruction below. Courts are not obligated to give lesser included offense instructions sua sponte.
State v. Hoffman, 116 Wn.2d 51, 111-112, 804 P.2d 577 (1991).
Affirmed.
COX and AGID, JJ., concur.