Opinion
No. 37020-4-II.
January 13, 2009.
Appeal from a judgment of the Superior Court for Clallam County, No. 05-1-00367-6, George L. Wood, J., entered November 2, 2007.
Affirmed by unpublished opinion per Houghton, J., concurred in by Van Deren, C.J., and QuinnBrintnall, J.
UNPUBLISHED OPINION
A jury convicted Timothy Burke of unlawful possession of methamphetamine. He appeals, arguing that the trial court erred in finding that statements he gave to the police were voluntary. Concluding that the trial court did not err, we affirm.
A commissioner of this court initially considered Burke's appeal as a motion on the merits under RAP 18.14. The commissioner referred Burke's appeal to a panel of judges.
FACTS
We derive the facts from the trial evidence.
While riding his motorcycle at 60 miles per hour along Highway 101, Burke crashed into the back of a pickup truck. Firefighter paramedic Ron Whitney and firefighter emergency medical technician (EMT) Lawrence Parker responded and transported Burke to Olympic Medical Center. Burke claims that during that transport, he was given two or three injections of morphine.
At trial, Whitney denied giving Burke any narcotic. He stated that he would never give a patient with chest pain a narcotic because it could interfere with diagnosis at the hospital. He said he started one or two IVs containing a saline solution. But he did not testify at the suppression hearing, so this testimony cannot be considered in this appeal.
After delivering Burke to the hospital, Parker found a plastic baggie containing a white powdery substance in the ambulance. Parker and Whitney contacted the police and Washington State Trooper Eric Ellefson responded. Ellefson examined the substance and determined that it was likely a controlled substance. Ellefson returned to the State Patrol office, field tested the substance, and logged it into evidence.
Two or three hours later, Ellefson returned to the hospital to interview Burke, who was laying in a hospital bed in the emergency room. Ellefson read Burke his constitutional rights. Burke said that he understood his rights and agreed to waive them. Ellefson then asked Burke several questions about the drugs found in the ambulance. Burke said that while he did not know about the drugs, it was possible that he had left the drugs in his sweater when he used methamphetamine the week before.
The State charged Burke with unlawful possession of methamphetamine. He moved to suppress the statements he made to Ellefson. At a CrR 3.5 hearing, Ellefson testified:
A. I asked him . . . about the methamphetamine and he said he didn't know anything about it.
I asked him when the last time he used methamphetamine was and he said about a week or so ago.
And I asked him if the . . . methamphetamine could have been from then and he said it was possible and that . . . he had not worn this sweatshirt in a while.
Report of Proceedings (Oct. 2, 2007) (RP) at 30. Ellefson testified that he did not make any promises or threats to get Burke to speak.
Ellefson also testified that he is a drug recognition expert. He explained that a person under the influence of narcotics is less alert and less conscious but still knows what he or she is saying. Based on his experience and interaction with Burke, Ellefson did not have any concerns that Burke did not understand or could not follow his questions. Burke was responsive, did not appear to be under the influence of any drug, answered questions appropriately, and remained lucid throughout the conversation. In Ellefson's opinion, Burke did not exhibit any signs of narcotics influence.
Ellefson admitted on cross-examination that he did not check first with Burke's physician to determine whether Burke was on any narcotic medication for pain. He noticed that Burke was "slightly in pain." RP at 38. Ellefson did not know whether the paramedics gave Burke any morphine during transport.
Burke testified that after the shots of morphine, he could think through the accident that had just occurred. While he did not have a clear memory of what happened at the hospital, he admitted that he remembered Ellefson coming into his room and showing him a piece of paper. Burke felt that he was under the influence of the morphine at the time Ellefson spoke to him and did not have a clear recollection of what Ellefson asked or how he answered.
The trial court found that Burke voluntarily made the statements to Ellefson, explaining:
Had the officer — based on what's been told to me, had the officer just read the rights to him and there was no conversation involved I might be a little bit more concerned with it. But the officer — a couple reasons why I'm not is the officer did engage in conversation with Mr. Burke, Mr. Burke did respond to him. His responses were appropriate to him, it wasn't just yes or no response, it was conversation. And the officer — the other thing that influences me is that the officer was very clear that he did not see any — he said although Mr. Burke was in pain, slight pain he thought, that there was no indication to him that he was impaired by drugs and he's certainly had more training than the normal individual in that area.
So it seems to me he was coherent, he was responsive. He did make the — he did seem to understand the questions, responded appropriately to those and there were no threats made to him. So certainly Mr — and that's up to the defense, but certainly Mr. Burke has the right to testify about statements concerning the time of trial — at the time of trial if he wants to and let the jury decide whether or not his statements were appropriate under the circumstances and that's why rule 3.5 gives that as a right of his, to make statements — testify concerning statements at the time of trial.
RP at 55-56. The trial court then ruled that the statements were admissible. The trial court did not enter findings of fact and conclusions of law.
Burke does not assign error to the trial court's failure to enter findings of fact and conclusions of law.
The parties stipulated that the substance found in the ambulance was methamphetamine. At trial, Ellefson testified as described above. Whitney testified that he had personally and thoroughly cleaned the ambulance that morning and that Burke was the first patient to ride in it. Parker testified that when he exited the ambulance with Burke, he closed the doors. Parker found the baggie when he returned to the ambulance and began cleaning. Both Parker and Whitney stated that they observed the baggie near the head of the gurney. Parker stated that it was on the left side of the gurney, the same side from which Whitney had removed Burke's arm from his jacket to start an IV. Both firefighters denied having any baggies of material on their person or seeing anyone else around the ambulance that day.
The jury convicted Burke of unlawful possession of methamphetamine. He appeals.
ANALYSIS
Burke argues that the trial court erred in finding that his statements to Ellefson were voluntary. He asserts that the State failed to establish that the morphine did not interfere with his free will.
A state agent must advise a suspect of his constitutional rights before conducting custodial interrogation. Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). The State must prove by a preponderance of the evidence that a defendant validly waived his constitutional Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 162 (1970); State v. Earls, 116 Wn.2d 364, 379, 805 P.2d 211 (1991).
A confession is voluntary, and therefore admissible, if made after the defendant is advised of his rights and then knowingly, voluntarily, and intelligently waives them. State v. Aten, 130 Wn.2d 640, 663, 927 P.2d 210 (1996). A court determines voluntariness from a totality of the circumstances under which it was made. State v. Rupe, 101 Wn.2d 664, 679, 683 P.2d 571 (1984). Factors considered include a defendant's physical condition, age, mental abilities, experiences, and police conduct. Rupe, 101 Wn.2d at 679, 692. A court also considers a defendant's drug use at the time of confession, but this factor does not necessarily render a confession involuntary. Aten, 130 Wn.2d at 664.
Here, the State proved by a preponderance of the evidence that Burke voluntarily waived his constitutional rights. Ellefson advised Burke of his constitutional rights. Burke understood his rights and agreed to waive them. According to Ellefson, Burke was responsive, did not appear to be under the influence of any drug, answered questions appropriately, and remained lucid throughout the conversation. Burke's responses did not just contain "yes" or "no" answers but included more detailed responses that indicated he was participating in a conversation. See State v. Moore, 17 Wn. App. 5, 11, 560 P.2d 712 (1977) (finding no error in admitting confession even though defendant claimed taking phenobarbital made him dizzy and that he could not remember giving a confession because the confession was "coherent, logical and specific" and nothing in record corroborated his claim that drugs affected his confession).
Burke relies on Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963), overruled on other grounds, Kenney v. Tomayo-Reyes, 504 U.S. 1, 112 S. Ct. 1715, 118 L. Ed. 2d 318 (1992), to argue that the pain and morphine rendered his statements involuntary. Townsend was an admitted heroin addict, who started suffering withdrawal symptoms during an interrogation. Townsend, 372 U.S. at 297-98. Police brought in a doctor, who administered hyoscine and phenobarbital in the officers' presence. Townsend, 372 U.S. at 298-99. The medications made Townsend feel dizzy and sleepy, impaired his vision, and caused him to drift in and out of consciousness. Townsend, 372 U.S. at 300. Shortly after administration of the drugs, Townsend confessed to the crimes for which the officers were interrogating him. The trial court admitted Townsend's confession, and a jury convicted him. The United States Supreme Court noted that hyoscine, also known as scopolamine, likely acts as a truth serum that makes users "'very suggestible and may [cause them to] confess to crimes which they have not committed.'" Townsend, 372 U.S. at 309 n. 5 (quoting MacDonald, Truth Serum, 46 J. Crim. L. 259-60 (1955)). The Court reversed, holding that if Townsend's confession was the product of a truth serum, it could not have been made voluntarily. Townsend, 372 U.S. at 307-08.
In contrast, there is no evidence that morphine acts as a truth serum. Unlike Townsend, Burke did not exhibit any signs that he was under the effect of a drug. Ellefson is a drug recognition expert. He did not observe any symptoms common to persons under the effects of drugs, such as lowered alertness or consciousness. Even assuming that Burke did receive injections of morphine, he fails to show that the administration of morphine rendered his statements involuntary.
Burke also relies on Townsend to argue that coherency is not the proper standard for determining voluntariness. But the Townsend court stated that the state court improperly applied the coherency test in determining whether the defendant was "coerced." 372 U.S. at 307, 320. Townsend does not address voluntariness, which is at issue here. The United States Supreme Court, several federal circuit courts, and Washington employ the coherency test in determining whether a confession is voluntary. See Mincey v. Arizona, 437 U.S. 385, 398-99, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978) (confession involuntary because defendant had just been seriously injured a few hours earlier, he suffered "unbearable" pain, and his written answers to the officer's questions were "not entirely coherent"); United States v. Cristobal, 293 F.3d 134, 142 (4th Cir.) (confession voluntary because defendant, although medicated, was alert and coherent), cert. denied, 537 U.S. 963 (2002); Pagan v. Keane, 984 F.2d 61, 63 (2d Cir. 1993) (confession voluntary despite defendant's gunshot wounds and morphine treatment three hours before confession because defendant alert and not disoriented); United States v. Kelley, 953 F.2d 562, 565 (9th Cir. 1992) (confession voluntary despite fact that defendant going through heroin withdrawal because he was coherent, responsive, and aware), disapproved of on other grounds, United States v. Kim, 105 F.3d 1579 (9th Cir. 1997); see Moore, 17 Wn. App. at 11. The trial court did not err in finding that Burke was coherent. Thus, he fails to show that the trial court erred in finding that his statements to Ellefson were voluntary and therefore admissible.
Finally, even if the trial court erred in admitting Burke's statements, that error would be harmless. Admission of an involuntary statement can be harmless error. State v. Williams, 137 Wn.2d 746, 754 n. 2, 975 P.2d 963 (1999). We use the "overwhelming untainted evidence" test in its harmless error analysis. State v. Guloy, 104 Wn.2d 412, 425-26, 705 P.2d 1182 (1985). Under the "overwhelming untainted evidence" test, we look only to the untainted evidence to determine whether the untainted evidence is so overwhelming that it "necessarily leads to a finding of guilt." Guloy, 104 Wn.2d at 426.
Here, there is overwhelming untainted evidence that the methamphetamine belonged to Burke. Whitney had cleaned the ambulance that morning and did not observe any baggies. Burke was the only patient in the ambulance after the cleaning and before the methamphetamine was found. The methamphetamine was found on the same side of the ambulance where his jacket was removed. Whitney and Parker did not observe anyone else around the ambulance and Parker closed the ambulance doors when they exited with Burke. Finally, neither Whitney nor Parker had any white, powdery substances on them that day. Any reasonable jury could find beyond a reasonable doubt that the methamphetamine fell from Burke while he was in the ambulance. Any error in admitting Burke's statements would therefore be harmless.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
QUINN-BRINTNALL, J. and VAN DEREN, C.J., concur