Opinion
No. 64709-1-I.
Filed: September 19, 2011. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for King County, No. 08-1-13391-1, Sharon S. Armstrong, J., entered September 9, 2009.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Becker, J., concurred in by Leach, A.C. J., and Schindler, J.
A suspect may cut off police questioning through an unequivocal invocation of the suspect's right to remain silent. In this case, during custodial interrogation, a suspect told police "I don't want to talk about it" in response to questioning on his involvement in a robbery police accused him of committing. Police continued to interrogate the suspect. Because the statement unequivocally invoked his right to remain silent, the police should have ceased the interrogation and the trial court erred by denying the motion to suppress. We conclude, however, that the error was harmless. For other reasons, we reverse one of the appellant's convictions for robbery and remand for resentencing. Otherwise, we affirm.
According to evidence presented at trial, a home invasion robbery occurred on Friday night, December 19, 2008, at a residence in northeast Seattle. Four men and two women were inside, some of them playing cards. At least four men, all wearing ski masks and dark clothing, burst in armed with firearms. The invaders forced the occupants to the ground and tied them up. They demanded to know where "Hani" was and where the money and drugs were. Hani Elgiadi, who lived there, was not at home. The armed men assaulted and threatened the occupants. After ransacking the house and taking some items, they left.
It so happened that Elgiadi was just outside. As it was an icy night, he had been dropped off down the street and was walking home when he noticed Gabriel Burns' car parked about a block away. As he got closer, he saw two men near the back door with firearms. Elgiadi phoned his house to warn his friends, but the robbery took place right after he called. Elgiadi called 911. Police went to the house and found the victims. Three of them reported hearing the robbers say the name "Gabe," and some recognized the voice of one of robbers as belonging to a Gabe they knew who was an acquaintance of Elgiadi. Through this information, police identified Gabriel Burns as a suspect.
Seattle Police Detective Michael Magan found Burns' car near a coffee shop on December 23 and arrested Burns in the parking lot around 11:30 A.M. Magan told Burns that he was being arrested for robbery and orally advised Burns of his Miranda rights. Burns indicated that he was willing to talk to Magan. He was taken to an interview room at the police department equipped with audio and video recording equipment.
Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966).
The interview started at about 1:45 P.M. Detectives Magan and Dag Aakervik were present. The detectives again advised Burns of his Miranda rights and that he was under arrest for robbery. Burns acknowledged he understood his rights.
The interrogation, which lasted nearly two hours, was recorded and transcribed. Early on, one of the detectives said he felt he was getting half-truths from Elgiadi and the six people in the house about the incident that occurred on Friday night. He said he wanted to find out what actually happened and why it happened. Burns responded to the mention of Elgiadi's name. He said that Elgiadi had robbed him of $30,000. Burns explained he bought marijuana through Elgiadi and that he gave Elgiadi money to buy marijuana in Spokane. After listening to Burns discuss his relationship to Elgiadi, the detective returned to his question of what actually happened with the incident at Elgiadi's house. Burns evaded this question. "All I know is that Hani is the one that jacked me." The detective asked him if he went back to Elgiadi's house in retaliation. Burns answered, "No."
There followed a short conversation in which Burns talked about his life as a drug dealer, his desire for "a different life," his anxiety about his girl friend and her young daughter, and his concern about getting some money delivered to his girl friend to pay for rent. The detectives, however, continued to turn the topic back to the home invasion.
After promising to give the rent money to the girl friend, one detective asked Burns again, "Why don't you tell us what really happened?" The other detective then immediately asked, "Does the whole thing just have to do with retaliation about getting the money back, is that what it was?" Burns replied, "Well I don't wanna talk about it man." This is the statement that Burns contends invoked his right to remain silent.
The detectives did not cease their interrogation when Burns made this statement. They continued to press him to tell "what actually took place." The interrogation continued in this vein for quite some time. Burns never did admit to being present at the home invasion or involved with it in any way. He did make more statements confirming his hostility toward Elgiadi for not giving him his money back. And at one point, when the detective asked him if things got out of hand and more happened than he probably thought was going to happen, Burns responded that "everything's been out of hand, everything." But at no point did he agree that hostility about the failed drug deal was the motive for the robbery at Elgiadi's house.
The State charged Burns with two counts of first degree robbery, one count of first degree burglary, three counts of felony harassment, one count of second degree malicious mischief, and one count of second degree assault. Burns moved to suppress the statements made during the interrogation. The trial court denied the motion. A jury convicted Burns on all the charges except for second degree assault. This appeal followed.
Burns contends that his statement, "Well I don't wanna talk about it man," was clear and unequivocal and the trial court erred by denying his motion to suppress.
Pertinent to this issue, the trial court found, "At no point in time did the defendant invoke his right to silence." Finding of Fact 18. The court found that the statement, "Well, I don't want to talk about it man," was in response to a question by the detective about the underlying motive of the alleged robbery. The detective interpreted that statement as an indication that Burns "did not want to talk about that particular topic," and so the detective "then asked a different question, which the defendant was responsive to." The court concluded that the statement by Burns "was not a clear and unequivocal invocation of his right to remain silent during the interview since he continued to talk with the officers." Conclusion of Law 3(a). Clerk's Papers at 27. Burns assigns error to Finding of Fact 18 and Conclusion of Law 3(a).
Unchallenged findings of fact entered following a suppression hearing are verities on appeal. State v. Eserjose, No. 82491-6, 2011 WL 2571350, at *2 (Wash. June 30, 2011). A conclusion of law erroneously described as a finding of fact is reviewed as a conclusion of law. State v. Hutsell, 120 Wn.2d 913, 918-19, 845 P.2d 1325 (1993), citing Willener v. Sweeting, 107 Wn.2d 388, 394, 730 P.2d 45 (1986). Both errors assigned by Burns in connection with the order denying suppression involve conclusions of law and will therefore be reviewed de novo. Eserjose, 2011 WL 2571350, at *2.
Under the Fifth Amendment to the United States Constitution, no person "shall be compelled in any criminal case to be a witness against himself." The State may not use statements stemming from custodial interrogation unless the defendant is first informed of his or her constitutional rights and waives them. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). A waiver of Miranda rights "may be contradicted by an invocation at any time." Berghuis v. Thompkins, ___ U.S. ___, ___, 130 S. Ct. 2250, 2263, 176 L. Ed. 2d 1098 (2010). "If the right to counsel or the right to remain silent is invoked at any point during questioning, further interrogation must cease." Thompkins, 130 S. Ct. at 2263-64. "When the suspect knows that Miranda rights can be invoked at any time, he or she has the opportunity to reassess his or her immediate and long-term interests." Thompkins, 130 S. Ct. at 2264. However, to successfully invoke the right to silence, a suspect must do so "unambiguously." Thompkins, 130 S. Ct. at 2260.
Burns relies principally on State v. Gutierrez, 50 Wn. App. 583, 749 P.2d 213, review denied, 110 Wn.2d 1032 (1988). In Gutierrez, a consolidated case involving two defendants, codefendant Warren was arrested after police searched a storage unit and found narcotics. Warren was advised of his Miranda rights and asked to comment on the narcotics. Warren said he would rather not talk about it. Gutierrez, 50 Wn. App. at 585-86. At trial, the State used this statement to impeach Warren. We held this was error and that Warren's statement — "I would rather not talk about it" — was an unequivocal assertion of his right to remain silent. Gutierrez, 50 Wn. App. at 589 (emphasis omitted).
The State contends the closer precedent is State v. Walker, 129 Wn. App. 258, 118 P.3d 935 (2005), review denied, 157 Wn.2d 1014 (2006). There, defendant Garrison was interrogated on suspicion of child molestation. After signing a form waiving his Miranda rights, he "never stopped talking" during an interview lasting four and a half hours and never said that he did not want to talk to the police anymore. Walker, 129 Wn. App. at 265. "However, he did say many times that he did not want to say anything that would make him look guilty or anything that would incriminate him." Walker, 129 Wn. App. at 265-66. Despite the defendant's stated intention not to say anything incriminating, he did make incriminating statements that were used to convict him. This court affirmed the trial court's determination that the statements were admissible. "Garrison's statement that he did not want to say anything incriminating coupled with his willingness to continue speaking with the police for several hours was not a clear and unequivocal invocation of his right to remain silent and his statements are thus admissible." Walker, 129 Wn. App. at 276.
Burns' invocation of his right to silence was not conditional like the statement of Garrison, the suspect in Walker who did not want to say "anything incriminating." It is indistinguishable from the statement in Gutierrez, where the suspect said he "would rather not talk about it." It is not as if Burns was merely ruling out questions on the particular topic of whether retaliation was his motive for the robbery. He plainly did not want to talk about the robbery at all. The next question the detective asked was not on a different topic; it was different only in the sense that different words were used. The detective persisted in his desire to have Burns describe "what actually took place" on the night in question.
To conclude that Burns' invocation of his right to silence was equivocal, the trial court appears to have relied on the fact that Burns continued to talk with the detectives after saying he did not "want to talk about it." But the mere fact that Burns gave responses to the continued questioning does not render his earlier invocation equivocal. Under Miranda an accused's postrequest responses to further interrogation "may not be used to cast doubt on the clarity of his initial request for counsel." Smith v. Illinois, 469 U.S. 91, 92, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984). There is no principled reason this rule should be different regarding the right to silence. See Thompkins, 130 S. Ct. at 2260. This makes sense because the rule requiring termination of questioning upon an accused's invocation of his right to silence prevents police from trying to wear him down. Smith, 469 U.S. at 95 n. 2.
We conclude Burns clearly and unequivocally invoked his right to remain silent. The trial court erred reaching the opposite conclusion.
The error requires reversal only if prejudicial. Constitutional error is presumed to be prejudicial, and the State bears the burden of proving that the error was harmless. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986). A constitutional error 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. Guloy, 104 Wn.2d at 425. Under the "overwhelming untainted evidence" test, we look only at the untainted evidence to determine if the untainted evidence is so overwhelming that it necessarily leads to a finding of guilt. Guloy, 104 Wn.2d at 426. Under this test, a conviction will be reversed where there is any reasonable possibility that the use of inadmissible evidence was necessary to reach a guilty verdict. Guloy, 104 Wn.2d at 426.
The untainted evidence that Burns participated in the home invasion robbery was compelling and unrebutted. Elgiadi testified that he saw Burns outside his house and saw Burns' car parked near his home at the time of the robbery. Three of the witnesses inside the house had met Burns before and recognized his voice during the robbery. Some of the witnesses also heard a robber refer to one of the other robbers as "Gabe."
The court erroneously admitted several statements made by Burns after the point at which the detectives should have ceased their interrogation. The statements were incriminating because they supplied a motive for the robbery by showing Burns' hostility to Elgiadi. But they were largely repetitive of the statements Burns made in the early portion of the interrogation when he was answering questions voluntarily. Testimony at trial by Elgiadi and others corroborated the drug dealing relationship between Burns and Elgiadi and established that Burns, having been to the house to examine the marijuana, was familiar with the inside of the house. We conclude the error was harmless.
INFORMATION
Burns contends that the charging language in count 2 of the information was defective because it did not state that he took personal property, an essential element of first degree robbery. All essential elements of an alleged crime must be included in the charging document. State v. Kjorsvik, 117 Wn.2d 93, 101-02, 812 P.2d 86 (1991). The State concedes error. We accept the concession. Count 2 must be dismissed without prejudice. State v. Quismundo, 164 Wn.2d 499, 504, 192 P.3d 342 (2008).
SENTENCING
The trial court added to the sentence a term of 24 to 36 months of community custody, based on a determination that first degree robbery and burglary are "serious violent offenses." Burns contends this was improper. We agree, and the State concedes error. Under the Sentencing Reform Act, "serious violent offenses" are subject to a community custody term of three years. RCW 9.94A.701(1). But "violent offenses" are subject only to 18 months of community custody. RCW 9.94A.701(2). First degree robbery and first degree burglary are class A felonies. RCW 9A.56.200(2); RCW 9A.52.020(2). Class A felonies are "violent offenses." RCW 9.94A.030(54). They are not "serious violent offenses." RCW 9.94A.030(45).
"A trial court only possesses the power to impose sentences provided by law." In re Personal Restraint of Carle, 93 Wn.2d 31, 33, 604 P.2d 1293 (1980). The trial court imposed a term of community custody beyond its authority. The judgment and sentence must be corrected.
STATEMENT OF ADDITIONAL GROUNDS
Burns has filed a statement of additional grounds under RAP 10.10, raising four grounds.
The first ground concerns the "to-convict" instruction for first degree burglary. The third element contained extra language, specifically the last use of the word "or": "That in so entering or while in the building or in immediate flight from the building the defendant or an accomplice in the crime charged or assaulted a person." The instruction should have deleted the last "or." The extraneous word arguably allowed the jurors to find the element satisfied if they found a defendant or an accomplice "charged," rather than assaulted, a person.
Burns did not except to this instruction below, so it is not preserved for review. RAP 2.5(a). Even assuming the error can be raised for the first time on appeal, our review indicates the error was harmless. The State did not present evidence or argue that Burns or an accomplice had "charged" a person. The possibility that the jury found the element satisfied based on conduct that does not constitute an assault is remote. This ground does not necessitate further review.
Burns' second and third grounds involve differences between language used in the information describing the charges as compared to less detailed corresponding jury instructions. He suggests that the details included in the information became part of the State's burden of proof by operation of the law of the case doctrine. Burns did not except to the instructions. In any event, "unnecessary elements become the law of the case only after they have been included in the jury instructions." State v. Hull, 83 Wn. App. 786, 797-98, 924 P.2d 375 (1996), review denied, 131 Wn.2d 1016 (1997). These two grounds do not require further review.
The last ground is Burns' contention that the 10-year no-contact order and the community custody order in the judgment and sentence should not have applied to his convictions for felony harassment. A term of imprisonment, including community custody, may not exceed the statutory maximum. State v. Sloan, 121 Wn. App. 220, 221, 87 P.3d 1214 (2004). Additionally, crime-related prohibitions may not extend for a period of time in excess of the statutory maximum for the defendant's crime. State v. Cayenne, 165 Wn.2d 10, 14, 195 P.3d 521 (2008). Felony harassment has a maximum sentence of five years. Burns, however, does not explain why there is a problem in light of his convictions for first degree burglary and first degree robbery, both of which have maximum sentences of life. Given the validity of these convictions, additional review is not warranted.
CONCLUSION
We reverse Burns' second robbery conviction (count 2) and remand for dismissal of the charge without prejudice. We affirm the remaining convictions and remand for resentencing.
WE CONCUR: