Opinion
No. 30420-1-II.
Filed: April 27, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 03-8-00380-5. Judgment or order under review. Date filed: 05/01/2003. Judge signing: Hon. H. Edward Haarmann.
Counsel for Appellant(s), Pattie Mhoon, Attorney at Law, 949 Market St. Ste 488 Tacoma, WA 98402-3600.
Counsel for Respondent(s), Michelle Luna-Green, Pierce Co Pros Attorney, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.
Joshua David Cissell appeals his conviction in juvenile court for malicious mischief in the third degree. He argues the trial court erred when it: (1) failed to hold a CrR 3.5 hearing; (2) admitted his pre-custody statements; (3) violated the corpus delecti rule, and (4) found him guilty when the State failed to prove he maliciously and knowingly damaged the wall. His claims of error respecting the CrR 3.5 hearing and his corpus delecti challenge were not preserved below and are not reviewable. The properly admitted evidence was sufficient to support the conviction. We affirm.
Facts A. The Incident
Puyallup police officer, Joseph Pihl, responded to a domestic situation at the Glenbrook Apartments on February 20, 2003. When Officer Pihl arrived at the apartments, he contacted Kimberly Cissell, her son Joshua Cissell (Cissell), and the father, James Cissell.
Officer Pihl first spoke with Ms. Cissell. He then talked with Cissell in his bedroom. At the time Officer Pihl spoke with Cissell, he was still investigating the situation. He wanted to know what happened inside the apartment, why the police were called, and also why Cissell was so emotional and upset. The officer did not give any Miranda warnings to Cissell prior to asking him questions. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Cissell voluntarily explained the day's events.
Cissell told the officer that a decision was made early that morning to send him back to live with his father. He admitted being upset over the decision. Cissell told the officer he had become angry while arguing with his mother and punched the wall. As Cissell told this to the officer, he looked across the hallway from his bedroom.
Officer Pihl examined the area where Cissell gestured. He found damage to the wall and he took a photograph of the area. Officer Pihl noted that there were impressions in the sheet rock.
After speaking with Cissell, Officer Pihl spoke with Ms. Cissell briefly. Following the conversation with Ms. Cissell, the officer arrested Cissell.
B. The Trial
At trial before the court, Mr. Cissell testified for the defense. He explained that he and Cissell's mother were divorced and there continued to be custody issues. On the day of the incident, Mr. Cissell went to pick up his son. Cissell's probation officer had instructed Mr. Cissell to call the police if Cissell refused to leave.
Cissell also testified. He stated that on the day of the incident he learned he was switching custody to his father. He was upset with the decision and argued with his mother over whether he should have to switch residences. He further testified he did not strike the wall during the incident. Instead, Cissell stated he struck the wall a few months prior to the incident.
The trial court found Cissell guilty of malicious mischief in the third degree. Cissell appeals his conviction.
Analysis I. CrR 3.5 Hearing
Cissell argues the trial court failed to hold a CrR 3.5 hearing and this failure led to a denial of his constitutional rights to due process. We hold that this claim is not a manifest error affecting a constitutional right and is therefore not reviewable.
Cissell argues for the first time on appeal that the trial court violated his constitutional rights by not holding a CrR 3.5 hearing. At trial, there was no request for a 3.5 hearing. Counsel's brief references to the possible effect of Miranda on Cissell's admissions to Officer Pihl were during opening and closing remarks. Miranda, 384 U.S. 436. Neither remark acknowledged that Cissell's admissions were made pre-custody. Generally, appellate courts do not consider issues raised for the first time on appeal. RAP 2.5(a). Where, however, a manifest error affects a constitutional right, it may be raised for the first time on appeal. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). The defendant has the burden of making the required showing of prejudice to the court. This requirement involves the identification of the constitutional error and how the error, in the context of the trial, affected the defendant's rights. McFarland, 127 Wn.2d at 333. It is the showing of actual prejudice that makes the error 'manifest' and allows for appellate review. McFarland, 127 Wn.2d at 333 (citing State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492 (1988)). At issue in this case is whether the trial court's failure to hold a CrR 3.5 hearing is a manifest error affecting Cissell's constitutional rights.
The trial court did not err by not holding a CrR 3.5 hearing. The trial judge considered Cissell's statements to Officer Pihl that he had become angry and punched the wall, and found that they were made pre-custody. In Washington, the courts presume that evidence is considered by a trial judge only for its proper purpose. State v. Bell, 59 Wn.2d 338, 360, 368 P.2d 177, cert. denied, 371 U.S. 818 (1962). Thus, there is no need for a defendant to have a separate voluntariness hearing in the case of a bench trial. State v. Wolfer, 39 Wn. App. 287, 292, 693 P.2d 154 (1984), review denied, 103 Wn.2d 1028 (1985).
Further, the cases Cissell relies on are distinguishable from his case. In State v. Tim S., 41 Wn. App. 60, 63, 701 P.2d 1120 (1985), the trial court utilized an improper confession as substantive evidence to convict the juvenile defendant. There was also no CrR 3.5 hearing nor was one requested. Tim S., 41 Wn. App. at 63. In the case at bar, the court considered the statements made by Cissell prior to his arrest and found that they were pre-custody statements. The court made this decision after hearing from both Cisell and Officer Pihl.
State v. Alexander, 55 Wn. App. 102, 776 P.2d 984 (1989), also does not support Cissell's argument. In Alexander, the court admitted the defendant's statement based only on a police officer's version of what happened without allowing the defendant an opportunity to testify or present other evidence. Alexander, 55 Wn. App. at 105. Unlike in Alexander, there was no need for a separate voluntariness hearing because the court had adequate evidence in front of it to find Cissell guilty. That evidence included Cissell's testimony.
Because Cissell cannot show actual prejudice, he fails to show a manifest error occurred that led to a violation of his constitutional rights. Thus, his claim is not reviewable.
II. Findings of Fact
Cissell next contends the trial court erroneously concluded his statements were made voluntarily. He asserts the court's conclusion was not supported by the court's findings of fact. Again, we disagree.
We review a trial court's factual findings for substantial evidence. State v. Echeverria, 85 Wn. App. 777, 783, 934 P.2d 1214 (1997). Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
The court found in Findings of Fact IV that the statements Cissell made to Officer Pihl were voluntary and Miranda warnings were not required because his statements were made pre-custody. Miranda, 384 U.S. 436. Cissell asserts the court's findings are erroneous because he did not feel free to leave when Officer Pihl was questioning him.
Whether an officer should have given Miranda warnings to a defendant depends on whether the examination or questioning constituted (1) a custodial (2) interrogation (3) by a state agent. State v. Post, 118 Wn.2d 596, 605, 826 P.2d 172, 837 P.2d 599 (1992). A defendant is in custody for purposes of Miranda when his freedom of action is curtailed to a 'degree associated with formal arrest.' State v. Harris, 106 Wn.2d 784, 789, 725 P.2d 975 (1986) (quoting Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)), cert. denied, 480 U.S. 940 (1987). An officer's questions or statements will not constitute an interrogation if they are not "reasonably likely to elicit an incriminating response' from the suspect.' State v. Breedlove, 79 Wn. App. 101, 112, 900 P.2d 586 (1995) (quoting Rhode Island v. Innis, 446 U.S. 291, 302, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)).
Officer Pihl testified on arriving at Cissell's apartment, he first spoke with Cissell's mother. After speaking with Ms. Cissell, Officer Pihl went into Cissell's bedroom and questioned him. Cissell voluntarily answered the officer's questions. Further, he fails to point out that the statements offered by the State were only the statements from Officer Pihl's first contact with Cissell. The officer made this initial contact in order to determine why the police were called to the apartment and why Cissell was so emotional.
From these facts, we must determine whether Cissell believed he was at liberty 'to terminate the interrogation and leave.' State v. Solomon, 114 Wn. App. 781, 787-88, 60 P.3d 1215 (2002) (citing Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995)), review denied, 149 Wn.2d 1025 (2003). This court must determine de novo whether the trial court 'derived proper conclusions of law' from its findings of fact. State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1997) (citing Hill, 123 Wn.2d at 647).
Here, Officer Pihl's initial contact with Cissell was in order to determine what had happened and why the police were called. The record supports the trial court's finding that Cissell was not in custody at the time he made his statements.
III. The Corpus Delicti Rule
Cissell raises for the first time on appeal the issue of corpus delicti. Cissell's argument, however, is not reviewable by this court.
Under the corpus delicti rule, a defendant's extrajudicial confession or admission is not admissible unless there is independent prima facie proof that the crime charged has been committed by someone. State v. Cobelli, 56 Wn. App. 921, 924, 788 P.2d 1081 (1989). A prima facie showing requires evidence of sufficient circumstances supporting a logical and reasonable inference that the charged crime occurred. City of Bremerton v. Corbett, 106 Wn.2d 569, 578-79, 723 P.2d 1135 (1986).
The corpus delicti rule is a judicially created rule of evidence, not a constitutional sufficiency of the evidence requirement, and a defendant must make proper objection to the trial court to preserve the issue. State v. C.D.W., 76 Wn. App. 761, 763-64, 887 P.2d 911 (1995). A defendant's failure to object precludes appellate review because '[i]t may well be that 'proof of the corpus delicti was available and at hand during the trial, but that in the absence of [a] specific objection calling for such proof it was omitted." C.D.W., 76 Wn. App. at 763-64 (quoting People v. Wright, 52 Cal.3d 367, 404, 802 P.2d 221 (1990), cert. denied, 502 U.S. 834 (1991)). In the present case, Cissell did not object when testimony was elicited regarding his confession. Thus, he is unable to bring his claim now. RAP 2.5(a).
IV. Failure to Prove Elements of Malicious Mischief
Cissell's final argument is that the State failed to prove he knowingly and maliciously damaged the wall in his apartment. We disagree.
Cissell's argument is a challenge to the sufficiency of evidence. A person challenging the sufficiency of evidence admits the truth of the State's evidence and any reasonable inferences from it. State v. Gentry, 125 Wn.2d 570, 597, 888 P.2d 1105, cert. denied, 516 U.S. 843 (1995). All reasonable inferences from the evidence are drawn in favor of the State and interpreted most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). Circumstantial and direct evidence are considered equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
In reviewing the evidence in the light most favorable to the State, we hold the evidence sufficient to sustain Cissell's conviction. At trial, the State presented evidence of damage to the wall and testimony of Cissell's confession of causing the damage to the wall. Officer Pihl stated he saw the damage to the wall and also that Cissell confessed to him that he caused the damage. Cissell also admitted he had punched the wall although he stated he had not punched the wall on the day in question.
Cissell further contends the State failed to show he acted with malice. RCW 9A.04.110(12) defines malice as:
'Malice' and 'maliciously' shall import an evil intent, wish, or design to vex, annoy, or injure another person. Malice may be inferred from an act done in wilful disregard of the rights of another, or an act wrongfully done without just cause or excuse, or an act or omission of duty betraying a wilful disregard of social duty.
The evidence shows Cissell was angry and frustrated at the time he punched the wall. He admitted arguing with his mother about having to go live with his father. Malice can be inferred from the 'wrongfulness' of an act 'done without just cause or excuse.' RCW 9A.04.110(12). The damage in this case occurred while Cissell argued with his mother. He was angry with his mother and caused damage to the wall out of malice. There was sufficient evidence presented at trial to sustain Cissell's conviction.
We affirm.
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.
SEINFELD, P.J., and ARMSTRONG, J., concur.