Opinion
No. 29701-9-II.
Filed: April 13, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 02-1-01045-0. Judgment or order under review. Date filed: 11/08/2002. Judge signing: Hon. Karen Strombom.
Counsel for Appellant(s), Mary Katherine Young High, Attorney at Law, 109 Tacoma Ave N, Tacoma, WA 98403-2631.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
Brandy Elizabeth Douglas appeals her convictions of third degree criminal mistreatment, forgery, unlawful possession of marijuana, obstructing a law enforcement officer, and three counts of third degree possession of stolen property. Douglas contends the trial court erred in denying her motion to suppress statements she made to officers; in restricting her from contacting her children because the restriction is not reasonably related to her convictions; and in sentencing her to a facility that lacked counseling services. We affirm.
Facts
Because Douglas argues that the trial court erred in denying her motion to suppress, we set forth the facts from the CrR 3.5 hearing.
On February 27, 2002, Fife Police Officers Brad Blackburn and Jeff Rackley responded to a call of possible domestic violence assault at the Sunshine Motel. Rackley arrived first and spoke to a male who stood in the motel room doorway.
The male, who was referred to by various names, was later identified as Douglas' boyfriend.
When Blackburn arrived, he approached the door and saw Douglas in the room. He described her as extremely upset, emotional, `hysterical', both crying and yelling. I Report of Proceedings (RP) at 30. Douglas repeatedly said that there was no problem and identified herself as Elizabeth Nunez. When Blackburn ran the name through dispatch, he found no one by that name.
Rackley then read Douglas her Miranda warnings because he suspected her of `[p]roviding false information' to a police officer. RP at 83. Rackley did not tell Douglas about his suspicion. Douglas started to cry when Rackley read her the Miranda warnings, but she indicated that she understood her rights.
Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (prosecution may not use a defendant's statements against her when they stem from a custodial interrogation unless the defendant was advised of her right to remain silent and right to an attorney).
Blackburn then asked if he could `check [the motel room] for my safety' and walked inside. RP at 24. Blackburn discovered a male child on the bed, later identified as Xavier, Douglas' one year-old son. Blackburn and Rackley both noted that Xavier was lying very still. Blackburn saw that Xavier had bruises and `half raccoon eyes.' I RP at 25. Xavier was swaddled in blankets up to his neck. Blackburn also observed that Xavier had dried blood around his mouth and, after pulling back the blankets, found that most of his arm was wrapped in an ace bandage.
Blackburn defined `raccoon eyes' as bruising under the eyes. I RP at 25.
Douglas told Blackburn that Xavier had been injured playing with another child. Blackburn testified that, after he radioed for medical aid, Douglas told him, `Look at the diapers in the room. Look at the clothes. You know, I care for my child and I care about my child.' I RP at 30.
Rackley asked Douglas what happened to Xavier. Douglas told him that she was folding clothes when she heard Xavier scream. She told him that she then saw her boyfriend place Xavier on the bed and indicated that the boyfriend did not hurt the child.
It is not clear whether Rackley's questioning of Douglas occurred before of after she talked with Blackburn.
Rackley also noticed a small plastic baggy sticking up from Douglas' bust line. Rackley indicated that he knew what was in the baggy and urged her to show it to him. In response, Douglas handed the baggy to Rackley. The baggy was full of `green vegetable matter' and Douglas told Rackley, `You'll probably want this, too,' and handed him a pipe. III RP at 78. Douglas then yelled to her boyfriend, `the cops found my pot.' III RP at 79. It was at this point that Rackley placed Douglas under arrest for unlawful possession of marijuana and handcuffed her.
Officer Kenneth Smith also responded to the call. He learned from Gwen Johnson, who was in the room next door, that she heard a female `continuously telling the male to stop hurting the baby.' III RP at 89.
After the officers handcuffed Douglas, they transported her to the jail. En route, Douglas answered questions regarding stolen checks found in the room and told Smith that she did not hurt her son, but that her boyfriend sometimes got rough with him.
Once at the jail, Douglas was taken to an interview room where she signed a waiver of her rights and a form indicating that she understood them. Douglas gave a statement regarding Xavier's abuse, the stolen checks, stolen identities found in her possession, and her drug use.
At a later suppression hearing, Rackley, Blackburn, Smith, and Officer Kevin Farris testified. The defense called no witnesses and Douglas did not testify. Douglas sought to suppress only her statements made to Smith in the police car. The court suppressed Douglas' statements made in the car, but declined to suppress her other statements.
A jury convicted Douglas of third degree criminal mistreatment, forgery, unlawful possession of marijuana, obstructing a law enforcement officer, and three counts of third degree possession of stolen property. The court sentenced Douglas to two years and one day in the Pierce County Jail, with five years' supervision and ordered Douglas to take a parenting class and undergo a psychological assessment. Douglas appeals.
Analysis Suppression Hearing
Douglas first contends that the trial court erred in finding that she made voluntary statements to police after they entered her hotel room. Douglas asserts that she was in custody when the officers entered the room because she was not free to leave. Therefore, she argues, she should have been given Miranda warnings earlier. Further, she argues that the police `engaged in coercive behavior by questioning her' even though they described her as being `hysterical.' Appellant's Brief at 13. Specifically, Douglas asserts that her giving a false name, her written statement and verbal responses regarding the child's injuries, and her possession of drugs, drug paraphernalia, and stolen property were all `fruits of the poisonous tree' and, therefore, inadmissible. App. Br. at 14.
Douglas also contends that findings of fact 26, 27, 28, 37, 45, 46, 47, 48, and 49 and conclusions of law 3-9 and 12-15 are not supported by the evidence and are in error. But this argument is based on her assumption that her waiver was not valid. Because we hold that her Miranda waiver was valid, we otherwise decline to address her suppression arguments.
A person is in custody for Fifth Amendment purposes when her "freedom of action is curtailed to a . . . degree associated with formal arrest." State v. Richmond, 65 Wn. App. 541, 544, 828 P.2d 1180 (1992) (quoting State v. Short, 113 Wn.2d 35, 40, 775 P.2d 458 (1989)). Further, in determining whether a suspect is in custody, `[t]he sole inquiry is `whether the suspect reasonably suspected his freedom of action was curtailed." Richmond, 65 Wn. App. at 544 (quoting Short, 113 Wn.2d at 41).
Here, Rackley read Douglas her Miranda warnings after the name she supplied him did not match any record. Thus, before being read her Miranda rights, the only incriminating statement Douglas had made to the police was providing a false name.
The facts here are similar to those in State v. Marshall, 47 Wn. App. 322, 737 P.2d 265 (1987). In Marshall, the police approached a suspicious person who fit the description of a suspect in an ongoing rape investigation. 47 Wn. App. at 323. An officer asked the suspect several questions without reciting Miranda rights. Marshall, 47 Wn. App. at 323. On appeal, the court held that the suspect's responses were admissible because the questioning amounted to a Terry stop, and the suspect was not in custody at the time.
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 889 (1968) (an officer may reasonably search a suspect for the officer's own protection or the protection of others without having probable cause rising to the level required by the Fourth Amendment if he has a reasonable suspicion of criminal conduct).
Similar to Marshall, Douglas was not in custody when she gave a false name, and Miranda does not apply to that statement. 47 Wn. App. at 324-25. Because the `questioning' of her leading to her giving a false name is analogous to a Terry stop, her argument fails. Marshall, 47 Wn. App. at 324-25.
Regarding her later statements, Douglas contends that she did not knowingly and intelligently waive her right to counsel and right to remain silent after Rackley gave her Miranda warnings. She argues that because she was hysterical, crying, and upset, she could not have voluntarily waived her rights. We disagree.
Here, substantial evidence supports the trial court's finding that Douglas knowingly, intelligently, and voluntarily waived her right to remain silent and her right to have an attorney present during interrogation. Rackley read Miranda warnings to Douglas. She answered the officers' questions and never made any reference to an attorney or to stopping the questioning. Further, when the police later re-read her Miranda warnings to her, she volunteered information and did not ask for an attorney. A defendant shows an implicit Miranda rights waiver when she selectively responds to police questioning and volunteers information. State v. Young, 89 Wn.2d 613, 620, 574 P.2d 1171, cert. denied, 439 U.S. 870 (1978).
Although Douglas appeared emotional and upset, she presents no evidence that this rendered her statement involuntary.
Sentencing
Douglas next contends that the trial court improperly sentenced her. She asserts that the court erred in prohibiting contact between her and her two sons because this restriction is not reasonably related to her convictions.
We review a trial court's sentencing restriction for abuse of discretion. State v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993). A court abuses its discretion when it makes a decision based on unreasonable or untenable grounds. State v. Wade, 138 Wn.2d 460, 464, 979 P.2d 850 (1999).
`As part of any sentence, the court may impose and enforce crime-related prohibitions and affirmative conditions' on the defendant. RCW 9.94A.505(8). Douglas asserts that this restriction `is not reasonably related to the conviction for third degree criminal mistreatment [of Xavier].' App. Br. at 16. Douglas offers no argument for this novel contention and we find it unpersuasive.
Douglas finally contends that the trial court abused its discretion by sentencing her to two years' incarceration in the Pierce County Jail. She notes that there was testimony that she suffers from Post Traumatic Stress Disorder and was a victim of repeated sexual abuse as a child. She further contends that the trial court erred in sentencing her to a facility that does not provide treatment services.
RCW 9A.20.021(2) provides that any person convicted of a gross misdemeanor may be punished by a term in the county jail. And as the trial court explained, `If I had an opportunity or a chance to send you to Purdy [Prison], I would do that, because I think there are more services available to you there. I think you need help badly. But you also need to be punished for what you did do and what you didn't do.' XIII RP at 1056. The trial court understood Douglas' argument, but noted, `What I want here is I want you to pay the price and I also want you to get help.' XIII RP at 1060. It did not abuse its discretion in sentencing.
Purdy is the only women's correctional facility in Washington State.
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.
SEINFELD, P.J. and ARMSTRONG, J., concur.