Opinion
No. 61307-3-I.
April 27, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-01595-3, Richard D. Eadie, J., entered January 22, 2008.
Affirmed by unpublished opinion per Leach, J., concurred in by Agid and Ellington, JJ.
John Charles Franklin appeals his conviction for attempting to elude a pursuing police vehicle. Franklin claims that the trial court erred in admitting into evidence his custodial statements and failing to properly instruct the reconstituted jury. Because the record shows that Franklin was advised of and understood his Miranda rights before he voluntarily made statements to two police officers, we hold that the trial court did not err when it admitted his statements. We further hold that, although the trial court's seating of the alternate juror without a record of reinstruction was error, that error was harmless in light of the overwhelming evidence against Franklin. We affirm.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Background
On January 27, 2007, at about 1:20 a.m., Seattle Police Department Officers Erin Johnson and Darryl D'Ambrosio responded to a disturbance call reporting a possible fight near the intersection of 16th Avenue South and South Orcas Street. The officers were in uniform and in a marked patrol vehicle equipped with emergency lights and siren. D'Ambrosio was driving the patrol vehicle southbound on 16th Avenue South when Johnson spotted two cars stopped in the middle of the street, facing each other, and an individual standing in the street between the two cars. From about 20 to 30 feet away, the officers observed the individual reach into one of the cars, so they activated their emergency lights and spotlight. One of the cars, a 1999 Honda Accord driven by Franklin, immediately sped away. When Franklin reached the intersection of 16th Avenue South and Swift Avenue South, he turned right onto Swift Avenue South without stopping at the stop sign. Franklin then accelerated northbound on Swift Avenue South and then onto 15th Avenue South. The officers pursued Franklin's car at a speed of approximately 60 m.p.h. Johnson estimated that Franklin was traveling at 100 m.p.h. The posted speed limit was 30 m.p.h.
Franklin next drove through a red light at the four-way intersection of 15th Avenue South and Lucille Street, causing another car to brake sharply to avoid a collision. As Franklin crossed the intersection, he began to lose control of his car as the car's back end began swaying left and right. At this point, the officers decided to stop the pursuit because they saw cars approaching. They turned off their lights and siren and stopped at the red light on Lucille Street, hoping Franklin would reduce his speed. Instead, the officers saw Franklin continue speeding down 15th Avenue South, forcing other cars to the side of the street, and then turn left onto South Shelton Street. When the light turned green, the officers also turned onto South Shelton Street, where they saw Franklin's stopped car in a driveway. Franklin exited the car and fled on foot through the yard of the house. Initially, the officers ran after Franklin, but they stopped when they were told that a canine unit was en route.
D'Ambrosio returned to Franklin's car and examined the tire tracks left by the car, which indicated that Franklin had driven through the front yard of a residence at the corner of South Shelton Street and 15th Avenue South, almost striking a utility pole, and then had crossed through the front yard of a second residence before stopping in the driveway.
The canine unit arrived shortly, and Franklin was apprehended. Seattle Police Department Officer Michael Lancaster handcuffed and read Franklin his Miranda rights. When asked if he understood his rights, Franklin indicated that he did. Lancaster then asked Franklin why one of his pant legs was torn, and Franklin said that he had torn it while running from the police. Franklin then told Johnson that he fled because the license tabs on his car were expired and because he had consumed alcohol that evening and was afraid he would be arrested for driving while intoxicated. Franklin proceeded to tell Johnson that he was trying to reach his residence a few blocks away. When Johnson mentioned that he observed Franklin having difficulty controlling the car, Franklin agreed, stating several times that he was afraid he was going to hit parked cars and the utility pole.
The State charged Franklin with one count of attempting to elude a pursuing police vehicle. At a CrR 3.5 hearing at which Johnson, Lancaster, and Franklin testified, the trial court ruled that Franklin's postarrest statements were admissible. The trial court found that although Franklin had not been specifically asked to waive his Miranda rights, he answered questions after hearing and understanding his rights.
At trial, the State presented the testimony of Johnson, D'Ambrosio, and Lancaster. Franklin did not testify on his own behalf and called Payton Siva, a longtime friend. Siva testified that he had been the individual standing in the street and that Franklin had already been driving away at a normal rate of speed when the officers arrived at the scene. Siva further stated that the officers had not activated their emergency lights or siren and drove in Franklin's direction at a normal rate of speed. To support Siva's testimony, Franklin played an audio recording of the police radio transmissions that night and pointed out that the officers had not informed dispatch that they were involved in a vehicle chase. D'Ambrosio testified on cross-examination that the incident had lasted about "a minute or two."
At the close of trial, one juror was randomly selected as an alternate and temporarily excused. The jury began deliberations at 3:42 p.m. and later asked to rehear the recording of the police radio transmissions. At 4:25 p.m., the jury was released with instructions to return at 9:00 a.m. the next day. But the next morning, one of the impaneled jurors fell ill and could not come to court. No verbatim transcript exists of what occurred next, but the clerk's minutes indicate that the trial court excused the ill juror and recalled the alternate juror. With the concurrence of counsel, the recording of the police radio transmissions was played for the alternate juror. The other 11 jurors were then called into the courtroom. The clerk's minutes state, "The Court restarts deliberations with the reconstituted panel and the Jury retires at 9:34 a.m." About two hours later, the trial court placed on the record details regarding the recalling of the alternate juror. The trial court explained that the alternate juror was seated in place of the ill juror. The trial court also explained that before joining the other jurors, the alternate juror had listened to the recording of the police radio transmissions "so each member of the jury now has the same experience of listening to that recording once following the trial." But the trial court did not state whether any instructions were given to the reconstituted jury, and the clerk's minutes are silent on this point.
The jury then submitted four written questions to the court, and before being released for lunch, submitted two more. When the jury returned, the trial court provided written responses for all six questions and an additional exhibit requested by the jury. The jury listened to the recording of the radio transmissions once more before resuming deliberations at 1:15 p.m. and returning a guilty verdict at 2:58 p.m. After returning the verdict, the jury was polled, and all 12 jurors confirmed that the verdict was both their individual verdict and the verdict of the jury as a whole.
Discussion
I. Custodial Statements
Franklin asserts that the trial court erred when it admitted his custodial statements to Johnson and Lancaster based on its conclusion that Franklin impliedly waived his Miranda rights.
We review a court's conclusion of law that a criminal defendant has waived his Miranda rights de novo. A criminal defendant may waive his right to remain silent if the waiver is made knowingly, voluntarily, and intelligently. If these elements are met, a defendant's statements are admissible. A valid waiver may be implied from the facts of a custodial interrogation. An implied waiver "has been found where the record reveals that a defendant understood his rights and volunteered information after reaching such understanding" or that a defendant's answers "were freely and voluntarily made without duress, promise or threat and with a full understanding of his constitutional rights."
See State v. Johnson, 94 Wn. App. 882, 897-98, 974 P.2d 855 (1999).
Miranda, 384 U.S. at 444.
Miranda, 384 U.S. at 444.
State v. Terrovona, 105 Wn.2d 632, 646, 716 P.2d 295 (1986).
Terrovona, 105 Wn.2d at 646-47.
In State v. Terrovona, our Supreme Court found an implied waiver when the defendant had never been specifically asked whether he would waive his rights but voluntarily made incriminating statements. There, the trial court found that the defendant was advised of his Miranda rights, understood them, and then voluntarily waived them by participating in a discussion with detectives. In that discussion, the defendant was asked questions about the victim's death and, without any coercion, made incriminating statements. Our Supreme Court upheld the trial court's finding of implied waiver.
105 Wn.2d 632, 716 P.2d 295 (1986).
Terrovona, 105 Wn.2d at 647.
Terrovona, 105 Wn.2d at 647.
Terrovona, 105 Wn.2d at 647.
Here, the trial court found that Franklin was advised of his rights, understood them, and then voluntarily waived them by answering questions posed by Lancaster and Johnson. Nothing in the record suggests that Franklin's responses were coerced. Following Terrovona, the trial court did not err when it concluded that Franklin impliedly waived his rights.
II. Instructions to Reconstituted Jury
Franklin next contends that the trial court, after replacing the ill juror with the alternate juror, erred in failing to instruct the reconstituted jury on the record to disregard all previous deliberations and begin deliberations anew.
A defendant in a criminal case has a constitutional right to an impartial, 12-person jury. When a juror is excused during deliberations and replaced by an alternate juror, CrR 6.5 protects this right by requiring the court to instruct the reconstituted jury to "disregard all previous deliberations and begin deliberations anew." Although CrR 6.5 does not specify that a hearing is required before replacing a juror with an alternate, the rule does "clearly contemplate a formal proceeding which may include brief voir dire to insure that an alternate juror who has been temporarily excused and recalled has remained protected from `influence, interference or publicity, which might affect that juror's ability to remain impartial.'" Moreover, this court has held that a "trial court's failure to reinstruct the reconstituted jury on the record that it must disregard the previous deliberations and begin deliberations anew [i]s manifest constitutional error."
State v. Johnson, 90 Wn. App. 54, 72, 950 P.2d 981 (1998).
State v. Ashcraft, 71 Wn. App. 444, 462, 859 P.2d 60 (1993) (quoting CrR 6.5).
Ashcraft, 71 Wn. App. at 467.
The State argues that the record in this case "indicates that the trial court actually did properly instruct the reconstituted jury." As support for its argument, the State points to the clerk's minute entry stating that the trial court "restart[ed] deliberations with the reconstituted panel." The State also relies on the trial court's statements placed on the record explaining that the alternate juror was brought in to replace the ill juror and that the alternate listened to the recording of the radio transmissions before joining the other jurors.
But the State concedes that "there is no verbatim transcript of exactly what the trial court said to the reconstituted jury." Under these circumstances, there is simply no way to determine whether the reconstituted jury was instructed as required by CrR 6.5. Therefore, the trial court committed manifest constitutional error by failing to instruct the reconstituted jury on the record that it must disregard all previous deliberations and begin deliberations anew.
The State argues that even if the trial court committed error, any error was harmless because the evidence against Franklin was overwhelming. To prevail on this argument, the State must prove that the evidence supporting the verdict would "necessarily lead 12 fair-minded jurors to only one conclusion."
The State also argues that the record shows that the jury actually did begin deliberations anew. Because we agree with the State that the evidence against Franklin was overwhelming, we need not address this argument.
Ashcraft, 71 Wn. App. at 467.
Here, the testimony of Johnson, D'Ambrosio, and Lancaster establish that the pursuit took place over one-half mile in a residential neighborhood and involved near collisions with several cars and a utility pole. Within two minutes or less, Franklin ran a stop sign, accelerated through a red traffic light, and reached speeds estimated at 100 m.p.h. in a posted 30 m.p.h. zone. Near the end of the vehicle chase, Franklin turned at such a high rate of speed that his vehicle left the roadway and crossed into the front yard of a residence before coming to rest in another residential driveway. Afterwards, Franklin fled on foot. Franklin's statements to Johnson and Lancaster corroborate the State's version of events.
Franklin claims that the evidence against him was not overwhelming because the jury submitted six questions to the court. He also argues that his case rests on credibility determinations that must be left to the jury. But Franklin's reliance on the jury's questions amounts to speculation, and Siva's testimony largely concerns events that occurred before the vehicle chase. Both of these arguments underscore that the record contains no evidence controverting the testimony of Johnson, D'Ambrosio, and Lancaster. In light of the overwhelming evidence against Franklin, the error committed by the trial court was harmless.
Conclusion
The trial court did not err in admitting Franklin's custodial statements because the record shows that Franklin was advised of and understood his Miranda rights before voluntarily making the statements to Johnson and Lancaster. Although the trial court erred when it seated the alternate juror without a record of reinstruction, that error was harmless in light of the overwhelming evidence against Franklin.
Affirmed.
WE CONCUR.