Opinion
No. 28719-6-II.
Filed: March 9, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Jefferson County. Docket No. 00-1-00162-8. Judgment or order under review. Date filed: 03/29/2002. Judge signing: Hon. Thomas J Majhan.
Counsel for Appellant(s), Sherryl A. Jones, Attorney at Law PO Box 1869, Port Townsend, WA 98368-0058.
Counsel for Respondent(s), Philip James Buri Buri Funston PLLC, 1601 F Street, Bellingham, WA 98225-3011.
Robert H. Froehlich appeals his conviction of second degree murder, arguing that (1) the police violated his constitutional right against self incrimination; (2) there is insufficient evidence to support his conviction; (3) the trial court abused its discretion when it found him competent to stand trial; and (4) he received ineffective assistance of counsel. Because the evidence supports the court's finding that Froehlich waived his right against self incrimination and the conviction, and because Froehlich has failed to show trial court error or ineffective assistance of counsel, we affirm.
FACTS
In 1992, police recovered the body of a teenage girl lying face down in a river in Quilcene, Washington, a rural town in Jefferson County. Despite a vigorous investigation, they were unable to identify a suspect. The homicide was highly publicized and reenacted in 1995 on the television show "America's Most Wanted." Clerk's Papers (CP) at 205.
After the release of the television show, Froehlich contacted the police and provided the names of two men whom he alleged had committed the murder but, following an investigation, the police determined that this information was false. Then, on the evening of July 4, 2000, Froehlich contacted police in Curry County, Oregon, where he had been visiting his brother, and, later that night, he confessed to the crime.
Sergeant Sevey picked Froehlich up at the brother's house and advised Froehlich that he was not under arrest. When Froehlich arrived at the police station, he invoked his Miranda rights and Sevey stopped questioning him. But while Sevey was filling out a personal information form regarding sheriff office contacts, Froehlich indicated that he wanted to speak with Pete Piccini or Dale Wurtsmith of the Jefferson County Police Department.
Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 726, 86 S.Ct. 1602 (1966).
Froehlich spoke on the phone to Wurtsmith, while Sevey and Curry County detective David Gardiner listened. Froehlich provided additional details about the homicide of the teenage girl, such as a description of her clothing and the place where she was stabbed; he then confessed to being an accomplice to the murder. Two hours after this telephone conversation, Froehlich made two videotaped confessions to Gardiner, each prefaced with Gardiner advising Froehlich of his Miranda rights and Froehlich waiving those rights.
About the same time that Froehlich was making his videotaped confessions, Curry County police arrested him for an outstanding warrant from Montana. And later that evening, Jefferson County police sent Curry County a fax of a Jefferson County arrest warrant for Froehlich's arrest on a burglary charge.
On July 6, Wurtsmith and Detective Nole from Jefferson County picked Froehlich up at the Curry County Sheriff's office. They advised Froehlich of his Miranda rights; he signed a written waiver; and en route to Jefferson County, they talked more about the murder.
After his arrival in Jefferson County, Froehlich entered a guilty plea to the burglary charge and the court sentenced him to fifty one days in jail. While serving this sentence, Froehlich sent police a handwritten letter containing specific details of the teenage girl's homicide, including information about her wounds and her location in the river when she died. Police confirmed that many of these details had not been included in media coverage; however, police were unable to corroborate some information in the letter.
Meanwhile, two doctors evaluated Froehlich on behalf of the State for competency to stand trial and they reported that he understood his confessions and was competent. The defense retained doctor disputed these opinions.
The State charged Froehlich with second degree murder for the 1992 homicide and the trial court found Froehlich competent to stand trial. At the conclusion of a CrR 3.5 hearing, the trial court ruled that Froehlich's statements to the Curry County and Jefferson County police would be admissible at trial. The parties then stipulated to a bench trial, following which the trial court found Froehlich guilty as charged.
ANALYSIS I. Froehlich's Confessions Miranda
On appeal, Froehlich challenges the admission of five self incriminating statements that he contends violated his Miranda rights: (1) his statement on the telephone to Wurtsmith; (2) two statements on two separate videotaped confessions; (3) one statement to Detectives Wurtsmith and Nole en route to the police station in Washington; and (4) the letter he wrote while in custody.
We review a defendant's challenge to the trial court's findings following a CrR 3.5 hearing for substantial evidence. State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997). A defendant's confession is voluntary if the totality of the circumstances demonstrate that law enforcement neither coerced the defendant nor overpowered the defendant's will. Broadaway, 133 Wn.2d at 132. We will review only those factual findings to which the appellant has assigned error. State v. Acrey, 148 Wn.2d 738, 745, 64 P.3d 594 (2003).
A. Statement made on the phone to Detective Wurtsmith
Froehlich argues that when he asked for an attorney at the Curry County Sheriff's office, the officer failed to stop interrogating him. Froehlich claims that his telephone confession to Wurtsmith was the result of a "coercive environment" at the Sheriff's office and of Wurtsmith's conduct on the phone. Br. of Appellant at 54.
Froehlich's arguments are unpersuasive. First, he does not challenge Finding of Fact 1, which states "Mr. Froehlich invoked his Miranda rights and was not interrogated by Sergeant Sevey [of Curry Co.]." Supplemental CP (SCP) at 2. Thus, this finding is a verity on appeal and effectively rebuts Froehlich's first contention.
In addition, Froehlich testified at the CrR 3.5 hearing that he called Curry County police for the sole purpose of turning himself in and that he made the call voluntarily: "I called them [Curry Co. police] to contact Dale Wurtsmith or Pete Piccini . . . I wanted to get it over with." Report of Proceedings (3/31/03) (RP) at 91-92. Froehlich requested to speak to an attorney at the Curry County police station but "a few minutes after that," before Sevey finished filling out a routine information form, Froehlich requested to speak with Wurtsmith. RP (12/15/00) at 18.
Although Froehlich attempts to portray Sevey as coercive, the trial court found Sevey to be credible and we do not review credibility determinations. Thus, under the totality of the circumstances test, the evidence is sufficient to show that the statements to Wurtsmith were not the product of law enforcement coercion.
B. The videotaped confessions
Froehlich made the first videotape soon after his confession to Wurtsmith on the telephone. He made the second videotape confession later that morning and it again related to his telephone statements to Wurtsmith.
Froehlich argues that Gardiner practiced coercive interrogation techniques during both video confessions. He complains that he was tired and that the hour was late when he gave the first videotape confession. He contends that Gardiner ignored his request for medical help during the recording of the second videotape.
Froehlich clearly waived his Miranda rights during both videotaped confessions. See Exhibit 1. And Gardiner again provided these Miranda warnings even though both Sevey and Wurtsmith had provided them earlier that evening. Thus, Froehlich understood he could stop talking, but he chose not to.
Froehlich argues that Gardiner improperly urged him to confess, but this argument ignores both that the videotaped confession was recorded only a few hours after Froehlich's telephonic confession to Wurtsmith and that Froehlich stated his desire to confess "to get it over with." RP (3/31/03) at 92. And Gardiner did not ask Froehlich any substantive questions until after Froehlich waived his Miranda rights. Finally, when Froehlich asked for medical help during the second videotaped confession, Gardiner indicated that he would provide it. Thus, the totality of the circumstances supports the trial court's finding that Froehlich's two videotaped confessions were voluntary and were not made in response to a coercive environment.
C. Statement made en route to Jefferson County
Froehlich concedes in his appellate brief that the police provided him Miranda warnings before the trip to Jefferson County and he fails to provide an argument showing why his discussions with police in the police car were not voluntary. Thus, we do not consider this assignment of error further. See RAP 10.3(a)(5); State v. Dennison, 115 Wn.2d 609, 629, 801 P.2d 193 (1990).
D. Letter from jail
The letter that Froehlich wrote while in jail contained important details about the murder. But Froehlich contends that (1) his involuntary earlier statements tainted the letter; (2) he was too delusional to provide a knowing and voluntary statement such as a handwritten letter; and (3) the court should have suppressed the letter because of the State's preaccusatorial delay.
As we discussed above, the record supports the finding of voluntariness of the prior statements. We discuss Froehlich's competency in Part III below. As to preaccusatorial delay, the State charged Froehlich for the murder four months after obtaining his confession. This slight delay, following an eight year investigation, was reasonable given the need to corroborate facts alleged in the confession letter and to obtain psychological evaluations to verify Froehlich's competency to stand trial. And Froehlich has not shown that the State had sufficient evidence to charge him before obtaining his confession. Thus, Froehlich has not shown that charging delay prejudiced his right to a fair trial. State v. Norby, 122 Wn.2d 258, 263, 858 P.2d 210 (1993).
II. Sufficient Evidence
Froehlich argues that there was insufficient evidence to support his second degree murder conviction because his confessions were "embellished by imagination and television" and included details of the crime that the State could not corroborate; his delusional tendencies make his confessions untrustworthy; and he had diminished capacity to make a confession. Br. of Appellant at 32. He also makes passing reference to the corpus delicti rule, but he concedes that it does not apply here.
The corpus delicti rule requires "independent corroboration of extrajudicial confessions . . ." City of Bremerton v. Corbett, 106 Wn.2d 569, 575, 723 P.2d 1135 (1986). Such verification exists here in the form of the body, the nature of the wounds, the clothing, and expert testimony connecting this evidence with the crime.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Tilton, 149 Wn.2d 775, 786, 72 P.3d 735 (2003). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citation omitted). To prove second degree murder, the State must establish that the defendant had the "intent to cause the death of another person but without premeditation" and "cause[d] the death of such person." RCW 9A.32.050(1)(a).
Clearly, there were inconsistencies between portions of Froehlich's confessions and the evidence. The confessions also contained remarkably accurate key pieces of information that had not been disseminated to the public. The issue we must decide is whether these discrepancies are sufficient to raise a reasonable doubt as to whether Froehlich's confession was the product of a guilty conscience and haunting memories or whether, instead, it was merely the product of a delusional mind. To respond to this issue, we examine what the court found to be the key corroborating facts and the discrepancies that Froehlich identifies.
A. Victim's wounds
Froehlich confessed that he stabbed the victim in her chest through her clothing on the left hand side near her heart. These facts were consistent with the autopsy report, which revealed that the victim had been stabbed in the chest through her clothes near her heart. Significantly, none of this information had been released to the public.
Froehlich argues that his marks on a diagram showing the location of the stabbing were on the far left side of the chest, which would be inconsistent with the evidence. He also points to additional statements he made about an accomplice injuring the victim's mouth and teeth, which the evidence did not corroborate. And he argues that while he alleged that the victim had a cut on each cheek and on her forehead, the evidence showed a knife wound on one eyebrow and one cheek.
One would anticipate some discrepancies between the actual details of a crime such as this and the perpetrator's recollection of those details eight years later. The mere passage of time clouds memory for details. Further, it is quite possible that the perpetrator, caught up in the passion of committing the crime, did not correctly observe some details in the first instance. And finally, there was evidence that Froehlich was using methamphetamines at the time of the crime, which could have clouded his ability to accurately perceive details in the first instance. Given that Froehlich was describing events that occurred eight years earlier when he allegedly was under the influence of drugs, and given the accuracy of key facts about the stabbing in the chest through the clothing that the media had not discussed, the discrepancies do not alone make the confession untrustworthy. Br. of App. at 34.
B. Victim's body in the river
The trial court relied, in part, on Froehlich's accurate statement that the victim's body was in the river with her head facing north and her feet facing south, a position inconsistent with media reports, including "America's Most Wanted," which portrayed the body as located in the opposite direction. The court said that the direction of the body was information "only known by the killer," and not presented by the media. RP (2/21/02) at 43. Froehlich minimizes, but does not dispute the accuracy of this statement.
C. Type of knife used in the crime
Froehlich stated in his confession that he stabbed the victim with a Ginzu 2000 knife, a kitchen type steak knife with one serrated edge and one dull edge. The State confirmed that the shape of the victim's wounds matched a wound caused by the use of this type of knife. The Ginzu 2000's length also was consistent with the wounds. And news accounts of the homicide did not describe the shape of the wounds. Thus, this detail corroborates the confession.
D. Victim's clothing
Froehlich described the victim's clothing as a sweatshirt or sweater, acid-washed pants, and tennis shoes. The victim's body was wearing a sweatshirt, denim jeans, and no shoes. The media coverage of this homicide did not discuss any of these details.
Again, Froehlich focuses on the discrepancies, noting for example that he did not accurately describe the color of the sweatshirt. For the reasons explained above, we conclude that these discrepancies, in light of Froehlich's accurate recall of facts that had not been publicized, do not invalidate the confession as credible evidence.
E. Other discrepancies
Nor is the confession invalidated by the fact that Froehlich's handwritten letter, written eight years after the crime, contains additional uncorroborated or inaccurate statements regarding an accomplice, where the stabbing occurred, and where the body was placed in the river. Again, considering the passage of time, Froehlich's condition at the time of the crime, and his recall of some extremely detailed and accurate details not publicized elsewhere, the confession is credible evidence. Viewing this evidence in the light most favorable to the State, it is sufficient to support the second degree murder conviction.
We discuss Froehlich's arguments about his delusional tendencies in Part III below. Because he raises his diminished capacity contention for the first time on appeal, we will not review this challenge. RAP 2.5(a); State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999) (appellate court will not review issues that were not raised in the trial court).
III. Competency
Froehlich contends that he was incompetent to stand trial because of his delusional tendencies.
A defendant is competent to stand trial if he "understands the nature of the charges" and is "capable of assisting in his defense." In re Fleming, 142 Wn.2d 853, 862, 16 P.3d 610 (2001). We review the trial court's competency finding for an abuse of discretion. State v. Swain, 93 Wn. App. 1, 9, 968 P.2d 412 (1998).
Doctors Thomas Danner and Kenneth Muscatel examined Froehlich on behalf of the State and submitted written reports to the trial court. Dr. Danner observed Froehlich three separate times, including during Froehlich's two-week stay at Western State Hospital. Dr. Danner reported that Froehlich was fully aware of the charges against him, understood the legal process, had the capacity to communicate with his lawyer and plan a legal strategy, and was competent to stand trial.
Dr. Danner's findings were consistent with those of Dr. Muscatel. Dr. Muscatel evaluated Froehlich while he was in jail. Although both experts observed that Froehlich had paranoid and grandiose elements to his thinking, they concluded that he was competent.
Meanwhile, the defense retained Dr. Christian Harris to examine Froehlich. Dr. Harris opined that Froehlich suffered from delusional tendencies and that his confession was "more likely than not a product of his mental disorder." CP at 83. Froehlich contends that this rebutted the competency findings by Drs. Danner and Muscatel.
Froehlich notes that the trial court relied on written reports from the three doctors to rule on the competency question and contends that "Dr. Danner was wrong." Br. of Appellant at 48. Although we may give less deference to a trial court when it has not had an opportunity to view the witnesses' demeanor, here the court did have the opportunity to view the defendant. Further, given the depth of Dr. Danner's evaluation, we find no basis to substitute Dr. Harris' opinions for those of Dr. Danner and Dr. Muscatel.
Froehlich concedes that he "understood the charge to which he had confessed and the possible choices and penalties he faced, and seemed to have the ability to conduct himself appropriately in the courtroom" and that he "may not have had symptoms of a major mental disease or disorder." Br. of Appellant at 48. Considering the test for competency in Washington and given these concessions, the trial court did not abuse its discretion when it found Froehlich competent to stand trial.
IV. Ineffective Assistance of Counsel
Froehlich filed a statement of additional grounds for review (SAG), in which he merely asserts "denial of substitute counsel." SAG at 1. We find no indication that he moved to substitute counsel at trial and, rather, understand this to be a claim of ineffective assistance of counsel.
RAP 10.10(a).
A defendant has the right to effective assistance of counsel. U.S. Constitution, 6th Amend; Wash. Constitution, Art I, sec. 22. A defendant demonstrates ineffective assistance of counsel by proving (1) that counsel's representation fell below an objective and reasonable standard; and (2) that counsel's errors were serious enough to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Jeffries, 105 Wn.2d 398, 418, 717 P.2d 722 (1986).
The defendant must "show deficient representation based on the record established in the proceedings below" and overcome the court's strong presumption of effective assistance of counsel. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995); State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995). In reviewing this claim, we consider all of the circumstances of the defendant's case. McFarland, 127 Wn.2d at 335; State v. Soonalole, 99 Wn. App. 207, 215, 992 P.2d 541 (2000).
Here, there is no indication that Froehlich received assistance of counsel that fell below an objective and reasonable standard. The trial court expressly praised both of the lawyers involved in Froehlich's case, stating that they were "extremely professional" and were "outstanding." RP (10/1/02) at 38, 39. Thus, we find no merit to this claim.
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.
HOUGHTON and ARMSTRONG, JJ., concur.