Opinion
No. 62822-4-I.
January 19, 2010.
Appeal from a judgment of the Superior Court for King County, No. 08-8-04017-0, LeRoy McCullough, J., entered December 3, 2008.
Reversed and remanded by unpublished opinion per Appelwick, J., concurred in by Dwyer, A.C.J., and Ellington, J.
J.G. appeals his conviction for theft of a motor vehicle and unlawful possession of a firearm in the second degree. He argues the juvenile court improperly admitted his custodial statements, claiming he was not given a Miranda warning. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The deputy who purportedly read J.G. the Miranda warning testified to the contrary. J.G. argues the trial court erred in determining the missing witness doctrine did not apply, where another officer was nearby when J.G. was arrested and where the State failed to call that officer to corroborate the deputy's testimony. Because the court should have given J.G. the benefit of the missing witness doctrine, we reverse and remand for a new fact finding.
FACTS
King County Sheriff's Deputy Jeff Hancock stopped a 1989 Toyota Camry in the early morning of October 26, 2008, in the White Center area of King County. The vehicle was speeding and drifting into another lane. Deputy Hancock initiated a traffic stop. Deputy Hancock approached the vehicle on the passenger side, where J.G. was seated in the front passenger seat. Seeing that there was no key in the ignition, Deputy Hancock instructed the driver to turn off the car, which the driver did with a pair of pliers.
Deputy Hancock then asked the occupants whether there were drugs or weapons in the car. None of the occupants responded verbally to Deputy Hancock's question. However, Deputy Hancock concluded there might be a gun in the car, based on the body language of J.G. and the driver. Deputy Hancock called backup and unholstered his service weapon, telling the occupants to keep their arms raised. When back up arrived, officers directed the occupants to exit and handcuffed them. Deputy Curry searched the Camry and found a .25 caliber firearm under the passenger's seat.
At the CrR 3.5 hearing, Deputy Hancock testified that once the occupants were handcuffed, he asked Deputy Corliss, standing nearby, for his Miranda rights and juvenile warning card. He then read the Miranda and juvenile warnings to the occupants all as a group. Deputy Hancock further testified that Deputy Corliss was within earshot as he gave Miranda warnings to J.G. and the driver, guessing that he was "probably about two to three feet away." Deputy Corliss did not testify. The State did not explain his unavailability.
There were a total of five occupants of the car, the driver, J.G., and three passengers in the back seat. Deputy Hancock gave the Miranda and juvenile warnings to all five occupants together; the three occupants in the back seat were released at the scene.
Deputy Hancock asserted that after he gave the Miranda warning, J.G. waived his rights and made a statement that he and the driver had stolen the vehicle and that he had handled the gun but did not say where he obtained it.
In contradiction to Officer Hancock's testimony, J.G. testified that Deputy Hancock did not give the Miranda warning to him at all. He testified that Deputy Hancock did not say anything to him as the deputy approached the vehicle, standing there for 30 seconds before he drew his service weapon. He further testified that Deputy Hancock did not talk with him throughout the event. Nor did he remember Deputy Hancock get the warning card from Deputy Corliss.
Determining J.G.'s testimony to be less credible than Deputy Hancock's, the trial court found that Deputy Hancock had read the Miranda warning to J.G. The court also found that none of the officers present could have heard him do so. J.G.'s custodial statement — that he stole the vehicle and had handled the gun — was then admissible. The juvenile court found J.G. guilty of both theft of a motor vehicle and unlawful possession of a firearm in the second degree. J.G. timely appealed.
DISCUSSION
I. Suppression of Custodial Statements J.G. argues his statements to Deputy Hancock should have been excluded, claiming that he never received a Miranda warning. He assigns error to the juvenile court's finding of fact that the other deputies were not close enough to have heard Deputy Hancock read J.G. his rights. He also assigns error to the court's finding of fact that Deputy Hancock read him the Miranda and juvenile warnings. Finally, he assigns error to the court's legal conclusion that the missing witness rule was not implicated.
The court also noted that Deputy Curry did not hear the warnings and no other officer testified on corroboration.
In reviewing a trial court's ruling following a suppression hearing, we determine if substantial evidence supports the court's factual findings and whether the findings support its conclusions of law. State v. Broadaway, 133 Wn.2d 118, 130-31, 942 P.2d 363 (1997). Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999), abrogated on other grounds by Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007).
Deputy Hancock testified on direct examination that Deputy Corliss handed him the Miranda and juvenile warning card, and that Deputy Corliss was standing off to the right. On cross-examination, Deputy Hancock testified that, while he was giving the Miranda rights to the group, Deputy Corliss was within earshot. He agreed with counsel's question that "he would have heard everything you were saying?" He offered further that Deputy Corliss was two to three feet away:
Q Okay. Now, I hadn't — now, the whole time — when you were — when you were giving the Miranda rights to the group, you stated Deputy Corliss was with — within earshot; is that correct?
A Yes.
Q So he would have heard everything you were saying?
A I can't speak for him, but I would assume.
Q Well, how far away was he?
A As I've already said, he was probably about two to three feet away.
Deputy Curry, another officer who responded on back up, testified he knew Deputy Hancock provided the Miranda rights, but when asked whether he actually heard him, Deputy Curry replied, "No, I did not." J.G. testified that he had no memory of Deputy Hancock receiving the card from Deputy Corliss. He also testified he did not remember the other officers who were around him. Deputy Hancock's testimony that Deputy Corliss was within earshot as he read J.G. his Miranda rights — within two or three feet — is not consistent with the court's conclusion that no other deputy was close enough to have heard Deputy Hancock. The State, somewhat disingenuously, maintains that J.G.'s testimony means that no other officers could have heard Deputy Hancock. However, J.G. testified that he did not remember whether there were officers present alongside Deputy Hancock. J.G. did not assert affirmatively that no officers were present to hear Deputy Hancock. Further, there is no evidence in the record to suggest that Deputy Corliss walked away right after giving Deputy Hancock the card. To the contrary, Deputy Hancock's testimony suggests Deputy Corliss remained close by as Deputy Hancock read the Miranda rights. We hold the trial court's finding of fact that no other officers were present to hear the Miranda rights is not supported by substantial evidence. J.G.'s next assignment of error, to the finding that Deputy Hancock read the Miranda warning to him, implicates the court's credibility determination in favor of Deputy Hancock. Credibility determinations are for the trier of fact and are not subject to review by this court. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). However, under the missing witness doctrine, when "`evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and, . . . he fails to do so, — the jury may draw an inference that it would be unfavorable to him.'" State v. Davis, 73 Wn.2d 271, 276, 438 P.2d 185 (1968) (quoting Wright v. Safeway Stores, Inc., 7 Wn.2d 341, 346, 109 P.2d 542 (1941)). The rule may be invoked in a pretrial suppression hearing where the adequacy of an officer's Miranda warning is in dispute and the State fails to produce corroborating testimony from other officers present during the warning. State v. Erho, 77 Wn.2d 553, 558-59, 463 P.2d 779 (1970) (explaining that "Where, as here, there appears to be adequate opportunity to obtain and present the corroborating testimony of other officers present at the scene of apprehension and custody, we are satisfied the state fails to meet the heavy Miranda burden of proof when, without explanation, it omits to supply such corroboration.").
In the context of a suppression hearing, that inference is sufficient to tip the scales in favor of the accused unless there is sufficient other evidence to overcome the inference. State v. Haack, 88 Wn. App. 423, 434, 958 P.2d 1001 (1997).
We do not read Davis and Erho as requiring independent corroboration of the testimony of a police officer in every instance in which the defendant disputes the giving of the warnings and intelligent waiver of the right to remain silent. Rather, those cases stand for the proposition that where such independent evidence exists, it must either be presented or the State must explain on the record why the evidence is not being presented. The underlying rationale is akin to the "missing witness rule," that is, where a witness is under the control of the party presenting evidence and is not called and no explanation is given for that failure, the trier of fact may entertain an inference that the testimony of the missing witness would have been adverse. In the context of a suppression hearing based on Miranda, that inference is sufficient to tip the scales in favor of the accused, where the State offers no explanation of its failure to call the witness. In such instances, the State cannot meet its burden as a matter of law, unless there is sufficient other evidence to overcome the inference.
Id. at 433-34.
The State failed to call Deputy Corliss to corroborate Deputy Hancock's testimony. The State asserted, as an "offer of proof," that Deputy Curry did not hear the Miranda rights, so Deputy Hancock was the only one who could testify on this subject. However, the State did not explain whether Officer Corliss, who was in close proximity when Deputy Hancock read J.G. the Miranda warning, was available to testify. Had the State satisfactorily explained that Deputy Corliss was unavailable to testify, the inference would not have been permitted. Davis, 73 Wn.2d at 278-79. The inference is not based on the bare fact that a particular person is not produced as a witness, but on the non-production "`when it would be natural for him to produce the witness if the facts known by him had been favorable.'" Davis, 73 Wn.2d at 280 (quoting 2 Wigmore, Evidence § 287 (3d ed. 1940) (italics omitted).
Because the court's finding that no other deputy was close enough to hear Deputy Hancock is not supported by substantial evidence, we are unable to uphold the court's finding that Deputy Hancock read the Miranda warning to J.G. We recognize the court could have arrived at the same conclusion had it given J.G. the benefit of the missing witness inference. But, based on the record before us, the State did not make the necessary showing to avoid the application of the missing witness rule, and the court's key factual finding about Deputy Corliss's proximity is flawed.
Finally, J.G. assigns error to the court's legal conclusion that "[n]either Deputy Corliss nor any of the other officers were close enough to overhear the Miranda or Juvenile Warnings being read to the Respondents. State v. Davis 73 Wn.2d 271 (1968) was not implicated." While the missing witness rule is not a mandatory one, the court itself recognized that if another officer were close enough to have heard, the rule would have been implicated. The soundness of this legal conclusion is based predominately on a factual finding that is not supported by substantial evidence. It is also based on a credibility determination the court made, where J.G. might have been entitled to the missing witness rule. We hold the court erred in concluding that State v. Davis is not implicated.
This conclusion of law reveals the importance of the court's factual finding concerning the proximity of the other officers.
II. Harmless Error
If the State can demonstrate beyond a reasonable doubt that the error was harmless, we must affirm the conviction. State v. Sergent, 27 Wn. App. 947, 951, 621 P.2d 209 (1980) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)). An error is harmless if the appellate court is convinced beyond a reasonable doubt the error did not contribute to the verdict. Id. at 951-52.
J.G. convincingly argues the error was not harmless beyond a reasonable doubt, as his statement to Deputy Hancock was the only evidence that established his participation in the theft. Similarly, his statement was the only evidence that he knew there was a gun under the passenger seat of the car. Furthermore, we are unable to say that the court's failure to apply the missing witness rule would not have, beyond a reasonable doubt, affected the verdict. Had Deputy Corliss testified that he heard Deputy Hancock interact with J.G. and knew that he had not read Miranda to J.G., the court may not have reached the same credibility determination. Had the court found that J.G. was credible, the custodial statements would have been suppressed: "unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him." Miranda, 384 U.S. at 479.
Because we cannot say the error was harmless, we reverse and remand for a new fact finding hearing.
WE CONCUR.