Opinion
No. 60879-7-I.
April 27, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-09883-2, George T. Mattson, J., entered October 29, 2007.
Affirmed by unpublished opinion per Cox, J., concurred in by Lau and Leach, JJ.
Our courts employ the "overwhelming untainted evidence" test in determining whether constitutional error is harmless. Under that test, we look only at the untainted evidence to determine if that evidence alone is so overwhelming that it necessarily leads to a finding of guilt. Here, the untainted evidence overwhelmingly shows that Glenn George knew of the no-contact order in place at the time deputies found him in violation of the order. Accordingly, we affirm.
State v. Ng, 110 Wn.2d 32, 28, 750 P.2d 632 (1988) (citing State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985)).
Id.
In the very early morning hours of July 9, 2007, two King County Sherriff's deputies responded to a 911 call regarding a domestic disturbance at a house on the Muckleshoot Indian Reservation. Dispatch informed the deputies over the radio of an unconfirmed no-contact order between two parties involved. Waseena George, who lived at the residence, answered the door and showed the officers to the back bedroom. In the bedroom, the officers found Victoria Johnson sitting on the bed and Glenn George standing next to her.
Deputy Baxter took George out into the hallway, close to the front door of the home. Deputy Travis stayed in the bedroom with Johnson. Deputy Baxter stood "right in front of" George in the hallway. He asked George his name and his date of birth and requested identification. He asked George if there was a domestic disturbance and if anyone was assaulted. George said that there was no disturbance, no one had been assaulted, and everyone was fine. The deputy did not inform George of his Miranda rights at this time.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Deputy Travis then came out of the bedroom and asked George if he knew whether there was a no-contact order in place. George said "Yes."
Deputy Travis then placed handcuffs on George and put him in his patrol vehicle. Deputy Baxter went to his patrol vehicle to confirm by radio that the no-contact order between Johnson and George was still valid.
The State charged George with felony violation of a no-contact order under RCW 26.50.110(1) and (5).
Before trial, the court held a CrR 3.5 hearing to determine the admissibility of George's statement that he knew of the court order prohibiting him from contacting Johnson. At the hearing, the court heard testimony from Deputy Baxter as described above.
The trial court ruled that the statement was not taken in circumstances under which Miranda warnings were necessary, and ruled the statement admissible.
At trial, both officers testified that George admitted he knew of the no-contact order. The court admitted, without objection by George, a certified copy of the order signed by "Glenn George." A jury convicted George as charged.
George appeals.
CUSTODIAL INTERROGATION
George argues that his statement to the deputies was part of a custodial interrogation and that the trial court erred in admitting his statement because the deputies had not informed him of his Miranda rights.
For purposes of Miranda, a person is in "custody" when the defendant's movement is restricted at the time of questioning, as measured by an objective test: whether a reasonable person in the individual's position would believe he or she was in police custody to a degree associated with formal arrest. Because the test is objective, an officer's subjective, unstated intent to make the suspect a focus of a criminal investigation or even to arrest him is not relevant to the determination of "custody." It is also irrelevant whether the police had probable cause to arrest the suspect before or during the questioning.
State v. Lorenz, 152 Wn.2d 22, 36-37, 93 P.3d 133 (2004).
Id. at 37.
Id.
The State bears the burden of showing a constitutional error is harmless. We decide that a constitutional error is harmless only if convinced beyond a reasonable doubt that any reasonable jury would reach the same result absent the error, and where the untainted evidence is so overwhelming it necessarily leads to a finding of guilt. Where the error is not harmless, the defendant must have a new trial.
State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996).
Id.
Id.
Here, we assume, without deciding, that Miranda warnings were required prior to the question concerning George's knowledge of the no-contact order. But this allegedly tainted evidence was not the only proof of George's knowledge of the no-contact order. The State introduced, and the trial court admitted, without objection by George, a certified copy of the Yakima Municipal Court order prohibiting George from contacting Johnson.
The order names "George, Glenn Dale Jr." as the defendant. On a signature line reading "Signed and copy received:" appears the signature of "Glenn George," immediately above the word "Defendant."
Division Two of this court has found such evidence sufficient to overcome the improper admission of a defendant's statement admitting knowledge of a no-contact order. In State v. France, the court had initially ruled that the erroneous admission of the defendant's acknowledgement of a no-contact order was not harmless because the appellate record contained no other evidence that France knew of the order. After remand from the supreme court, where the State had been permitted to supplement the record on appeal with a copy of the no-contact order "with France's signature on it" that had been admitted at trial, the court found any error in admitting the defendant's tainted statement to be harmless.
129 Wn. App. 907, 120 P.3d 654 (2005).
France, 129 Wn. App. at 911.
Id.
The same principle applies here. The record contains a certified copy of the no-contact order. George presented no evidence or argument below, nor does he now argue that the signature on the no-contact order was not his.
Additionally, the jury heard evidence that both George and Johnson lived in the Wapato/Yakima area of Washington. Deputy Baxter testified that he confirmed George's identity at the scene and then relayed that information to the issuing agency to determine the validity of the no-contact order before placing George under arrest.
Even assuming that the admission of George's statement was in error, we are convinced beyond a reasonable doubt that any jury would have reached the same result absent the error. There is overwhelming evidence that George knew of the no-contact order in place at the time the officers found him violating it.
George argues that because no person at his trial identified the signature on the no-contact order as his, his case is distinguishable from France. He points out that the trial court sustained his objection to Deputy Baxter's identification of the signature on the document as George's. But in the absence of any other challenge to the document or the signature's validity, the jury was free to determine, based on the signature on the order and the other facts we have discussed, that George had knowledge of the order.
TAILORING
George argues that his conviction should be reversed because the trial court's findings of fact and conclusions of law, entered after he filed his opening brief on appeal, were tailored to his argument on appeal. We disagree.
A trial court is required to enter written findings of fact and conclusions of law whenever a hearing is held pursuant to CrR 3.5 to determine the admissibility of a defendant's statements. However, such findings and conclusions may be entered while an appeal is pending if there is no prejudice to the defendant by the delay and no indication that the findings and conclusions were tailored to meet the issues presented on appeal.
CrR 3.5(c).
State v. Quincy, 122 Wn. App. 395, 398, 95 P.3d 353 (2004).
Here, while George correctly points out that the written conclusions do not fully comport with the trial court's oral ruling, he cannot show prejudice. The disparities between the oral ruling and the written findings and conclusions relate to the circumstances of his statement to the deputies. We have already explained why the admission of the statement, even assuming error, was harmless.
We affirm the judgment and sentence.
WE CONCUR.