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State v. Hoyt

The Court of Appeals of Washington, Division Three
Oct 15, 2009
152 Wn. App. 1040 (Wash. Ct. App. 2009)

Opinion

No. 27309-1-III.

October 15, 2009.

Appeal from the Superior Court, Benton County, No. 08-1-00421-3, Carrie L. Runge, J., entered July 17, 2008.


Reversed and remanded by unpublished opinion per Kulik, J., concurred in by Schultheis, C.J., and Korsmo, J.


Justin Hoyt appeals convictions for first degree robbery with a deadly weapon and first degree burglary. He asserts that the court and the State commented on his right to remain silent and that his statements to police were inadmissible because they were not voluntary. We agree that the State commented on Mr. Hoyt's right to remain silent. We also conclude that Mr. Hoyt's statements after his request for an attorney were inadmissible. Therefore, we reverse and remand for a new trial.

FACTS

At 5:30 a.m., on April 21, 2008, Nick Coronado reported for his shift at the Safeway gas station in Kennewick, Washington. He went into the store to clock in and to pick up the keys for the kiosk. As Mr. Coronado drove from the store to the kiosk, he noticed a man leaning up against the telephone. When Mr. Coronado got out of his car, he saw the man run toward the kiosk. Mr. Coronado ran to the kiosk, unlocked it, entered it, and tried to close the door behind him, but the man, who was later identified as Mr. Hoyt, forced himself inside.

While Mr. Hoyt was trying to force himself inside the kiosk, Mr. Coronado saw that he was holding a knife with a wooden handle and a three-inch blade. Mr. Coronado noticed that Mr. Hoyt had a tattoo on his face. Mr. Hoyt demanded money. Mr. Coronado opened the cash drawer, and Mr. Hoyt grabbed the money. Mr. Coronado was frightened. He turned his back and faced the wall until Mr. Hoyt left.

The next day, surveillance cameras showed Mr. Hoyt cutting the secured lock-in pegs from MP3 players at a Target store. Police apprehended Mr. Hoyt for shoplifting. Mr. Hoyt had three MP3 players and a small, two-way radio in his possession. Police could hear a female voice over the two-way radio. Police located the woman in the store and apprehended her. The woman, Leilani Roamell, carried a two-way radio that was identical to Mr. Hoyt's radio. When Ms. Roamell was placed into custody, police took a knife from her that was in a sheath connected to the back of her belt.

MPEG (Moving Picture Experts Group) 1 audio layer 3.

When Detective John Davis questioned Mr. Hoyt, he broke down crying and said that "he's going to do life" and that he had three person-to-person crimes in Oregon. Report of Proceedings (July 8, 2008) (RP) at 95. Then, Mr. Hoyt said he was not going to talk anymore without an attorney present. Detective Davis talked to Mr. Hoyt about the Target theft. Mr. Hoyt tried to bargain with Detective Davis and said that he would provide information about methamphetamine labs in Oregon if the new charges would disappear.

The State charged Mr. Hoyt with first degree robbery with a deadly weapon enhancement, first degree burglary, and second degree theft. The robbery and burglary charges related to the incident at the Safeway kiosk. The theft charge related to the MP3 players at the Target store. At the CrR 3.5 hearing, the court determined that all of Mr. Hoyt's statements to Detective Davis were knowingly and voluntarily made after a waiver of his Miranda rights.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

During opening statement, the prosecutor forgot to remove a bullet point in one of his Power Point slides that referenced a Safeway robbery in Oregon for which Mr. Hoyt was a suspect. The parties had agreed that this robbery would not be mentioned at trial. The prosecutor made no verbal reference to the bullet point and moved on. The trial court denied Mr. Hoyt's motion for a mistrial because the slide was displayed to the jury for a very brief period.

The jury found Mr. Hoyt guilty as charged and returned a special verdict finding that Mr. Hoyt was armed with a deadly weapon during the commission of the crime of first degree robbery. This appeal follows. Mr. Hoyt challenges the robbery and burglary convictions, not the theft conviction.

ANALYSIS

Voluntary Waiver. The trial court conducted a CrR 3.5 hearing and entered an oral ruling but did not enter written findings of fact. However, Mr. Hoyt agrees that the issue as to the nature of his statements to Detective Davis can be considered based on the court's oral ruling.

Mr. Hoyt asserts that his statements to Detective Davis were not voluntary. He maintains that he was extremely emotional and that his statements were not a confession but were contemporaneous and inseparable from his request for an attorney.

A suspect who has been advised of his or her Miranda rights against self-incrimination may waive those rights provided the waiver is made knowingly and intelligently. Miranda, 384 U.S. at 444. The State must demonstrate that the defendant was fully advised of his rights, understood them, and knowingly waived them. State v. Terrovona, 105 Wn.2d 632, 646, 716 P.2d 295 (1986). To determine voluntariness requires an inquiry into whether, considering all of the circumstances, the confession was coerced. State v. Broadaway, 133 Wn.2d 118, 132, 942 P.2d 363 (1997).

The trial court found that Detective Davis read Mr. Hoyt his Miranda warnings and asked Mr. Hoyt if he understood his rights. The court also found that Mr. Hoyt acknowledged that he understood his rights and that he agreed to talk to the detective. The court found that Mr. Hoyt made a statement that he was going to do life, and later acknowledged that he would not talk any further without an attorney.

Mr. Hoyt contends that his request for an attorney, and the reasons for that request, were contemporaneous and inseparable from his statements. However, the court found that Mr. Hoyt made the statement that he was going to do life and "at some point, later acknowledged that he would not talk any further without his lawyer." RP at 15.

Mr. Hoyt points out that this court must consider the totality of the circumstances. He maintains that the waiver was not voluntary because he was extremely emotional. The trial court found that Mr. Hoyt was "crying, bawling or sobbing," and that he was "obviously emotional." RP at 15. However, the court also found that Detective Davis testified that Mr. Hoyt "appeared to understand what was being said, answered statements or questions appropriate to the questions that were asked." RP at 16.

Based on the trial court's unchallenged findings, we conclude that the statements Mr. Hoyt made after the waiver of Miranda warnings, and before his request for an attorney, were admissible. Specifically, the admissible statements were that Mr. Hoyt "[was] going to do life" and that he had "three person-to-person crimes out of Oregon." RP at 95.

After Mr. Hoyt requested an attorney, Detective Davis stopped questioning Mr. Hoyt about the Safeway robbery but began questioning Mr. Hoyt about the Target theft. Mr. Hoyt's statements following his request for an attorney are not admissible and should be excluded upon retrial. When asked about the Target incident, Mr. Hoyt again commented that it would be his third strike felony and "any felony [is] life." RP at 95.

Our Supreme Court clearly articulated the safeguards required by Miranda and Edwards v. Arizona in its decision in State v. Stewart, 113 Wn.2d 462, 465-66, 780 P.2d 844 (1989). While an accused may waive the right to counsel, once he or she invokes that right, it will not be presumed that the waiver continues because he or she responds to further questions. " Miranda established the right to the presence of counsel when requested during custodial interrogation. Then, to protect the integrity of the Miranda rule, Edwards established an exclusionary rule in the event evidence is obtained in counsel's absence, after the accused has requested counsel's presence." Stewart, 113 Wn.2d at 466.

Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981).

Here, Mr. Hoyt initially waived his right to counsel. Then he requested an attorney. The officer continued to question Mr. Hoyt in violation of his right to counsel.

Comment on Right to Remain Silent. The court instructed the jury that Mr. Hoyt's request for an attorney should only be considered with regard to the timing of the request, not to infer guilt. Immediately prior to Detective Davis's testimony, the trial court read the following instruction to the jury:

Ladies and gentlemen, before we get started, I have a couple of instructions to read to you, now. The defendant's request for an attorney in this case can only be considered by you concerning the . . . timing of the request. The defendant's request for an attorney may not be used by you to infer guilt in this case.

RP at 83-84.

Detective Davis then testified about Mr. Hoyt, stating: "[B]ased on that, because this would put him for life, he wanted to — he wouldn't speak to me any further without a lawyer present." RP at 95.

During closing, the prosecutor stated:

And because of that, he says I'm not gonna talk to you about this robbery anymore. But then he says, well, maybe I'll talk to you about the theft. But when he learns that's a felony, he says I'm not talking about that, either. Any felony is gonna get me life.

RP at 141 (emphasis added).

The prosecutor also stated that:

You take what the defendant said to Detective Davis and what he didn't say to Detective Davis and you add that with the physical evidence.

RP at 142 (emphasis added).

Mr. Hoyt contends that the jury should not have been informed of his request for an attorney. He argues that statements about his request for an attorney constituted an adverse and prejudicial comment on his exercise of his constitutional right to remain silent. We agree.

The State cannot comment on a defendant's right to remain silent. As the court explained in State v. Romero, 113 Wn. App. 779, 790, 54 P.3d 1255 (2002):

First, it is constitutional error for a police witness to testify that a defendant refused to speak to him or her. Similarly, it is constitutional error for the State to purposefully elicit testimony as to the defendant's silence. It is constitutional error also for the State to inject the defendant's silence into its closing argument. And, more generally, it is constitutional error for the State to rely on the defendant's silence as substantive evidence of guilt.

(Citations omitted.)

Here, the State elicited testimony directly commenting on Mr. Hoyt's right to remain silent. The court underscored this testimony by giving its cautionary instruction. This instruction also commented on Mr. Hoyt's constitutional right to remain silent.

Such an instruction in a case where a verdict has been returned is presumed to be prejudicial and not harmless. State v. Wanrow, 88 Wn.2d 221, 237, 559 P.2d 548 (1977). Detective Davis's testimony, the court's instruction, and the State's closing argument each constituted constitutional error.

Our courts employ the "overwhelming untainted evidence" test in determining whether constitutional error is harmless. State v. Ng, 110 Wn.2d 32, 38, 750 P.2d 632 (1988). Under that test, we look only at the untainted evidence to determine if the evidence alone is so overwhelming that it necessarily leads to a finding of guilt. Id. The burden falls on the State to prove that the error did not cause prejudice. State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996). The State must prove that the constitutional error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).

The State asserts that the prosecutor did not comment about Mr. Hoyt's request for an attorney during closing. Without citation to authority, the State contends that any error was harmless because of the cautionary instruction. But the prosecutor exploited Mr. Hoyt's exercise of his right to silence in his closing argument. The prosecutor apparently believed Mr. Hoyt's silence was important enough to emphasize to the jury, but now argues it was harmless. The State cannot use a criminal defendant's constitutional rights against him. Easter, 130 Wn.2d at 236. We conclude that the State has not met its burden to prove that the error did not cause prejudice. Accordingly, we reverse and remand for a new trial.

A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

SCHULTHEIS, C.J. and KORSMO, J., concur.


Summaries of

State v. Hoyt

The Court of Appeals of Washington, Division Three
Oct 15, 2009
152 Wn. App. 1040 (Wash. Ct. App. 2009)
Case details for

State v. Hoyt

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. JUSTIN W. HOYT, Appellant

Court:The Court of Appeals of Washington, Division Three

Date published: Oct 15, 2009

Citations

152 Wn. App. 1040 (Wash. Ct. App. 2009)
152 Wash. App. 1040