Opinion
No. 26119-1-III.
January 13, 2009.
Appeal from a judgment of the Superior Court for Douglas County, No. 06-1-00029-7, John Hotchkiss, J., entered May 7, 2007.
Affirmed by unpublished opinion per Korsmo, J., concurred in by Kulik, A.C.J., and Brown, J.
UNPUBLISHED OPINION
Appellant Sam Key challenges his Douglas County Superior Court conviction for felony hit and run, injury accident. He argues the court erred in admitting his statement to law enforcement and that various errors deprived him of a fair trial. Finding that the statement was properly admitted and that the trial court did not abuse its discretion in denying his motion for a mistrial, we affirm.
FACTS
Erica Sanchez was significantly injured in a two car collision on SR 28 in Douglas County at 7:40 p.m. on December 24, 2005. The driver of the other car, a male, was seen fleeing on foot. Investigators discovered that the other car was registered to Louise Bianchi and found paperwork containing her daughter Peggy Bianchi's name inside the vehicle. A deputy at the scene knew that Sam Key was associated with Peggy Bianchi.
Key and Peggy Bianchi subsequently married on November 12, 2006.
Officers went to Sam Key's brother's house and learned that the brother had driven an injured Key to Peggy Bianchi's house. Officers then reached that house at 10:49 p.m. At 11:11 p.m., Ms. Bianchi opened the door to the house; Mr. Key fled to a bathroom and locked the door. He was removed and brought to the living room. He was wearing a tattered shirt and appeared injured: abrasions and bruising over his left eye, abrasions on his face and arms, and a red mark on his chest consistent with an airbag deployment. He refused medical treatment.
A trooper arrested Mr. Key and advised him of his constitutional rights. Mr. Key was very distraught and crying. His sister Carrier Prater, a juvenile probation officer, arrived at the house and was allowed to sit with him. She was about three feet away from her brother. She reminded her bother of his rights on several occasions; the trooper also readvised Mr. Key of his constitutional rights. During the interview Mr. Key would answer some questions and at other times make statements such as, "I don't know what to do." Two troopers were standing about seven feet in front of Ms. Prater and Mr. Key.
At one point Mr. Key had his head down and was crying. His sister heard him say "I don't want to say any more. I want a lawyer." Neither trooper heard any such statement. Mr. Key eventually stopped talking and was taken away to jail. There he gave a written statement to the trooper in which he admitted being involved in the accident, saw movement in the other car, and then went over the guardrail and ran off through an orchard, eventually reaching his brother's house.
Prior to trial, the court conducted a CrR 3.5 hearing to determine whether the written statement was admissible. The trial court found that Mr. Key made the statement heard by his sister, but that the two troopers did not hear the statement. The trial court found the statement admissible since there was no clear invocation of the right to counsel made to the officers. No written findings were entered.
The defense had earlier brought a CrR 3.6 motion to suppress evidence discovered as the result of an allegedly improper search. The trial court denied the motion. This appeal does not raise any issues concerning that ruling.
The parties also agreed pretrial to a motion in limine that the prosecution would not offer hearsay statements from any witnesses to the effect that they had heard that Mr. Key was involved in a collision or accident. The prosecutor gave a written instruction about the ruling to the officers.
Trial testimony described the accident and the search for the missing driver. During trial one deputy sheriff testified that he had been told by two of Mr. Key's relatives that they thought he had been in a collision. The defense objected and moved for a mistrial. The prosecutor sought an instruction to have the jury disregard the testimony; the defense opposed an instruction. The court reserved ruling until the next morning, and the day's testimony concluded 45 minutes later.
The next morning the court denied the mistrial. While finding that the motion in limine had been violated, the judge believed that no one had been "perked" by the testimony and that it was passed right by. The court also noted that the deputy had only a minor role in the trial. The defense again refused a curative instruction. Trial continued.
Peggy Bianchi testified for the defense that she had lent the car to Doug Thompson on the day of the accident; she never saw him again. Mr. Key testified that he had been assaulted by a group of individuals earlier in the day. He denied making any statements to the trooper.
In closing argument, the prosecutor stated that there was no motive for the troopers to lie about Mr. Key making a statement to them and that it would be inconsistent with their apparent concern for Mr. Key during the arrest to believe they were trying to "set him up" for the crime. In the prosecutor's view, the troopers therefore were the more credible witnesses. There was no objection to the argument.
The jury convicted Mr. Key as charged. He appealed to this court. On appeal, the parties recognized that the findings from the CrR 3.5 hearing had not been entered. The prosecution filed a motion to remand the case for entry of findings, citing to RAP 7.2(b) and RAP 9.10. This court denied the motion. The findings have still not been entered.
ANALYSIS
Missing Findings. As a preliminary matter, we note that the trial court still has not entered findings as required by CrR 3.5(c). While the official duty to enter findings rests with the court, in practice the prevailing party prepares the findings for the court. A busy trial judge is seldom going to know if a record is complete before (or after) an appeal is taken.
There was no need to seek this court's permission before entering the findings. RAP 7.2(b) expressly gives the trial court the power to settle the record of a case on appeal. The record includes the clerk's papers. RAP 9.1(c). The only time a trial court must first seek appellate court approval before entering a document is if the court's action will change a decision under appeal. RAP 7.2(e). Entry of mandatory findings will seldom meet that standard.
It was with these considerations in mind that the motion for remand was denied. There was no need to return the case to the trial court for entry of the findings. The parties should have continued efforts to enter the findings.
The absence of findings does not preclude appellate review if the court's oral ruling is sufficient to permit review of the issue. State v. Cunningham, 116 Wn. App. 219, 226-227, 65 P.3d 325 (2003). The court's oral ruling is sufficient for review of this case. Accordingly, we will proceed with the appeal rather than further await the written findings.
Admissibility of Statements. The primary issue in this appeal is whether Mr. Key invoked his right to counsel during questioning. If so, his subsequent statements to the troopers should not have been admitted. We conclude that an unarticulated or unheard request for counsel is not the equivalent of a clear invocation of the right to an attorney. Accordingly, we agree with the trial court that the statements were admissible.
When a suspect invokes his right to counsel during an interrogation, the questioning immediately must cease and the suspect afforded the opportunity to speak to counsel. Edwards v. Arizona, 451 U.S. 477, 487, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981). While that bright line rule is quite clearly stated, application of the rule in practice has proven less clear. There are numerous cases presenting the question of whether or not a suspect's statement amounted to a request for counsel. See Davis v. United States, 512 U.S. 452, 456-459, 129 L. Ed. 2d 362, 114 S. Ct. 2350 (1994) (citing cases). Because of the numerous factual contexts in which the problem has arisen, courts have turned to another bright line rule to apply the Edwards bright line rule. In order to invoke the right to counsel, there must be an explicit request for an attorney — "an equivocal request will not do." State v. Radcliffe, ___ Wn.2d ___, 194 P.3d 250, 253 (2008) (citing Davis).
We believe that a request for counsel that is not addressed to the interrogating officer simply is not an explicit request for an attorney under the Davis standard. It is law enforcement that must cease questioning when a suspect requests counsel. If the request is not made to law enforcement, there simply is no way for the officers to comply with their constitutional duty to cease questioning and provide counsel. An unexpressed desire is the same as an inadequately expressed desire. Neither is the clear explicit request for counsel that is required to invoke the protection of the Fifth Amendment.
The trial court correctly concluded that Mr. Key's failure to notify the officers that he wanted to speak to an attorney was not an invocation of the right to counsel. His statements to the troopers were properly admitted.
Mistrial. Mr. Key next contends that the trial court erred in not granting a mistrial over the violation of the order in limine. This matter was left to the discretion of the trial judge. The reasons given for denying the request are tenable. Accordingly, there was no abuse of discretion.
The improper admission of evidence at trial is considered a "trial irregularity." State v. Weber, 99 Wn.2d 158, 163, 659 P.2d 1102 (1983). When inadmissible testimony is put before the jury, the trial court should declare a mistrial if the irregularity, in light of all of the evidence in the trial, so tainted the proceedings that the defendant was deprived of a fair trial. Id. at 164. In deciding that question, a court will consider whether a curative instruction would have been useful. Id. at 165. The decision whether or not to grant a new trial due to a trial irregularity is a matter left to the discretion of the trial court since the trial judge is in the best position to assess the harm, if any, caused by the irregularity. Id. at 166. Discretion is abused when it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
The trial court correctly assessed the impact of this irregularity. While the error was potentially significant since the identity of the driver was the only issue at trial, we do not believe it so tainted proceedings that it automatically denied the defendant a fair trial. The error here was no more significant than the error found harmless in Weber. There an officer, testifying in an attempting to elude prosecution, twice told jurors that the defendant acknowledged he would be in trouble for not stopping — evidence that suggested he knew that it was a police vehicle he was seeking to evade. That evidence had been suppressed by the trial court and the defendant's knowledge of the identity of his pursuer was a significant issue at trial. Likewise here, while potentially significant, there was additional evidence, including the defendant's own statements and his injuries that linked him to the accident. In the big picture of this trial, the remark was not significant.
We also believe that the error could have been cured by an instruction to disregard the testimony. Jurors are presumed to follow instructions and disregard evidence when so instructed. State v. Stenson, 132 Wn.2d 668, 730, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). While the trial court did not give a curative instruction since the defense opposed one on tactical grounds, that does not mean than an instruction would have been futile.
Finally, the ultimate question is whether the trial judge abused his discretion in this ruling. The judge reasoned that the evidence did not cause the jury to perk up, was recited by a minor witness late in the day, and simply was not so significant in light of the rest of the testimony to single-handedly turn the tide of trial. The court's reasoning was tenable. There was no abuse of discretion. Accordingly, there was no error in denying the mistrial motion.
Closing Argument. The final argument is a contention that the prosecutor committed error in closing argument by suggesting that the troopers would have to be lying if the defendant's testimony was to be believed. There was no error.
The standards for reviewing this type of alleged error in closing argument are well settled. If there was no objection to the challenged argument at trial, relief can only be granted if the error was so egregious that it was beyond cure by the trial judge. State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046 (1991); State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988). Moreover, a prosecutor has "wide latitude" in arguing inferences from the evidence presented. Stenson, 132 Wn.2d at 727.
The prosecutor did not err in making the now-challenged argument. With respect to the argument, the prosecutor was very clearly asking the jury to focus on credibility. Two troopers testified that defendant made the statements to them. Defendant testified he did not make them. The prosecutor pointed out that if the defendant was to be believed, then the officers were framing the defendant and that their behavior toward Mr. Key on the night in question was inconsistent with such a theory. The prosecutor did not argue that to acquit Mr. Key the jury would have to find that troopers lied. Rather, the entire argument was couched in terms of credibility and the inferences to be drawn from the testimony. There was diametrically opposed testimony concerning whether or not Mr. Key made a statement to the troopers. Calling attention to the fact that the conclusion to be drawn from Mr. Key's testimony ( i.e., the troopers were lying) was inconsistent with the behavior of the officers on the night in question was not improper.
Compare State v. Castaneda-Perez, 61 Wn. App. 354, 363-364, 810 P.2d 74, review denied, 118 Wn.2d 1007 (1991).
Mr. Key has not established that the prosecutor erred in closing argument, let alone that the error was so egregious that it was beyond cure by the trial judge. Accordingly, he has not shown that he is entitled to a new trial on this basis, either.
The conviction is affirmed.
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.
KULIK, A.C.J. and BROWN, J., concur