Opinion
No. 59768-0-I.
August 25, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 06-1-01229-6, Michael T. Downes, J., entered March 27, 2007.
Affirmed by unpublished opinion per Cox, J., concurred in by Agid and Ellington, JJ.
UNPUBLISHED
Custodial interrogation of a suspect includes express questioning as well as "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." In addition, questions by police that are strictly limited to clarifying an equivocal request for counsel are permitted.
Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980).
State v. Aten, 130 Wn.2d 640, 665-66, 927 P.2d 210 (1996) (citing State v. Robtoy, 98 Wn.2d 30, 39, 653 P.2d 284 (1982)); State v. Radcliffe, 139 Wn. App. 214, 224, 159 P.3d 486 (2007), review granted, 163 Wn.2d 1021, 180 P.3d 1293 (2008); State v. Walker, 129 Wn. App. 258, 274-76, 118 P.3d 935 (2005), review denied sub nom., State v. Garrison, 157 Wn.2d 1014, 139 P.3d 350 (2006).
Here, the State essentially concedes that it failed in its burden to prove the adequacy of Miranda warnings given to William Lance after he was taken into custody. But none of the custodial statements by Lance that the trial court admitted into evidence were made in response to interrogation. Moreover, all questioning of police after his equivocal request for counsel was strictly limited to clarifying his request. Finally, any error by the trial court in applying CrR 3.1 to this case was harmless. We affirm.
Brief of Respondent at 10 n. 3 ("The State does not contest the trial court's findings that the State failed to prove that proper warnings were given.").
Lance's girlfriend, Karen Brooke, came to visit him at his Bothell home. When Lance answered the door, she found his roommate, Darrell Plumb, lying on the floor in the doorway. Lance told Brooke that Plumb had come home drunk the night before.
Plumb did not respond when Brooke loudly called his name or touched his arm. She saw that Plumb's face was red, blue, and "all different colors." Brooke suspected he was dead, but delayed calling police until the next morning for reasons not relevant to this opinion.
Police arrested Lance and took him into custody. Police discovered Plumb's body buried in a shallow grave in the back yard. The State charged Lance with one count of first degree murder. Lance moved to suppress statements that he made after being taken into custody.
Detective Greg Sanders testified at the suppression hearing that he read Lance his Miranda rights from a card borrowed from another officer. According to the detective, he asked Lance if he understood his rights and Lance replied that he did. The detective then asked if he wanted to talk to police. Lance responded that it was a serious charge and, "I might want to talk to a lawyer. I might talk to you."
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Without further communication with Lance, police transported him to the Snohomish County Sheriff's Office. On arrival there, Lance was placed in an interview room. Detective Sanders and Detective George Wilkins met with Lance.
Detective Sanders asked Lance if he remembered the rights that had been read to him just after his arrest. Lance nodded that he did. As soon as he nodded, Lance began making comments that were unresponsive to any questions. He said that Plumb was a drunk and was about to move out. Lance then told police he was going to tell them the truth. Next, he said, "I think I should have a lawyer." Without any comments by police, Lance continued talking and said "it was self defense." He also said that he thought Plumb was alive, and that he took Plumb outside because he thought fresh air would be good for him.
Because Lance had started to talk about the crime and also stated he should have a lawyer, Detective Sanders asked whether Lance wanted a lawyer or to talk to police. Lance indicated he wanted a lawyer. Detective Sanders then ceased all questioning.
Detectives transported Lance to the Snohomish County Jail. After Lance was booked into jail, detectives continued to execute their search warrant by taking photos and collecting Lance's DNA and clothing. They did not ask Lance any questions but communicated to him what they were doing. During this time, Lance made statements about an old injury to one of his fingers. Lance expressed some concern about his medications. He also told one of the detectives that something was wrong with his shoulder or neck, a dislocation or torn rotator cuff, and that he was scheduled for surgery in three weeks. Neither the detectives nor jail staff informed Lance how to contact counsel.
The trial court generally denied the suppression motion, excluding only some of the custodial statements by Lance. Thereafter, a jury found Lance guilty of first degree murder.
Lance appeals.
CUSTODIAL INTERROGATION Adequacy of Warnings
Lance contends that the State failed in its burden to prove that he received adequate Miranda warnings. The State properly concedes that this record fails to show that it met its burden in this respect.
See Miranda, 384 U.S. at 475 ("[A] heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel."); State v. Erho, 77 Wn.2d 553, 557-60, 463 P.2d 779 (1970) (holding that the State failed to carry its burden of proving that adequate Miranda warnings were given).
Brief of Respondent at 10 n. 3 ("The State does not contest the trial court's findings that the State failed to prove that proper warnings were given.").
Interrogation
Lance next claims the trial court erred in finding that his incriminating statements were not the product of custodial interrogation. We disagree.
Interrogation refers not only to express questioning, but also "to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect."
Innis, 446 U.S. at 301.
Not all questions asked while a defendant is in custody amount to interrogation. Likewise, not all statements obtained by police after a person is taken into custody are the product of interrogation.
United States v. Booth, 669 F.2d 1231, 1237 (9th Cir. 1981).
Innis, 446 U.S. at 299.
We review challenged findings from a suppression hearing for substantial evidence.
State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997). We note that the court reviews de novo a trial court's determination of whether a suspect is in custody.State v. Lorenz, 152 Wn.2d 22, 36, 93 P.3d 133 (2004) (citing Broadaway, 133 Wn.2d at 131). Custody is not at issue in this case.
Here, Lance assigns error to the trial court's finding that his statements at the sheriff's office were "not in response to any questions from the detectives." Substantial evidence supports this finding.
Detective Sanders testified that at the sheriff's office he asked Lance, "Do you still understand your rights that you were advised of?" Lance nodded his head "yes."
Although detectives asked no further questions, Lance then began to talk about the victim, describing him as a drunk. He told detectives:
I'm going to go ahead and tell you the truth right now.
I think I should have a lawyer but it was self-defense. I thought he was still alive and took him outside and covered him up. I thought the cold air would do him some good.
Report of Proceedings (February 8, 2007) at 42, 80-81.
Detective Sanders testified that he next asked Lance, "Do you want to talk to us or do you want a lawyer?" When Lance answered that he thought he should have a lawyer, the detectives ceased all questioning.
The detective's initial question in the interview room was, "Do you still understand your rights that you were advised of?" That was proper in order to determine whether detectives could interview Lance. The question asked nothing about the alleged crime. After Lance nodded "yes" in response to this question he then proceeded to volunteer additional information that was unresponsive to the question.
Lance contends that although his statements were not prompted by specific questions about the case, they were a product of interrogation. This is unpersuasive.
Lance relies on State v. Sargent, in which our supreme court held that a parole officer's question, "Did you do it?" to the suspect while in custody amounted to custodial interrogation. Unlike in Sargent, however, the question asked here was not the functional equivalent of "Did you do it?" Asking whether Lance understood his constitutional rights is distinct from asking if he committed the murder. The question asked here was not reasonably likely to elicit an incriminating response.
111 Wn.2d 641, 650, 762 P.2d 1127 (1988).
Lance next argues that the detectives' words and actions amounted to a compelling request for more information about the murder. He contends that detectives clearly should have known their express questions as well as their words and actions were likely to illicit an incriminating response rather than a simple "yes" or "no" answer from Lance. But there is nothing to suggest that Detective Sanders reasonably should have known that asking this question in the setting of the interview room would likely prompt Lance to confess his involvement with the murder. Moreover, the question easily could have been answered by either a "yes" or a "no." Nothing about the question suggested that a more detailed response was required.
Relying on Oregon v. Bradshaw, Lance next argues that once a suspect invokes the right to counsel, officers may not initiate any discussion with the suspect unless counsel is present. He contends that by transporting him to the interview room and asking whether he still understood his rights, detectives attempted to open up a discussion relating to the investigation. This, he argues, amounts to interrogation.Bradshaw does not support this argument.
462 U.S. 1039, 103 S. Ct. 2830, 77 L. Ed. 2d 405 (1983).
The Bradshaw court addressed the question of whether a suspect's question to police, after he requested a lawyer, constituted "initiating" further communication underEdwards v. Arizona. In determining what kind of question "initiates" communication, the court stated:
451 U.S. 477, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981) ("[A]n accused . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.").
[T]here are undoubtedly situations where a bare inquiry by either a defendant or by a police officer should not be held to "initiate" any conversation or dialogue. There are some inquires, such as a request for a drink of water or a request to use a telephone that are so routine that they cannot be fairly said to represent a desire on the part of an accused to open a more generalized discussion relating directly or indirectly to the investigation. Such inquires or statements, by either an accused or a police officer, relating to routine incidents of the custodial relationship, will not generally "initiate" a conversation in the sense in which that word was used in Edwards.
Bradshaw, 462 U.S. at 1045.
Here, unlike in Bradshaw, Detective Sanders' question did not evince a desire for a general discussion about the investigation. Rather, the question focused on a preliminary matter, whether Lance still understood his constitutional rights under Miranda.
Lance next argues, without citation to any pertinent authority, that incriminating statements are admissible only when they are made without prompting by police. Although Lance's statements followed Detective Sanders' question, they were not prompted by the question. The record shows that no one prompted Lance to talk about the crime. His statements were volunteered.
State v. Eldred, 76 Wn.2d 443, 447-48, 457 P.2d 540 (1969) (voluntary statement overhead by police admissible at trial because not the product of custodial interrogation); State v. Ortiz, 34 Wn. App. 694, 698, 664 P.2d 1267 (1983) (spontaneous confession made to officer transporting defendant to jail on unrelated charge not the product of custodial interrogation); State v. Fullen, 7 Wn. App. 369, 372-74, 499 P.2d 893 (1972) (defendant's confession to an unrelated crime made to an officer responding to the scene of a motel disturbance, who was unaware of the unrelated crime, not the product of custodial interrogation).
Volunteered statements, whether in response to an appropriate question or no question at all, are not barred by the constitution and are admissible. No authority Lance cites requires a different result here.
Innis, 466 U.S. at 299-300.
Relying on Smith v. Illinois, State v. Koon, and Metcalf v. State, Lance next argues that police interrogated him by asking "Do you still understand your rights that you were advised of?" after he invoked the right to counsel. But these cases address situations, unlike our case, in which police communicated with the defendant after he unequivocally asked for a lawyer. Here, Lance's request was equivocal. These cases do not support the argument that Lance makes.
469 U.S. 91, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984).
704 So. 2d 756 (1997).
284 Ark. 223, 681 S.W. 2d 344 (1984).
Equivocal Request for Counsel
Lance challenges the trial court's finding that after receivingMiranda warnings, "defendant made an equivocal response in regard to whether he wanted a lawyer or whether he wanted to talk to police." This finding is also supported by substantial evidence.
Clerk's Papers at 179 (Conclusion of Law 5).
Detective Sanders testified that Lance responded toMiranda warnings at the time of his arrest by saying "I might want to talk to a lawyer. I might talk to you." The detective testified that he thought the statement was ambiguous and that he did not know whether Lance wanted a lawyer or wanted to talk to police. We agree with the assessment that the statements were ambiguous on whether Lance sought counsel.
Report of Proceedings (February 8, 2007) at 35.
Id.
Lance contends that detectives failed to "scrupulously honor" his right to confer with counsel before allegedly continuing with interrogation. This is incorrect.
Lance misconstrues the requirements of bothMiranda and Edwards.
Miranda, 384 U.S. at 444-45 (If the accused indicates "in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.").
Edwards, 451 U.S. at 484-85 (Having expressed a desire to deal with the police only through counsel, the accused "is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.").
Where there has been no invocation of the right to counsel, the prohibitions of Miranda and Edwards do not apply. Here, there was no unequivocal invocation of the right to counsel at the scene of arrest.
Alternatively, Lance argues that after his equivocal request for a lawyer, detectives were required to cease all questioning other than to clarify whether he wanted counsel. Controlling case authority from the United States Supreme Court does not support this claim.
Under Miranda, if the accused indicates in any manner at any stage of the process that he wishes to consult with an attorney before speaking, there can be no further questioning. Here, the question is whether all questioning must cease after an equivocal request for counsel.
Miranda, 384 U.S. at 444-45, 474.
In State v. Walker, this court held that the invocation of the Fifth Amendment right to remain silent must be clear and unequivocal to be effective. "[I]f the invocation is not clear and unequivocal, the authorities are under no obligation to stop and ask clarifying questions, but may continue with the interview."
State v. Walker, 129 Wn. App. 258, 276, 118 P.3d 935 (2005), review denied sub nom., State v. Garrison, 157 Wn.2d 1014, 139 P.3d 350 (2006).
Id.
This court reached that result after considering federal and state authorities on the question. This court noted that our supreme court adopted a rule in 1982 in State v. Robtoy that "any questioning after the equivocal assertion of the right to counsel must be strictly confined to clarifying the suspect's request." This court then went on to note that the United States Supreme Court, in Davis v. United States, stated a different rule. Under that rule, the court declined to adopt a rule requiring officers to ask clarifying questions when presented with an ambiguous or equivocal request for counsel. Noting that a plurality of our supreme court failed to cite Davis in State v. Aten, this court concluded that it was unlikely that our supreme court would reject a directive from the United States Supreme Court without explanation. Accordingly, our court looked to Davis for guidance.
98 Wn.2d 30, 39, 653 P.2d 284 (1982).
Walker, 129 Wn. App at 274 (quotingRobtoy, 98 Wn.2d at 39).
512 U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994).
Walker, 129 Wn. App. at 275.
130 Wn.2d 640, 927 P.2d 210 (1996).
Division Two of this court recently citedWalker with approval on the question whetherDavis controls the issue of equivocal references to attorneys. See State v. Radcliffe, 139 Wn. App. 214, 159 P.3d 486 (2007) (holding that after defendant made equivocal statement regarding whether he wanted a lawyer, detective not obligated under Fifth Amendment to cease questioning or clarify request), review granted, 163 Wn.2d 1021, 180 P.3d 1293 (2008).
Here, Lance's initial request for counsel was equivocal. He stated "I might want to talk to a lawyer. I might talk to [the police]." Thus, the police were not required to cease all questioning under Davis. Detectives did not violate Lance's constitutional rights by further questioning him at the station following his equivocal request for counsel after arrest.
Moreover, Lance cites no authority to support his assertion that detectives should have asked him a different question to clarify his equivocal statements, or that Detective Sanders' question was improper.
Lance next argues that Robtoy controls here. He is wrong. Robtoy does not control this constitutional question. Davis does, as we have explained.
See Robtoy, 98 Wn.2d 30 (holding that questioning after an equivocal assertion of the right to counsel must be strictly confined to clarifying request).
See Davis, 512 U.S. at 461 (holding that "after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney.").
Lance next argues that Davis does not control because it addresses what a suspect must do to invoke his right to counsel after having initially waived it. He claims that case does not control where an equivocal request for counsel is not preceded by a waiver. This is a distinction without a difference under these circumstances. Because there was no interrogation and Lance's statements were volunteered, the absence of proof of the adequacy of Miranda warnings and the absence of any waiver is irrelevant in reaching a proper resolution of the dispositive issue. Lance cites no persuasive authority to the contrary.
Finally, Lance argues that it is within our supreme court's authority to enact a procedural rule that requires police to clarify equivocal requests for counsel before waiver occurs. The supreme court has not adopted such a rule, and this court has no authority to do so.
See General Rule 9.
Criminal Rule 3.1
Lance also argues that the State violated CrR 3.1 because police did not immediately inform him of his right to court-appointed counsel when he was taken into custody. He also contends police did not provide access to an attorney at the earliest opportunity. We hold that any error by the trial court in applying CrR 3.1 to Lance's motion was harmless.
CrR 3.1(b)(1) states, "The right to a lawyer shall accrue as soon as feasible after the defendant is taken into custody, appears before a committing magistrate, or is formally charged, whichever occurs earliest." CrR 3.1(c) further requires:
CrR 3.1(b)(1).
(1) When a person is taken into custody that person shall immediately be advised of the right to a lawyer. Such advice shall be made in words easily understood, and it shall be stated expressly that a person who is unable to pay a lawyer is entitled to have one provided without charge.
(2) At the earliest opportunity a person in custody who desires a lawyer shall be provided access to a telephone, the telephone number of the public defender or official responsible for assigning a lawyer, and any other means necessary to place him or her in communication with a lawyer.
CrR 3.1(c)(1)-(2).
Violation of this court rule requires suppression of evidence tainted by the violation. But a violation of this court rule, as distinct from a violation of the federal or state constitutions, requires application of the less stringent harmless error test. Under this test, a violation of the court rule "is prejudicial if, `within reasonable probabilities, [if] the error [had] not occurred, the outcome of the trial would have been materially affected.'"
City of Spokane v. Kruger, 116 Wn.2d 135, 146, 803 P.2d 305 (1991) (applying the rule to JCrR 2.11, analogous rule to CrR 3.1).
State v. Templeton, 148 Wn.2d 193, 220, 59 P.3d 632 (2002).
Id. at 220 (quoting State v. Neal, 144 Wn.2d 600, 611, 30 P.3d 1255 (2001) (quoting State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986)) (alteration in original).
Here, the trial court ruled that there was no violation of the rule prior to Lance's invocation of the right to counsel that ended the interview in the interview room. The court also ruled that once Lance invoked the right to counsel, it was not unreasonable for the detectives to continue to finish collecting evidence from him prior to giving him access to a telephone. Finally, the court ruled that once the gathering of evidence at the jail was finished, the detectives should have given Lance access to a telephone so that he could contact counsel. Accordingly, the court suppressed, in the State's case in chief, certain statements that Lance made at the jail.
On appeal, Lance argues that all statements following his arrest should have been suppressed. Based on the absence of proof in the record that the detectives advised him of his rights, as the rule requires, he claims they violated the rule. Likewise, he claims they could have provided him with a cell phone to contact counsel at the scene of arrest and did not do so.
The State fails to respond to these arguments in its brief. At oral argument, the State indicated that the trial court properly resolved the CrR 3.1 challenge in its rulings on the suppression motion.
We need not decide whether the trial court's rulings on CrR 3.1 were correct. Assuming without deciding that police violated CrR 3.1, any error was harmless.
This record contains overwhelming evidence of Lance's guilt apart from the statements he made to police. Forensic evidence showed that Plumb's blood was splattered on walls and ceilings throughout rooms of the house. Blood evidence showed that the attack on Plumb began in his bedroom and continued down the hallway and onto the porch. Plumb's blood and facial hair were found on jeans worn by Lance. An autopsy showed that Plumb had 48 external injuries. In addition, his internal injuries include those caused by numerous blows to the head, strangulation, liver lacerations, and broken ribs.
The jury also heard evidence that Lance left Plumb's body lying on the living room floor for a day and a half. Witnesses testified that Lance disdained Plumb and suggested killing him. And the jury heard about the history of fights, injuries, and violence that Lance had inflicted on Plumb. Witnesses also testified that on the day he died, Plumb had missing teeth and a swollen nose from one of Lance's beatings.
Considering the nature and volume of the evidence before the jury here, Lance fails to show how the outcome of his trial, where the evidence proved he was the murderer, would have been materially affected had his volunteered statements to police been excluded.
We affirm the judgment and sentence.
WE CONCUR: