Opinion
No. 55881-1-I.
April 23, 2007.
Appeal from a judgment of the Superior Court for King County, No. 03-1-04001-7, Helen Halpert, J., entered March 4, 2005.
Affirmed by unpublished opinion per Agid, J., concurred in by Appelwick, C.J., and Schindler, J.
Herbert Riggins challenges his conviction for Attempted Murder in the First Degree and two counts of Aggravated Murder in the First Degree. He asserts the trial court should have granted his motion to dismiss under CrR 8.3(b) because the prosecutor committed governmental misconduct when he advised the police that a court order was invalid. The order, issued by the King County Superior Court, purported to allow his attorney for a Seattle Municipal Court assault charge access to Riggins at Harborview Hospital, where he was being held pending the King County Prosecutor's charging decision in the murder cases. We hold the trial court was correct when it denied Riggins' motion to dismiss. The deputy prosecutor's actions were not government misconduct because the superior court order was invalid on its face. In addition, the police stopped questioning Riggins until the parties could appear before the court the next day, thus maintaining the status quo. The prosecutor's actions did not violate Riggins right to remain silent or to counsel because, by the time the order permitting his misdemeanor attorney to see him was issued, he had already waived his Fifth Amendment right to counsel and confessed to the murders. His Sixth Amendment right to counsel had not yet attached because he had not yet been charged with any crime associated with the murders. We affirm.
STATEMENT OF FACTS PROCEDURAL HISTORY:
On January 15, 2003, Herbert Riggins was charged in Seattle Municipal Court with assault in the fourth degree for hitting his girlfriend, Kathy Johnson. Attorney Cathy Gormley represented him on that charge. The trial court issued a no-contact order to protect Johnson, and Riggins was released pending a February 10, 2003 hearing. On January 20, 2003, he joined Kathy at Swedish hospital for the birth of her grandchild. He left the hospital with Kathy's two sons, nine-year-old David Rodriguez and twelve-year-old Jamare Johnson, went to Kathy's house, and cooked dinner. That evening, Riggins met with his sister, Yolanda, at a friend's house where he got some crack cocaine and smoked sherm "sticks." Kathy went home later that evening with her granddaughter, two-year-old Brianna. Kathy's daughter, Tashema, spoke with her mother at around 10:45 that evening. Kathy was preparing to go to bed and planned to sleep in the back bedroom with her son David.
Yolanda described "sherm" as embalming fluid, and "sticks" as cigarettes dipped in the fluid.
Tashema couldn't contact her mother the next morning and called the police when she learned the boys did not show up for school. At Kathy's home, police found Riggins lying on the bathroom floor, unconscious and foaming at the mouth. Jamare and David were dead, and Kathy was badly injured, struggling to breathe on the bedroom floor where David was killed. A bloody hammer and a knife were lying on cushions in the living room near the hide-a-bed where Jamare's dead body lay. There was a significant amount of blood on the hide-a-bed and more spattered on the adjacent wall. Two-year-old Brianna was standing by the hide-a-bed wearing her pajamas; she appeared to be in shock. Kathy and Riggins were taken to Harborview Hospital.
Kathy's life-threatening injuries included multiple stab wounds to her back and head and a depressed skull fracture. She underwent six and one-half hours of surgery and spent several weeks in the hospital, including time in intensive care and a rehabilitation facility.
The police investigation uncovered Jamare's blood on Riggins's pajama bottoms, sweatshirt, socks, and right hand and a mixture of Jamare and Kathy's blood on Riggins' left hand.
At Harborview, Riggins was placed under guard and treated for an overdose of prescription drugs, alcohol, and other illegal substances, including PCP and cocaine. That night, Detectives Gene Ramirez and Daniel Dudik attempted to interview Riggins but were unable to do so because he was unconscious and unresponsive. When they returned the next night, Riggins was conscious but drowsy and slurring his words. The detectives left because they were unable to understand him.
The next morning the detectives found Riggins conscious but "droopy-eyed" and sleepy. After they read Riggins his Miranda rights, he signed a waiver and responded to their questions. Riggins said he left the hospital the day before with David, Jamare and Brianna, took them to Kathy's home, and cooked dinner for them. After dinner he smoked some "sherm" and drank wine. He said he attempted suicide by taking pills from the medicine cabinet because Kathy was moving back to Massachusetts. During this conversation, Riggins appeared sleepy, so the detectives told him they would return later. They returned at 8:15 p.m.
Miranda v. Arizona, 396 U.S. 868, 90 S. Ct. 140, 24 L. Ed. 2d 122 (1969).
On January 23, 2003, Ann Harper, the Chief Administrator for the King County Office of Public Defense (OPD) appointed Associated Counsel for the Accused (ACA) to provide "substantial advice of rights" to Riggins because she heard about the murders on the news. ACA appointed Gary Davis as the attorney-of-the-day to advise Riggins on the murders. At that time, Harper knew Riggins had not been charged with any crimes in connection with the murders. Davis and Gormley tried to speak with Riggins, but hospital personnel denied them entry to the intensive care unit. After attempting to contact Riggins several times, Davis called Detective Dudik and told him that he was appointed to represent Riggins on the homicide investigation and wanted to be present during any interrogation.
After Dudik spoke with Davis, he and Detective Ramirez returned to the hospital to speak with Riggins. After they repeated the Miranda warnings, Riggins indicated that he understood them, recognized his signature on the waiver form from earlier in the morning, and agreed to speak with the detectives. He did not sign a new waiver, and neither detective told him that Davis wanted to contact him. During this interview, Riggins said he could not remember anything and had blacked out.
When the detectives told him that David and Jamare died and that Kathy might die, he said, "If she dies, she dies." When they asked him about Brianna, Riggins said "Brianna did not get hurt." Detectives told Riggins the victims' family wanted to know if the boys were asleep or awake when they were killed. Riggins told them everyone was asleep. He then confessed to attacking Kathy, David, and Jamare with a hammer and knife. After he confessed, Riggins said he was tired but would give a taped statement after he slept.
During this time, Davis and Gormley kept trying to contact Riggins. Harborview Director of Patient Relations, Tracey Gooding, told them that Riggins was medically unable to have visitors. Gormley then sought an ex parte order from King County Superior Court Judge Michael Spearman. He signed an order giving Davis and Gormley immediate, private access to Riggins. Gormley and Davis returned to Harborview with the order, but the officer guarding Riggins' room would not let them in. Detective Dudik contacted Hugh Barber, the deputy prosecutor assigned to the investigation, who agreed to meet the detectives at the hospital.
Barber looked at the order and contacted Jim Whisman, the head of the King County Prosescutor's Office Appellate Unit, and Jeff Baird, the head of the Most Dangerous Offender Project (MDOP), for advice. They concluded that the order was not valid because the court entering the order did not have jurisdiction to issue it. Where the order should have had a cause number, it said only "investigation." In addition, the prosecutors knew the homicides had not yet been charged, and the signature line for the deputy prosecuting attorney was blank. Gormley told Barber she wanted to see Riggins to speak to him about the municipal court matter, but Barber told her he thought the order was invalid. In order to maintain the status quo until the question could be resolved, Barber instructed the detectives not to speak to Riggins until the attorneys could appear before Judge Spearman the next day.
The next morning Judge Spearman held a hearing with all attorneys present, including Sean Sheehan, who represented the City of Seattle on Riggins' misdemeanor matter. At the hearing, Gormley told the court she wanted to speak to Riggins about the misdemeanor assault and needed immediate access. Sheehan argued the issue should have been resolved by the Seattle Municipal Court because the assault charge was pending there, not in superior court. He offered to dismiss the misdemeanor charge. Davis agreed the issue of prejudice would be moot if the misdemeanor charge were dismissed, but asked the court to order immediate access for Gormley in the interim. Judge Spearman stated that he had assumed Gormley was representing Riggins on a superior court matter and had not noticed either the lack of a cause number or the word "investigation" in its place when he signed the order the day before. The court also recognized it did not have jurisdiction over the municipal court matter and that because no charges had been filed for the murders, no Sixth Amendment right to counsel had attached. Because the prosecutor had a valid Miranda waiver, the court ruled it had no basis for the access order.
Later that day, the City of Seattle dismissed the misdemeanor charge against Riggins, and Judge Spearman quashed the access order. Dudik and Ramirez then returned to Harborview and obtained a tape-recorded statement about the murders. Riggins was discharged from the hospital later that day.
While he was incarcerated, Riggins told his sister Yolanda "like I'd [sic] said, it says to [sic] death do us part. She got what she deserved," and indicated his ring finger. He also told her his cellmates told him to "play crazy" so he could go to Western State Hospital and not do much time. Riggins asserted a diminished capacity defense, and Dr. Barry Ward did a psychological evaluation of him at Western State Hospital. Dr. Ward concluded Riggins was not a good reporter of his own symptoms and suspected Riggins was malingering. He diagnosed Riggins with polysubstance abuse, adjustment disorder with mixed features of anxiety and depression, the possibility of substance-induced psychotic disorder, borderline intellectual functioning, and antisocial personality disorder. Dr. Ward concluded that Riggins had the capacity to form the intent to commit the crimes on the day of the murders. Dr. Murray Hart, manager of the inpatient forensic evaluation program at Western State Hospital concurred with this opinion. Dr. Robert Heilbronner, a defense witness, testified that Riggins' ability to form the intent to kill was diminished at the time of the murders, but he agreed there was evidence of malingering both in the tests conducted at Western State and in his own testing.
Test results suggested that Riggins was motivated to perform poorly.
Before trial, Riggins moved to dismiss the charges under CrR 8.3(b) based on government misconduct. Riggins also argued that his taped statement should be suppressed because the State had violated his due process rights. The court denied the motion to dismiss.
The failure to honor the Court order, I — it's a troubling situation. We have an ex parte order that clearly is valid, the ideal situation would have been, if possible, to get Judge Spearman on the phone for a telephone conference, and to deal with it in that context. This was a truly unusual situation. In fact, I think it is unlikely the Court does have jurisdiction under a writ procedure, so we have an order that appears to be valid, however, given that ultimately the status quo was maintained, that it was certainly after Court hours so that discretionary review could not have been sought, was probably not practical to try to reach another judge, holding the status quo and having no one talk to Mr. Riggins until the order could be reviewed, is not so shocking or outrageous as to be a due process violation.
The court concluded that while Judge Spearman's order may have been issued in error, it was not void and dismissal was not justified under CrR 8.3(b) or due process.
The court also denied the motion to suppress Riggins' statements to police because he knowingly, voluntarily and intelligently waived his Miranda rights. It admitted the tape recording of his confession and let the jury see the written transcript of the tape while it was being played. Riggins did not testify. The jury found Riggins guilty as charged, and the court sentenced him to life imprisonment without the possibility of parole.
DISCUSSION
Under CrR 8.3(b), a court "may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect an accused's right to a fair trial." But dismissal under the rule is not justified unless suppression of the evidence would not eliminate the prejudice caused by the misconduct. We review a trial court's decision on an 8.3(b) motion for a manifest abuse of discretion; that is, when the trial court's decision is manifestly unreasonable or it exercises its discretion on untenable grounds or for untenable reasons. A decision is manifestly unreasonable if the court adopts a view that no reasonable person would take. It is based on untenable grounds or made for untenable reasons if it rests on facts unsupported by the record or is reached by applying the wrong legal standard. Because dismissal under this rule is an extraordinary remedy granted only in "'truly egregious cases of mismanagement or misconduct,'" a trial court's decision on a motion to dismiss charges may be upheld on any ground within the pleadings and proof.
State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993).
State v. Lewis, 115 Wn.2d 294, 298-99, 797 P.2d 1141 (1990).
State v. Runquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995), review denied, 129 Wn.2d 1003 (1996).
State v. Wilson, 149 Wn.2d 1, 9, 65 P.3d 657 (2003) (quoting State v. Duggins, 68 Wn. App. 396, 401, 844 P.2d 441, aff'd, 121 Wn.2d 524, 852 P.2d 294 (1993)).
State v. Michielli, 132 Wn.2d 229, 242-43, 937 P.2d 587 (1997).
Riggins cites State v. Dailey and State v. Sherman to argue that the trial court should have dismissed the case under CrR 8.3(b) because the prosecutor acted in deliberate contempt of Judge Spearman's order. In Dailey, the Supreme Court upheld the trial court's ruling dismissing the case under CrR 8.3(b) because the State violated court orders and discovery rules and negligently handled the case by failing to provide witness lists and laboratory reports in a timely manner and allowing evidence to be destroyed. Similarly, in Sherman, the State did not comply with a discovery order for three months and withheld relevant documents and a witness list from the defense. But Dailey and Sherman are not persuasive authority on the facts in this case. In both of those cases, the State ignored unquestionably facially-valid orders for a long period of time. Here, Judge Spearman's order was invalid because the superior court lacked jurisdiction to issue an order in the Seattle Municipal Court case. Nor was there any undue delay or mismanagement by the prosecutor. Barber consulted with the heads of both the Appellate and MDOP units and made a reasonable decision under the circumstances to maintain the status quo until all parties could appear before Judge Spearman the next morning. No one questioned Riggins during this brief hiatus, and he said nothing to police until the question about the validity of the order had been resolved in the State's favor. Finally, because he had already confessed to the material facts before the superior court signed the access order, there was no prejudice to his case.
93 Wn.2d 454, 610 P.2d 357 (1980).
59 Wn. App. 763, 801 P.2d 274 (1990).
Dailey, 93 Wn.2d at 456-60.
Sherman, 59 Wn. App. at 765.
Under CrR 8.3(b), the court cannot dismiss a prosecution unless the misconduct materially affects the defendant's right to a fair trial. There must be more than the mere possibility of prejudice. The defendant must demonstrate actual prejudice. Riggins argues he was prejudiced because he gave a taped confession to police without the advice of counsel.
State v. Rohrich, 149 Wn.2d 647, 658, 71 P.3d 638 (2003).
Under the Sixth and Fourteenth Amendments, Riggins did not yet have a right to counsel for the murder investigation because he had not yet been charged. The Sixth Amendment right to counsel is offense-specific and does not attach until formal adversarial judicial proceedings are initiated. And, as the Supreme Court held in State v. Stewart, the police do not violate a defendant's rights by questioning him about events unrelated to other charges that have been filed. Thus, while charges had been filed against Riggins in the earlier misdemeanor assault case, because no charges arising from the murders were filed when police questioned him about them and he made a taped confession, the State did not violate his right to counsel for the murders.
See State v. Corn, 95 Wn. App. 41, 62, 975 P.2d 520 (1999); see also State v. Bradford, 95 Wn. App. 935, 947-48, 978 P.2d 534 (citing State v. Earls, 116 Wn.2d 364, 374 n. 5, 805 P.2d 211 (1991)), review denied, 139 Wn.2d 1022 (1999).
Texas v. Cobb, 532 U.S. 162, 167, 121 S. Ct. 1335, 149 L. Ed. 2d 321 (2001) (quoting McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S. Ct. 2204, 115 L. Ed. 2d 158 (1991)).
113 Wn.2d 462, 468, 780 P.2d 844 (1989), cert. denied, 494 U.S. 1020 (1990).
Finally, even if the trial court found there was governmental misconduct that violated his right to counsel, the proper remedy would have been to suppress Riggins' statements, not dismissal. The trial court did not err by denying Riggins' motion to dismiss under CrR 8.3(b). Riggins also argues that his case should be dismissed because the government's conduct violated his right to due process of law. He cites State v. Lively to argue that dismissal is proper whether or not CrR 8.3(b) requires it. But Lively does not support Riggins' position. There, the Supreme Court held that a court should review a claim of outrageous governmental conduct based on the totality of the circumstances. As explained above, Riggins' Sixth Amendment right to counsel for the murders had not attached because he had not been formally charged. Further, Riggins waived his Fifth Amendment right to counsel twice before he gave a taped confession to police about the murders. The delay between the time the order was issued and Riggins' taped confession did not prejudice Riggins because the police did not talk to him until Judge Spearman had ruled on the parties' arguments. Further, Gormley told Barber that she intended to speak with Riggins about the pending misdemeanor charge, and Davis assured Judge Spearman that their only intention was to discuss the misdemeanor case with Riggins. Riggins had no Sixth Amendment right to speak with counsel during an interrogation about an unrelated, uncharged matter. Unless Riggins had invoked his Fifth Amendment rights, the police did not have to stop questioning him and permit him to speak with his attorney or tell him his attorney was there. There was no basis under Lively to dismiss the case.
See State v. Warner, 125 Wn.2d 876, 888, 889 P.2d 479 (1995).
130 Wn.2d 1, 20, 921 P.2d 1035 (1996).
Lively, 130 Wn.2d at 21.
See Bradford, 95 Wn. App. at 948 (When a defendant's Sixth Amendment right to counsel has attached on charges that have been filed, police do not violate his Fifth Amendment right to counsel when they interrogate him on unrelated charges, procure a Miranda waiver, and obtain a confession.) (citing Stewart, 113 Wn.2d at 478-79).
We affirm.
WE CONCUR: