Opinion
No. 58375-1-I.
October 1, 2007.
Appeal from a judgment of the Superior Court for Island County, No. 06-1-00021-9, Alan R. Hancock, J., entered April 28, 2006.
Affirmed by unpublished per curiam opinion.
On January 17, 2006, Patricia North returned home to find an unknown blue truck parked in her driveway. The gate and front door, which were closed when she had left, were open. Inside, she found opened closets and drawers, and muddy footprints. She came back out onto the front porch and observed a man run from the side of the house, jump into the truck, and speed off. She saw the man's profile as he ran to the truck, and viewed his face through the windshield once he got in. North wrote the license plate number on a scrap of paper and called police.
Officer Ricky Felici responded to the scene. North provided Felici with a description of the suspect. Felici found items in the yard, which North identified as being taken from inside the house. Shortly afterwards, North identified the defendant in a showup. North positively identified Shorey, but noted that she had not previously noticed his facial hair.
Earlier that day, the same blue pickup drove up the driveway at the home of Heidi Hoelting. Hoelting wrote down the license plate number before going out to confront the driver. The driver identified himself as Chris Shorey and said he was looking for work.
The morning of the burglary, the defendant was working for David Fernandez, digging a ditch at a construction site. Shorey left shortly after 9:00 a.m. to locate a co-worker. Fernandez testified that Shorey was back on the job site sometime before noon. After Officer Felici tracked the truck to Shorey, Fernandez and Shorey met with Felici. Felici arrested Shorey based on Shorey's admission that he was the only person driving the truck that day, and the fact that Shorey matched North's physical description of the suspect.
Shorey made statements to Officer Felici and Detective Daniel Todd while in custody, and defendant objected to admitting those statements at trial. Felici testified that he read Shorey his Miranda rights after arresting him, and that Shorey indicated that he understood those rights. Shorey asked Felici whether he made any deals. Felici responded that police officers are not involved in plea bargains, but those are done through the courts. Felici further stated that Detective Todd may have more information.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Shorey requested to speak with Todd at the jail. Todd met with Shorey, read him his Miranda rights and obtained a signed waiver. Shorey asked Todd whether he could make any deals, and offered to provide information about stolen goods. Todd answered that he was not in a position to make deals, but would pass it on to the prosecutor for consideration. Todd then informed Shorey that he was interested in getting the complaining party their belongings back. Shorey said he could show Todd where "the lady's" stuff was, if he could get out of jail. Todd also asked Shorey why he was burglarizing houses. Shorey responded that he does it for the rush.
The Island County prosecutor charged Shorey with one count of residential burglary. A jury found Shorey guilty as charged. He was sentenced to 29 months of confinement. Shorey appeals this conviction based on his contention that the court erred when it allowed into evidence custodial statements regarding plea bargaining, propensity evidence, and evidence of other bad acts.
Discussion
Shorey argues that his custodial statements to Felici and Todd should have been excluded because Todd prompted those statements by representing himself as an intermediary for the prosecutor. The admissibility of these statements was the subject of a CrR 3.5 hearing on March 20, 2006. Based on that hearing and additional briefing and argument, the trial court ruled that statements to Todd and Felici were admissible. The trial court concluded that State v. Pizzuto governed and that the present case was distinguishable from State v. Nowinski. Shorey argues that fundamental fairness, as discussed in State v. Bryant, requires Shorey's statements to be excluded from trial. Shorey requests the court to reconsider its holding in Pizzuto in light of our supreme court's more recent ruling in Bryant.
55 Wn. App. 421, 778 P.2d 42 (1989).
124 Wn. App. 617, 102 P.3d 840 (2004).
146 Wn.2d 90, 42 P.3d 1278 (2002).
In Pizzuto, the defendant had an outstanding arrest warrant in Idaho when he was apprehended by Seattle Police. Pizzuto told Detective Davis of the Seattle Police Department that he was concerned about receiving the death penalty in Idaho, and was willing to face trial in Washington if promised the prosecutor would not recommend the death penalty. Davis informed Pizzuto that he had no power to make such an agreement. At a second interview, Davis told Pizzuto he had communicated Pizzuto's request to the prosecutor, but that Davis himself had no authority to promise the prosecutor would not pursue the death penalty. Pizzuto then admitted to Davis his involvement in two other crimes. Pizzuto later gave a taped statement, in which he acknowledged Davis had made no promises or threats. This court held that because Pizzuto knew that Davis had no authority to bargain, the statements offered were not part of a plea bargain, even if Pizzuto hoped to benefit somehow by volunteering those statements.
Pizzuto, 55 Wn. App. at 423.
Pizzuto, 55 Wn. App. at 423.
Pizzuto, 55 Wn. App. at 423-24.
Pizzuto, 55 Wn. App. at 424.
Pizzuto, 55 Wn. App. at 424.
Pizzuto, 55 Wn. App. at 424.
Pizzuto, 55 Wn. App. at 435-36.
In the present case, as in Pizzuto, the officers communicated they were unable to bargain with Shorey. Nonetheless, Shorey offered statements in hopes that volunteering such statements would benefit him. Therefore, Shorey's statements were not part of a plea bargain.
Shorey argues that Pizzuto did not consider notions of fundamental fairness and may have been decided differently if Bryant had been decided first. But the facts of Bryant are entirely different from the present case. In Bryant, the King County prosecutor entered an agreement with the defendant, offering the defendant immunity in exchange for information. The defendant offered statements incriminating himself and others in crimes, some of which had taken place in Snohomish County. Our supreme court held that fundamental fairness required that the statements be excluded from the Snohomish County trial, because the King County prosecutor failed to inform the accused that the immunity was limited to prosecutions within King County. Fundamental fairness requires the government to honor its contractual obligations to a defendant when the defendant has completed his obligations under the agreement. Here, there was no agreement between Shorey and the government. Therefore, Bryant is inapposite.
Bryant, 146 Wn.2d at 92-94.
Bryant, 146 Wn.2d at 93.
Bryant, 146 Wn.2d at 106.
Bryant, 146 Wn.2d at 113 (citing Rowe v. Griffin, 676 F.2d 524, 528 (11th Cir. 1982)).
The trial court correctly ruled that the statements were not inadmissible under Nowinsky. In Nowinsky, the defendant had a subjective belief that he was involved in plea negotiations, and that belief was objectively reasonable under the circumstances. The prosecuting attorney was present during the custodial statements, and the detectives and prosecutor were aware that the defendant wanted something in return for his cooperation. Here, there was no evidence regarding Shorey's subjective belief. The prosecutor was not present, and the officers clearly communicated that they did not have authority to bargain.
Nowinski, 124 Wn. App. at 623-24.
The trial court's ruling allowing Shorey's custodial statements is affirmed.
Shorey argues that the trial court abused its discretion by allowing evidence of other bad acts under ER 401, 402, 403 and 404(b). While interviewing Shorey at the jail, Detective Todd asked Shorey why he was burglarizing houses. Shorey responded that it was all he had ever known and that he does it for the rush. This statement was made in the context of a conversation about the burglary that had happened earlier that day. It was within the trial court's discretion to find that Shorey's statement was an admission of the crime, and not evidence of prior bad acts. Shorey argues that the jury was never instructed against using this statement for propensity purposes. However, the record does not show that Shorey ever requested a limiting instruction. We affirm the trial court's ruling allowing Shorey's statement to Todd. In addition, we find the defendant's allegation of prosecutorial misconduct to be without merit.
The judgment and sentence is affirmed.
AFFIRMED.