Opinion
No. 22658-1-III
Filed: September 23, 2008
UNPUBLISHED OPINION
ORDER LIFTING STAY AND ORDER AMENDING COURT'S JANUARY 31, 2006
THE COURT upon its own motion is lifting the stay entered on January 12, 2007, and is amending this Court's opinion dated January 31, 2006, and the record and file herein, and determines the motion lifting the stay should be granted and the opinion amended. Therefore, IT IS ORDERED, the stay entered on January 12, 2007 is hereby lifted.
IT IS FURTHER ORDERED, this Court's opinion filed herein on January 31, 2006, is hereby amended as follows:
On page 13, at the end of the paragraph before the heading "D. Pro Se Additional Grounds", the following new paragraph is inserted:
This court's holding is consistent with our Supreme Court's recent decision in State v. Recuenco, 163 Wn.2d 428, 180 P.3d 1276 (2008).
Alvinita Stuart stands convicted of second degree murder. On appeal, she asserts evidence insufficiency and contends the court erred in failing to suppress evidence and ordering a firearm enhancement instead of a deadly weapon enhancement, as found by the jury. Pro se, she asserts additional grounds. We reverse the firearm enhancement and remand for further sentencing, but affirm in all other respects.
FACTS
On June 9, 2002, Alvinita Stuart shot and killed Wayne Davison, her ex-husband and the father of her two children, S.D. and P.D., outside of her Spokane home. Police responded to witness 911 calls. Officers found Mr. Davison's body lying in the street next to his car. Ms. Stuart then appeared in the home's doorway. Officers ordered her out and handcuffed her. Officer Shane Oien asked her who the shooter was. At that point, he "didn't necessarily feel that she was the primary suspect . . . and . . . wanted to find out where the shoot was." Report of Proceedings (RP) at 29. Ms. Stuart replied, "I am. I did it." RP at 30. Ms. Stuart was arrested. Officers made a protective sweep of the home and removed S.D. and P.D. Mr. Davison died at the scene from six close-range gunshot wounds.
Detective George Benevidez contacted Ms. Stuart at the police station that night and advised her of her constitutional rights. Ms. Stuart equivocally refused to waive her rights, stating, "maybe I should have an attorney." RP at 42. Despite the equivocation, Detective Benevidez ceased questioning Ms. Stuart, but asked or her consent to search the house and retrieve the gun. Ms. Stuart consented. There, police retrieved a nine millimeter High Point handgun from inside Ms. Stuart's purse. The corner of the purse appeared to have been blown out from the inside. Empty shell casings found in the purse and three bullets found in the body were connected to the gun to the gun recovered from Ms. Stuart's purse. Ms. Stuart was charged with first degree murder.
Pretrial, Ms. Stuart moved to suppress her admission that she was the shooter because officers questioned her prior to giving her Miranda warnings. The court held Ms. Stuart's statements were admissible under the public safety exception, because law enforcement was trying to get information about the location of the shooter and did not necessarily consider Ms. Stuart the primary suspect at the time.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Ms. Stuart moved to suppress the gun, arguing law enforcement violated her constitutional rights by asking for her consent after the invoked her right to remain silent. The court denied the suppression motion under the inevitable discovery exception, reasoning law enforcement had already seen the gun during the protective sweep and would have obtained a warrant had Ms. Stuart not consented.
At trial, police officers testified to responding to a shooting report at Ms. Stuart's address, finding Mr. Davison shot and killed in the street, and arresting Ms. Stuart, who told them she was the shooter. Numerous neighbors testified they had seen Ms. Stuart and Mr. Davison talking by Mr. Davison's car, heard gunshots, and saw Mr. Davison lying in the street and bleeding.
An employee of The General Store testified about Ms. Stuart's purchase of the High Point handgun and a laser sight on January 3, 2002. The State presented testimony showing Ms. Stuart went to a shooting range to learn how to use the gun, including the day before the killing. Joet Fisher, a neighbor and acquaintance of Ms. Stuart, testified Ms. Stuart had once told her she had purchased a gun and went to kill Mr. Davison for allegedly molesting P.S. and S.D., but she had changed her mind.
S.D. and P.D. both testified for the State. S.D. testified that just prior to the shooting, her mom was "really serious" and told her to go into the house. RP at 710. S.D. related she remembered her mom and dad talking about braces when she was walking to the house. Then, she heard sounds "like someone hammering a nail." RP at 715-16. She related her mom walked in the door with her purse, and told them she had shot their dad because he molested S.D. when she was little, which S.D. denied. S.D. related she and P.D. had found a gun in the laundry room about a month prior to the shooting. She stated her mom told them it was for protection and not to tell anyone about the gun. P.D. testified similarly.
The State's expert, Dr. Leslie Rawlings, determined Ms. Stuart had a personality disorder with paranoid and borderline features at the time of the shooting. He did not feel Ms. Stuart was suffering from post-traumatic stress disorder at the time of the shooting.
Ms. Stuart defended on diminished capacity and self-defense, based on years of alleged rapes and abuse by Mr. Davison and her suspicion of child abuse. She described her dating relationship with Mr. Davison in the early 1980s. The two married in 1986. According to Ms. Stuart, Mr. Davison repeatedly and violently raped her during their relationship. Ms. Stuart testified Mr. Davison abused her mentally, by telling her he would kill her or himself if she left him. Further, he told her he hated her, and called her derogatory names on a daily basis.
In about 1994, Ms. Stuart left Mr. Davison and took S.D. and P.D. to a domestic violence shelter. When the two divorced in about 1995, Mr. Davison received visitation privileges with S.D. and P.D. Ms. Stuart testified that after the divorce, Mr. Davison stalked her. She accused him of breaking into her house and threatening to kill her. She later became convinced Mr. Davison was molesting the girls. Ms. Stuart sought intervention, but the molestation accusations were determined to be unfounded.
The children continued visiting their father. In spring 2002, Ms. Stuart became increasingly concerned for their safety, partly because she thought Mr. Davison was thinking of the children in a sexual way. Ms. Stuart admitted buying a gun for protection and learning how to shoot the gun correctly.
Ms. Stuart testified about the shooting, relating she had been to the grocery store and, for the first time, had taken the gun in her purse for protection. When she returned, Mr. Davison was at her house dropping off the girls from a visitation. After the children went into the house, Mr. Davison and Ms. Stuart discussed payment for the children's orthodontic work. Reportedly, Mr. Davison stated, "[w]hen [P.D.] is a little older and she is ready I will pay for a boob job, but I am not paying for her teeth." RP at 996. Ms. Stuart said Mr. Davison made an "in-your-face" movement toward her, and she shot him for her and her children's safety. RP at 996-97. Ms. Stuart then went in the house to comfort S.D. and P.D., telling them their father could not molest them anymore.
Ms. Stuart related that Mr. Davison's statements terrified her. And "that is when he got shot." RP at 996. Ms. Stuart stated shot him because he was thinking of P.D. sexually, and she was afraid he was going to kill her so she "wouldn't be able to be there to protect [her] babies." RP at 996-97.
Dr. Brett Trowbridge testified for the defense, diagnosing Ms. Stuart as having a paranoid type of delusional disorder and post-traumatic stress disorder due to repeated rapes and abuse by Mr. Davison. He opined Ms. Stuart had a significantly diminished capacity to commit the alleged crime. Professor Karl Klingbeil testified Ms. Stuart had post-traumatic stress disorder and was a battered woman.
The jury could not reach a verdict for first degree murder, but found Ms. Stuart guilty of second degree murder with a special verdict that Ms. Stuart was armed with a deadly weapon at the time of the shooting. She was sentenced to a standard-range sentence of 180 months, and a 60-month firearm enhancement. Ms. Stuart appeals.
ANALYSIS
A. Suppression Issues
The issue is whether the court erred in denying Ms. Stuart's suppression motion to exclude evidence (the handgun and purse, including its contents) collected in the warrantless search of her home. Ms. Stuart contents her consent to search was invalid because she did not waiver her Miranda rights and had asked for an attorney, and additionally, that inevitable discovery would not apply to these facts.
CrR 3.5 and CrR 3.6 both require the trial court to enter written findings of fact and conclusions of law following a suppression hearing. Here, the court did not enter findings of fact and conclusions of law after the suppression hearing that took place at trial before jury selection was completed. The trial court's failure to comply is error, but may be harmless if the court's oral findings are sufficient for appellate review. State v. Miller, 92 Wn. App. 693, 703, 964 P.2d 1196 (1998). If the trial court enters findings of fact and conclusions of law after an appellant's brief is filed, we will reverse if the findings prejudice the defendant's appeal or appear tailored to meet the issues raised in the appellant's brief. State v. Thompson, 73 Wn. App. 122, 130, 867 P.2d 691 (1994).
The State remedied this error after Ms. Stuart's opening appellate brief was filed by filing findings of fact and conclusions of law. Ms. Stuart did not offer a reply brief asserting prejudice from the late filing or error in the findings. See State v. Moore, 70 Wn. App. 667, 855 P.2d 306 (1993). Further, the State declares it had no knowledge of the issues on appeal when it drafted the findings and conclusions. Thus, we find no prejudice. We review the factual findings for substantial evidence. State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001). We review the conclusions of law de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999).
Generally, police must obtain a warrant prior to searching a private residence. State v. Ferrier, 136 Wn.2d 103, 110, 960 P.2d 927 (1998). However, "[c]onsent to a search will act as a waiver of the constitutional right against unreasonable searches and seizures. The State has the burden of proving consent was freely and voluntarily made, and it must meet that burden with clear and positive evidence." State v. Rodriguez, 20 Wn. App. 876, 878, 582 P.2d 904 (1978). "The voluntariness of a consent to search is a question of fact to be determined by considering the `totality of the circumstances surrounding the alleged consent.'" Id. (quoting State v. Shoemaker, 85 Wn.2d 207, 212, 533 P.2d 123 (1975)).
"The prosecution may not use statements, whether exculpatory or inculpatory[,] stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege of self-incrimination." Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Further, "under Miranda, the police must cease questioning a suspect if that individual in any manner and at any time prior or during questioning indicates he or she wishes to invoke the right to remain silent." State v. Walker, 129 Wn. App. 258, 273, 118 P.3d 935 (2005). "[T]he admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his `right to cut off questioning' was `scrupulously honored.'" Michigan v. Mosley, 423 U.S. 96, 104, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975) (quoting Miranda, 384 U.S. at 474).
The State aptly argues that asking for consent to search under our facts does not constitute interrogation under Miranda. A response to q request to produce evidence can be testimonial and subject to Fifth Amendment protections. See State v. Wethered, 110 Wn.2d 466, 472, 755 P.2d 797 (1988) (holding, where a police officer's questioning or requests induce a suspect to hand over incriminating evidence, such nonverbal act may be testimonial in nature). But, merely consenting to a search, as distinguished from producing contraband pursuant to a police request, is not testimonial and thus, not subject to Fifth Amendment protection. Id. at 471. This is because "[g]ranting permission to search is consistent with innocence, whereas producing contraband from a hiding place is essentially an admission of guilt." Id. Thus, Ms. Stuart's consent to search was not subject to Miranda protections.
Further, the court found the gun was admissible under the inevitable discovery rule. "Under this rule, the prosecution must prove by a preponderance of the evidence that the evidence ultimately or inevitably would have been discovered using lawful procedures." State v. O'Neill, 148 Wn.2d 564, 591, 62 P.3d 489 (2003). Here, officers had made a protective sweep of the house and had seen where the gun was located; Ms. Stuart had been arrested at her home for the shooting; numerous witnesses had identified Ms. Stuart as the shooter; and Ms. Stuart had admitted shooting Mr. Davison. Thus, had Ms. Stuart refused to consent, officers had probable cause to obtain a warrant to search her house for the undisputed murder weapon. The police would have inevitably recovered the gun through predictable investigatory procedures.
Ms. Stuart incorrectly contends O'Neill overruled the inevitable discovery exception in Washington. The Court merely held they would not apply it in that case because a lawful arrest was not made prior to the search incident to that arrest. Id. at 592. It held that if the exception was applied under those circumstances, there would be no incentive for the State to validly arrest prior to a search incident to arrest. Id. In fact, the Court specifically declined to overrule the exception as a whole. See id. n. 11. Because Ms. Stuart was validly arrested prior to giving consent, the Court's concerns in O'Neill are inapplicable here.
Even if the court had erred in admitting the physical evidence, it would have been harmless error. "It is well established that constitutional errors . . . may be so insignificant as to be harmless." State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985). "A constitutional error is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable finder of fact would have reached the same result in the absence of the error." Wethered, 110 Wn.2d at 474-75. Ms. Stuart admitted buying the gun, taking shooting lessons, and shooting Mr. Davison. The contested issue at trial was Ms. Stuart's state of mind at the time of the shooting. Therefore, admission of the gun, if an error, was harmless error.
B. Evidence Sufficiency
The issue is whether sufficient evidence supports the second degree murder finding, considering Ms. Stuart's self-defense claim.
The test for evidence sufficiency is whether, after viewing the evidence and all reasonable inferences most favorably to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980); State v. Hampton, 143 Wn.2d 789, 792, 24 P.3d 1035 (2001). We defer to the trier of fact to weigh the evidence and judge the credibility of the witnesses. State v. Bryant, 89 Wn. App. 857, 869, 950 P.2d 1004 (1998) (citing State v. Hayes, 81 Wn. App. 425, 430, 914 P.2d 788 (1996)). Both direct and circumstantial evidence may sustain a guilty verdict. State v. Brooks, 45 Wn. App. 824, 826, 727 P.2d 988 (1986).
A conviction for second degree murder requires the jury to find that a defendant "[w]ith intent to cause the death of another person but without premeditation . . . causes the death of such person." RCW 9A.34.050(a). Since intent is an element of second degree murder, the State must provide it beyond a reasonable doubt. See State v. McCullum, 98 Wn.2d 484, 495, 656 P.2d 1064 (1983). "A person acts with intent or intentionally when he acts with the objective or purpose to accomplish a result which constitutes a crime." RCW 9A.08.010(1)(a).
Homicide is justifiable when committed "[i]n the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister . . . when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such a design being accomplished." RCW 9A.16.050(1). Accordingly, a person acting in self-defense cannot be acting intentionally, which "negates the element of `unlawfullness' contained within Washington's statutory definition of criminal intent." McCullum, 98 Wn.2d at 495. Thus, when a defendant asserts self-defense, the State bears the burden of proving its absence beyond a reasonable doubt. Id. at 496.
Self-defense is judged by a subjective standard. Id. at 488-89. The jury must "view the evidence from the defendant's point of view as conditions appeared to him or her at the time of the act." Id. (citing State v. Wanrow, 88 Wn.2d 221, 234-36, 559 P.2d 548 (1977)). Thus, the jury must view the claim of self-defense "from the defendant's perspective in light of all that she knew and experienced with the victim." State v. Allery, 101 Wn.2d 591, 594, 682 P.2d 312 (1984) (citing Wanrow, 88 Wn.2d at 235-36).
Ms. Stuart argues her experts diagnosed her with post-traumatic stress disorder and battered women's syndrome based on years of alleged rapes and abuse by Mr. Davison, and opined these disordered could have distorted Ms. Stuart's perception of threat posed by Mr. Davison's actions at the time of the shooting. However, Dr. Leslie Rawlings, the State's expert, testified Ms. Stuart was not suffering from post-traumatic stress disorder at the time of the shooting, as would justify Ms. Stuart's theory of having a distorted perception of the threat posed by Mr. Davison at the time of the shooting. In addition, while the jury failed to find Ms. Stuart guilty of premeditated murder, it was entitled to consider this evidence as negating her claim of self-defense.
Further, the State presented testimony that Ms. Stuart shot Mr. Davison six times at close range. Mr. Davison was unarmed. From this evidence, it would have been reasonable for the jury to find that Ms. Stuart's use of deadly force, even if necessary in her mind to protect her children from molestation or protect herself from somehow being killed, was not reasonable under the circumstances. Moreover, the State presented ample facts from which the jury could believe that molestation by Mr. Davison was neither probable nor imminent, as is required for a claim of self-defense.
We defer to the trier of fact to weigh the evidence and judge the credibility of the witnesses. Bryant, 89 Wn. App. at 869 (citing Hayes, 81 Wn. App. at 430). In sum, when viewed in a light most favorable to the State, these facts constitute sufficient evidence to negate Ms. Stuart's claim of self-defense.
C. Sentence Enhancement
The issue is whether the court erred in giving Ms. Stuart a five-year firearm enhancement, based solely on the jury's finding Ms. Stuart was armed with a deadly weapon at the time she committed the crime.
A jury must determine beyond a reasonable doubt the existence of aggravating factors used to increase a sentence above the presumptive maximum set by the legislature. Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 2536, 159 L. Ed. 2d 403 (2004) ("Other than the fact of a prior conviction, any fact that increased the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.") (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)). The Court defined "statutory maximum" as "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S. at 2537.
Ms. Stuart correctly contends the court's imposition of the five-year sentencing enhancement for a firearm violates her Sixth Amendment rights under Blakely, because this fact was not found by a jury beyond a reasonable doubt. Our decision is dictated by State v. Recuenco, 154 Wn.2d 156, 110 P.3d 188 (2005). There, the Court found a Sixth Amendment violation in an identical sentencing scenario, because the fact of being armed with a firearm was not found by a jury beyond a reasonable doubt. See id. at 163-64. Thus, the court erred in imposing the enhancement in this case based solely on the jury's finding that Ms. Stuart was armed with a deadly weapon.
While the State concedes this error, it argues the Recuenco Court wrongly decided this type of violation could never be harmless. We are bound to follow the mandates of our Supreme Court, and therefore, remand Ms. Stuart's case for resentencing based solely on the deadly weapon enhancement according to the special verdict. See State v. Hughes, 154 Wn.2d 118, 149-51, 110 P.3d 192 (2005).
This court's holding is consistent with our Supreme Court's recent decision in State v. Recuenco, 163 Wn.2d 428, 180 P.3d 1276 (2008).
D. Pro Se Additional Grounds
Ms. Stuart first contends the court violated her Sixth Amendment rights under Blakely by giving her an exceptional sentence based on domestic violence, a fact which was not decided by a jury. While the State requested the court to impose an exceptional sentence on that basis, the court sentenced Ms. Stuart to 180 months-within the standard range, and 60 months for the firearm enhancement.
Ms. Stuart confusingly contends her fair trial rights were harmed by "invoking the reasonableness factor in jury deliberation" and the "imminent peril jury instruction" because she asserted she suffered battered women's syndrome in her claim of imperfect self-defense. If Ms. Stuart is arguing the jury should have been further instructed on her self-defense claim, she has waived that objection by failing to propose such instruction at trial. See State v. Hickman, 135 Wn.2d 97, 104-05, 954 P.2d 900 (1998). If Ms. Stuart is arguing she was prejudiced by the jury instructions, she has waived review by not objecting below. See id. In any case, the jury heard evidence as to Ms. Stuart's mental state and was entitled to consider that as part of her claim of self-defense. We discern no error.
Affirmed in part; reversed in part and remanded for further sentencing proceedings consistent with this opinion.
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, J., and Thompson, J. Pro Tem., concur.