Opinion
No. 61079-1-I.
January 26, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-8-03568-2, Philip G. Hubbard, Jr., J., entered December 17, 2007.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION
T.N. appeals his juvenile conviction for robbery in the second degree. T.N. contends that the juvenile court erred in admitting a statement he made to the police in response to a question about the crime before giving Miranda warnings because he was in custody when he made the statement. T.N. also asserts that the court erred in admitting post-Miranda statements he made to the police because he did not knowingly, voluntarily, and intelligently waive his constitutional rights. Because T.N.'s post-Miranda statements were voluntary and not coerced, we affirm.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
FACTS
On Friday, September 21, 2007, 14-year-old M.P. got off the school bus at his stop on his way home from Kentridge High School in Kent. M.P. was listening to an MP3 player. A tall male wearing a grey bandana over his face grabbed M.P. and spun him around. The person in the bandana punched M.P. in the face, grabbed the MP3 player out of M.P.'s pocket, and ran away.
On September 24, Sean Kelly, a security officer at Kentridge High School, met with M.P. at school to talk about the incident. M.P. could not identify the assailant, but he told Kelly that he thought the person who took his MP3 player was a tall Asian student who was in the seat in front of him on the bus. Kelly showed M.P. approximately 1900 photos of students. M.P. did not identify his assailant from the photos. T.N. was not in any of the photos.
M.P. saw T.N. at school later that day and identified T.N. to his mother as the person who punched him. M.P.'s mother told Kelly that M.P. had identified T.N. Another high school student, J.G., also identified T.N. Kelly watched the video recording from the bus and observed that T.N. was on the same bus as M.P., was sitting in front of M.P., and they both left the bus at the same stop.
On September 25, Officer Buck of the Kent Police Department met with M.P. at school. Officer Buck and Officer Kovitch, a security officer from the Kent School District, went to T.N.'s house to contact him about the robbery and to arrest him on an outstanding warrant for an unrelated matter. When the police arrived at T.N.'s house, T.N.'s parents invited them in and Officer Buck informed T.N.'s parents that he had a warrant for T.N.'s arrest.
When T.N. came downstairs, Officer Buck told T.N. that he had a warrant for his arrest and asked T.N. what had happened on Friday. T.N. responded, "I took a MP3 player from some kid." Officer Buck told T.N.'s parents that T.N. punched the student and forcibly took his MP3 player. Officer Buck then arrested T.N. and advised him of his Miranda rights. Officer Buck specifically asked T.N. whether he understood the rights and T.N. said he did. T.N. did not express any confusion about his rights.
While driving T.N. to the precinct, Officer Buck again asked T.N. about the robbery. T.N. told the officers that he had taken the MP3 player because he thought it was an iPod and he "needed an iPod." T.N. said that when he realized the MP3 player was not an iPod, he gave it away. T.N. told Officer Buck that he wore the bandana over his face so that he would not be recognized. T.N. said that he wore the grey bandana because he was a member of the "Tiny Rascals" gang.
The State charged T.N. with robbery in the second degree in juvenile court. Officer Buck was the only witness who testified at the CrR 3.5 hearing. The court ruled that the statement T.N. made to Officer Buck before the Miranda warnings was admissible because it was voluntary and because T.N. was not in custody when he told the police he had taken the MP3 player. The court also ruled that T.N.'s post-Miranda statements to the police in the patrol car were admissible because T.N. knowingly, voluntarily, and intelligently waived his rights and T.N.'s statements before the Miranda warnings were not coerced.
At the adjudication, Kelly testified about his conversations with M.P. and M.P.'s mother. The court admitted the video of the school bus and Kelly testified that M.P., T.N., and J.G. were all on the bus, M.P. was listening to his MP3 player, and all three students exited the bus at the same stop. M.P. testified about the assault. M.P. said that he recognized T.N.'s face at the time and knew T.N. had been sitting in front of him on the bus, but did not know T.N.'s name. M.P. testified that he recognized T.N. when he saw him after school and pointed him out to his mother. J.G. identified T.N. and testified that after he got off the bus, he saw T.N. make a hitting movement. J.G. then saw M.P. fall to the ground and T.N. run away holding something in his hand. J.G. said that he was sure it was T.N. who punched M.P. T.N. did not testify and the defense did not call any witnesses.
The court found T.N. guilty of robbery in the second degree. T.N. appeals.
ANALYSIS
T.N. asserts that his responses to the officers' post-Miranda questions were inadmissible because T.N. did not knowingly, voluntarily, and intelligently waive his Miranda rights. If T.N.'s post-Miranda statements to the police were voluntary and free from coercion, we need not address whether his pre-Miranda statement should have been suppressed.
In determining whether a juvenile has voluntarily waived Miranda rights, we consider the totality of the circumstances. State v. Allen, 63 Wn. App. 623, 626, 821 P.2d 533 (1991). To be admissible, a confession must be voluntary and the test for voluntariness is whether the defendant made the free and unconstrained choice to make the confession. State v. Thompson, 73 Wn. App. 122, 131, 867 P.2d 691 (1994). Factors that a court considers in assessing the totality of the circumstances include the defendant's physical condition, age, mental abilities, experience, and the conduct of the police. State v. Aten, 130 Wn.2d 640, 664, 927 P.2d 210 (1996).
The State bears the burden of proving voluntariness by a preponderance of the evidence. State v. Braun, 82 Wn.2d 157, 162, 509 P.2d 742 (1973). "If there is substantial evidence in the record from which the trial court could have found by a preponderance of the evidence that the confession was voluntary, we will not disturb the trial court's determination of voluntariness on appeal." State v. L.U., 137 Wn. App. 410, 414, 153 P.3d 894 (2007), review granted, 162 Wn.2d 1031, aff'd, 196 P.3d 645 (2008) (quoting, State v. Burkins, 94 Wn. App. 677, 694, 973 P.2d 15 (1999)). Because T.N. does not challenge the court's findings of fact, those findings are verities on appeal. Aten, 130 Wn.2d at 668.
The United States Supreme Court decision Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L. Ed. 2d 222 (1985), controls the analysis in this case. In Elstad, police officers went to Elstad's home with a warrant for his arrest and questioned Elstad without giving him Miranda warnings. Elstad, 470 U.S. at 300-01. Elstad confessed to being involved in the robbery. The police did not give Elstad Miranda warnings until after escorting him to the police station, where Elstad voluntarily waived his rights and signed a statement confessing to the crime. Elstad, 470 U.S. at 301-02. The United States Supreme Court held that Elstad's post-Miranda confession was admissible, stating, "a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings." Elstad, 470 U.S. at 318.
T.N.'s reliance on Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L. Ed. 2d 643 (2004), to argue that the Supreme Court has reconsidered its holding in Elstad is unpersuasive. In Seibert, the Court held that a confession officers obtained by following a police procedure of deliberately withholding Miranda warnings after arrest was inadmissible. Seibert, 542 U.S. at 604-05.
Here, Officer Buck asked T.N. one question before T.N. confessed he stole another student's MP3 player. Officer Buck then immediately read T.N. his Miranda warnings. It is an undisputed finding of fact that T.N. "said he understood his rights and agreed to speak with the Officer. He told Officer Buck that he took the MP3 player because he thought it was an IPOD and that he robbed the victim because he said he needed an IPOD." Nothing in the record indicates that T.N. did not understand his rights or that his waiver was involuntary. As in Elstad, Officer Buck never used coercive techniques to obtain a confession. Unlike in Seibert, there is no evidence that Officer Buck deliberately withheld the Miranda warnings. Officer Buck only asked one question before T.N. confessed and then did not engage in any further questioning until after T.N. had waived his Miranda rights. We conclude there is substantial evidence in the record from which the trial court could have found by a preponderance of the evidence that T.N.'s post-Miranda statements were voluntary and admissible.
T.N. relies on State v. Lorenz, 152 Wn.2d 22, 37, 93 P.3d 133 (2004), to argue that the court erred in admitting his pre-Miranda statement to the police because a reasonable person in T.N.'s position would believe he "was in police custody to a degree associated with formal arrest." Because we have held that T.N.'s post-Miranda statements were voluntary and admissible, we need not reach the question of whether T.N. was in custody when he initially confessed.
We also conclude that even if the court erred in admitting T.N.'s statements to the police, the error is harmless beyond a reasonable doubt. Under the harmless error test, "we look only at the untainted evidence to determine if the untainted evidence alone is so overwhelming that it necessarily leads to a finding of guilt." State v. Ng, 110 Wn.2d 32, 38, 750 P.2d 632 (1988).
The untainted evidence of guilt was strong. Kelly testified that M.P. told Kelly that the assailant was a tall Asian student who sat in the seat in front of him on the bus. Kelly showed M.P. approximately 1900 photos of students in an attempt to identify the assailant. M.P. did not identify anyone in the photos. Because T.N. did not have a school photo, he was not included in the photos shown to M.P. Later that day, M.P. identified T.N. as the person who attacked him and stole his MP3 player. J.G. independently identified T.N. as the student who took M.P.'s MP3 player. Kelly verified that the student riding in the seat in front of M.P. on the bus was T.N. The video from the bus showed that M.P., T.N., and J.G. all rode the same bus and left the bus at the same stop. This evidence alone is so overwhelming that it necessarily leads to a finding of guilt.
We affirm.