Opinion
No. 51612-4-I.
Filed: March 22, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 01-1-02098-1. Judgment or order under review. Date filed: 12/27/2002. Judge signing: Hon. Larry E McKeeman.
Counsel for Appellant(s), Thomas Michael Kummerow, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent/Cross-Appellant, Thomas Marshal Curtis, Snohomish County Pros Ofc, 3000 Rockefeller Ave # 504, Everett, WA 98201-4060.
A defendant is in custody for purposes of obtaining Miranda warnings when his or her freedom is curtailed to a degree associated with a formal arrest. Here, there is evidence to support the trial court's holding that a reasonable person in Woods' situation would believe he was free to terminate the police interrogation and leave, at least until the time he made an equivocal request for an attorney or at the moment of his arrest. Affirmed.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
FACTS
At approximately 2 a.m. on September 28, 2001, Robert Dale Woods called 911 and told the operator that, when he returned to the apartment he shared with Jolene Derosier, he found her bound, gagged and dead. He waited at the scene for emergency personnel to arrive. One of the responding police officers sat Woods in the rear seat of a police vehicle, without handcuffing him, leaving the door open awaiting the arrival of the investigating homicide detectives.
Once those detectives arrived, considering the hour, the outside temperature, and for the officers' convenience, they told Woods they would like to interview him at the police station. The detectives told Woods they wanted to interview him because he was the person who reported the crime, he lived at the apartment where the victim was found, and he was their best and key witness to the investigation. Woods willingly agreed to go with the detectives. He was transported by a police officer to the police station. There, Woods was placed in an open interview room on the third floor. Although not specifically told he could leave at any time, the detectives did not consider him to be under arrest, did not take any personal property from him, did not search or handcuff him and left him alone in the interview room. There were two doors in and out of this interview room. The detectives left him for approximately 5 minutes before returning to the room to conduct the interview.
The interview started with the detectives explaining to Woods that he was not under arrest and again told him he was the best witness to help out. Woods said he understood and that he would help in any way he could. While Woods was not under arrest, the detectives were somewhat suspicious of Woods' role in the crime due to some fresh scratches on his face and neck, and because it had been reported to them that Woods called his brother before he called 911.
During the early stages of the interview, Woods' cell phone rang. The officers let Woods know they did not want him to impart too much information about his whereabouts or what was going on. The caller turned out to be his girlfriend, the older sister of the victim. Woods explained he was busy and the call ended. The interview proceeded with Woods giving the detectives background information about himself and the victim. After approximately 2 hours, they took a break. Woods and one of the detectives went to the rest room to use the facilities. Woods returned to the interview room and the detective returned to his cubicle in a different area of the floor of the police station. During this time, the other detective phoned an officer at the crime scene and asked questions to assist in the interview.
About 5 minutes after they took the break, that detective returned to the interview room and asked Woods for consent to obtain his cell phone records so they could track down the calls he made earlier. Woods was cooperative. The detective left Woods alone in the interview room while he went to arrange for the phone records and confer with the other detective about the interview and their approach to Woods.
About 10 minutes later the detectives returned to the interview room and confronted Woods, indicating that some of his answers were inconsistent and that the detectives were not sure that Woods was being truthful, even to the point of indicating that he was possibly involved in the death of the victim. Woods denied any accusation that he murdered Jolene. He remained cooperative with the officers. The detective who accused Woods was paged and left the room while the other detective continued a dialogue with Woods. The other detective returned to the room. At this point Woods began to change his story and made incriminating statements about the events of the evening and early morning.
After Woods began to talk, the detectives decided they should get a taped statement from him, so they asked if he would be willing to give such a statement. Woods said he would. Woods said he didn't know if he needed an attorney or not at this time. But before the taping occurred, the detectives took another break. Woods and one of the detectives again used the restroom. They returned to the interview room, and Woods was again left alone in the room with the door open while the detectives were back in the office area. At that point, the detectives determined that even though they had not arrested Woods, they would intervene if he tried to leave. Back in the interview room, the detectives read through with Woods the standard form used when obtaining a tape-recorded statement from a witness. Prior to taping the statement Woods was advised of his Miranda rights. The form included the advisement of constitutional rights as well as a waiver portion. When the waiver portion was read, Woods again made an equivocal request for an attorney. However, after more conversation with the detectives he proceeded to make additional statements to the detectives and also continued with the taped statement. At the conclusion of the taping, Woods was placed under arrest.
Woods was originally charged with first degree murder. Before trial, Woods moved to suppress his statements, arguing the detectives violated his Miranda rights by failing to advise him of those rights even though he was in custody while at the police station. The trial court held a CrR 3.5 hearing. Woods stipulated that he was not in custody at the crime scene. He testified that he had been arrested on prior occasions and that because he was treated differently in this case he knew he was not under arrest until he was read his rights. But he also testified that he did not think he could refuse to answer the questions or leave.
Following the hearing, the trial court granted the motion in part and denied it in part. The court held that Woods was not in custody for Miranda purposes during the police interviews until such time as he asked about the possibility of getting counsel. Therefore, the inculpatory statements Woods made up to that point were ruled to be admissible. However, the court granted Woods' motion in part, finding the detectives engaged in tactics tending to coerce Woods to waive his right to counsel, even though it was equivocal. Thus, the court refused to admit any statements Woods made after the equivocal request, including the taped statement. The court then determined that the taped statement was voluntarily made, so it could be used for impeachment purposes. Woods agreed to a stipulated facts trial on an amended information charging him with second degree murder. The trial court found him guilty as charged.
Woods appeals his conviction, arguing that the trial court erred in determining he was not in custody during the police interviews at the police station.
DISCUSSION
The issue in this case is whether the trial court erred in admitting pre-arrest statements made by Woods while being interviewed at the police station. Woods argues that Miranda warnings should have been given before questioning began. Whether an officer should give Miranda warnings to a defendant depends on whether the examination or questioning constituted (1) a custodial (2) interrogation (3) by a state agent. Here, it is the custodial aspect that is at issue.
State v. Post, 118 Wn.2d 596, 605, 826 P.2d 172, 837 P.2d 599 (1992).
A defendant is in custody for purposes of Miranda warnings when his or her freedom is curtailed to a "degree associated with a formal arrest." Whether a defendant is in custody is a mixed question of fact and law. The factual inquiry looks to the circumstances surrounding the interrogation, while the legal inquiry, given the facts, determine whether a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave. Therefore, the trial court applies an objective test to resolve whether there was a formal arrest or restraint on freedom of movement to the degree associated with a formal arrest.
California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983), citing Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977); see also State v. Harris, 106 Wn.2d 784, 789-90, 725 P.2d 975 (1986).
State v. Solomon, 114 Wn. App. 781, 787, 60 P.3d 1215 (2002), review denied 149 Wn.2d 1025 (2003), citing Thompson v. Keohane, 516 U.S. 99, 112-13, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995) (once scene is set and the players' lines and actions are reconstructed, the court applies an objective test to resolve the inquiry of whether there was a formal arrest or restraint on freedom of movement associated with formal arrest).
In a CrR 3.5 proceeding, the findings of fact address the factual inquiry. The substantial evidence standard of review applies to the challenged findings of the trial court. Unchallenged findings are verities on appeal. The appellate court determines de novo whether the trial court's conclusions follow from its findings of fact.
State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1977).
Soloman, 114 Wn. App. at 789, citing State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1997).
There is no evidence here to suggest that a reasonable person in Woods' situation would have felt that he was not free to terminate the police interrogation and leave, at least until he discussed the possibility of needing an attorney.
Citing State v. D.R., Woods asserts that whether a person is told he or she is free to leave is a significant factor in determining whether or not the person is in custody. But D.R. was a minor who was interrogated by a uniformed officer in the office of the school principal. That case holds that children get special consideration in determining if they are in custody. Here, Woods was an adult who had been arrested before.
State v. D.R., 84 Wn. App. 832, 838, 930 P.2d 350 (1997).
Woods also claims that he was not free to leave because the police were suspicious of him. "[M]ere suspicion before the facts are reasonably developed is not enough to turn routine investigatorial questioning of a witness into a custodial interrogation."
State v. Green, 91 Wn.2d 431, 436, 588 P.2d 1370 (1979), citing State v. Hilliard, 89 Wn.2d 430, 573 P.2d 22 (1977).
Woods asserts that he was in custody because the interview lasted for over four hours and was progressively more aggressive, deceptive and accusatory. However, no bright line has been established as to how much time is involved before a consensual interview becomes an in-custody interrogation. It is only one factor to consider.
Here, using the Thompson approach, the trial court set the scene and reconstructed the players' lines and actions in its oral decision and in its findings of fact. It then applied an objective test to resolve the inquiry of whether there was a formal arrest or restraint on freedom of movement associated with a formal arrest. As stipulated by Woods, the trial court found he was never in custody at the scene. The court found that once at the police station, the door to the interview room was left open and exits were in sight; that officers left Woods alone a number of times while they went elsewhere on the floor; that there was no guard on the door; that Woods had his cell phone with him; that Woods was not physically restrained at any time; that Woods was told he was not under arrest; and that Woods did not believe he was under arrest but that he would be released once the interview was over.
Thompson, 516 U.S. at 112-13.
Contrary to Woods' argument, these findings are amply supported by substantial evidence in the record. On review, given the totality of the circumstances, we determine the findings in turn support the conclusion that Woods was not "in custody" necessitating the giving of Miranda rights until such time as he made an equivocal request for an attorney.
The decision of the trial court is affirmed.
GROSSE and BECKER., JJ., concur