Opinion
No. 61812-1-I.
September 14, 2009.
Appeal from the Superior Court, Snohomish County, No. 07-1-01793-8, Gerald L. Knight, J., entered May 30, 2008.
Affirmed by unpublished opinion per Agid, J., concurred in by Schindler, C.J., and Appelwick, J.
After arresting Wendell Armstead, Jr., the police made a video and audio recording of his custodial interview. Because the recording procedures complied strictly with RCW 9.73.090, the trial court properly denied Armstead's motion to suppress and admitted his recorded statement at trial. We also conclude that the "to convict" instruction included all elements of the charged offense and that the remaining instructions correctly informed the jury of the applicable law. Accordingly, we affirm Armstead's conviction for attempted first degree murder.
FACTS
The State charged Armstead with one count of attempted first degree murder while armed with a deadly weapon. The State also alleged that Armstead committed the offense while on community placement.
At trial, Richard McCarther testified that he has known Armstead and Armstead's family for many years. McCarther acknowledged that he had occasionally loaned Armstead his car in exchange for cocaine.
In late May 2007, Armstead drove McCarther to Evergreen Hospital in Kirkland, where McCarther was admitted for six days. McCarther let Armstead use his car while he was in the hospital with the understanding that Armstead would pick him up when he was discharged. Upon his release on May 25, 2007, McCarther was unable to contact Armstead.
On the following day, McCarther eventually located Armstead, who was sitting in the driver's seat of McCarther's car. McCarther got in on the passenger's side and rode with Armstead for most of the day while Armstead ran errands.
At about 11:00 p.m., Armstead picked up his girl friend, Crystal Young, from work. At this point, Armstead moved to the back seat, and Young took over the driving. Armstead then directed Young to drive to a location where "some dude" was going to pay Armstead a hundred dollars "to cook some dope up."
Young stopped the car in Edmonds and parked at the side of a road in a dark area, while Armstead waited for additional information about the drug deal. Both Young and McCarther fell asleep. McCarther woke up when he felt Armstead on top of him trying to cut his throat. After the two men struggled, McCarther was able to get out of the car and run away. As he was running, McCarther heard gunshots and one bullet hit him in the leg. When McCarther looked back, he saw Armstead "messing with the gun," which had apparently jammed. McCarther suffered stab wounds and a gunshot wound.
Young testified that when she woke up in the car, Armstead and McCarther appeared to be fighting. Armstead ordered Young to get out of the car and she complied. A short time later, Young saw McCarther get out of the passenger side and run away, with Armstead in pursuit. Young heard several gunshots, and when Armstead returned, he told her to get back in the car and drive him away.
Police arrested Armstead at a car wash the following day, as Armstead and two other men were scrubbing the inside of McCarther's car. Seattle police turned Armstead over to Edmonds Police, who brought Armstead to Edmonds for an interview.
Before interviewing Armstead, Detective Richardson turned on video recording equipment, which recorded both video and audio tracks to a DVD. Richardson then informed Armstead that he was going to record the conversation and turned on an audio tape recorder, which also recorded the interview. During the interview, Armstead steadfastly maintained that he was in a Seattle nightclub at the time of the assault. He claimed he had been renting McCarther's car for about two weeks in exchange for cash and cocaine.
Armstead moved to suppress the recorded statement, contending that it failed to comply with Washington's privacy act, chapter 9.73 RCW. After reviewing both the DVD recording and the audio recording, the trial court concluded that the recording complied strictly with the statutory requirements and admitted the recorded statement.
The jury found Armstead guilty as charged of attempted first degree murder and returned a special verdict finding that he was armed with a deadly weapon. The court found that Armstead was on community placement at the time of the offense and imposed a standard range term of 324 months.
DECISION
Armstead contends the trial court erred in admitting his recorded statement because the recording did not establish that the police informed him they were recording the interview. RCW 9.73.090, part of Washington's Privacy Act, authorizes the police to record custodial statements under certain specified circumstances. Video or audio recordings of custodial interrogations are admissible if, among other requirements, the "arrested person [is] informed that such recording is being made and the statement so informing him [is] included in the recording." The recording must generally "`conform strictly'" to the statutory requirements so as to "ensure that waiver by consent authorized by RCW 9.73.030 is capable of proof by the recording itself thereby avoiding a `swearing contest'."
RCW 9.73.090(1)(b)(i); see also State v. Rupe, 101 Wn.2d 664, 680, 683 P.2d 571 (1984). The recording must also establish the starting and ending times and that the arrestee has been fully advised on the recording of his or her constitutional rights. RCW 9.73.090(1)(b)(ii), (iii). Because Armstead does not challenge these requirements on appeal, we do not discuss them further.
State v. Cunningham, 93 Wn.2d 823, 829, 613 P.2d 1139 (1980).
Armstead correctly notes that the audio recording admitted at trial did not include a notification that the interrogation was being recorded. But in addition to the audio recording, the police simultaneously made a video recording of the interview on DVD, which the trial court considered when ruling on Armstead's motion to suppress. As the trial court found, the DVD recording "clearly showed the defendant had been advised that he was being recorded." Because the DVD and audio recordings were made essentially simultaneously and the audio recording began just seconds after the notification was recorded on the DVD recording, the trial court properly considered both recordings together for purposes of determining compliance with RCW 9.73.090.
See Rupe, 101 Wn.2d at 685 (because only one minute elapsed between two statements, the two interrogations were a single transaction for purposes of evaluating compliance with RCW 9.73.090).
Considered together, the simultaneous audio and DVD recordings conformed strictly to the requirements of RCW 9.73.090(1)(b). The trial court did not err in denying Armstead's motion to suppress.
Moreover, any error in the admission of the recorded statement was harmless. Because the admission of evidence in violation of RCW 9.73.090 is a statutory, and not a constitutional, violation, an error "is not prejudicial unless the erroneous admission of the evidence materially affected the outcome of the trial." Armstead's recorded statement was not directly inculpatory. Rather, he consistently maintained that he was in a Seattle nightclub at the time of the offense, a claim that formed the basis for his defense. The State's remaining evidence was strong, including the testimony of the victim and an eyewitness. Under the circumstances, there was no reasonable likelihood that the recording had any effect on the outcome of the trial.
State v. Courtney, 137 Wn. App. 376, 383, 153 P.3d 238 (2007), review denied, 163 Wn.2d 1010 (2008).
Armstead next contends that his conviction must be reversed because the "to convict" instruction for attempted first degree murder failed to include all essential elements of the offense. He argues that in order to be constitutionally sufficient, the "to convict" instruction must include the element of premeditation.
Because it serves as a "`yardstick by which the jury measures the evidence to determine guilt or innocence,'" the "to convict" instruction must generally contain all elements of the charged crime. The jury is not required to search other instructions for elements necessary for conviction. We review the adequacy of a "to convict" instruction de novo.
State v. DeRyke, 149 Wn.2d 906, 910, 73 P.3d 1000 (2003) (internal quotation marks omitted) (quoting State v. Smith, 131 Wn.2d 258, 263, 930 P.2d 917 (1997); see also State v. Mills, 154 Wn.2d 1, 6, 109 P.3d 415 (2005).
State v. Oster, 147 Wn.2d 141, 147, 52 P.3d 26 (2002).
Mills, 154 Wn.2d at 7.
"An attempt crime contains two elements: intent to commit a specific crime and taking a substantial step toward the commission of that crime." The "to convict" instruction in this case informed the jury that in order to convict Armstead of attempted first degree murder, the State was required to prove that he committed an act that was a "substantial step" toward the commission of first degree murder and that the act was done with the intent to commit first degree murder. Additional instructions accurately set forth the elements of first degree murder, including premeditation, and defined "[p]remeditation" and "substantial step."
DeRyke, 149 Wn.2d at 910.
The court's instructions followed WPIC 100.02, which recommends a "to convict" instruction setting forth the essential elements of the attempted crime and a separate instruction delineating the elements of the substantive crime. Our Supreme Court approved this approach in State v. DeRyke, rejecting the defendant's claim that the "to convict" instruction for attempted first degree rape was deficient because it did not include all of the elements of first degree rape. Recently, we held that a "to convict" instruction identical to Armstead's correctly set forth the elements of attempted first degree murder and did not relieve the State of its burden to prove all elements of the charged crime. The "to convict" instruction here correctly set forth all essential elements of attempted first degree murder.
See 11A Washington Practice: Washington Pattern Jury Instructions: Criminal 100.02, note on use at 386 (3d ed. 2008) (WPIC).
149 Wn.2d 906, 911, 73 P.3d 1000 (2003).
State v. Reed, 150 Wn. App. 761, 208 P.3d 1274 (2009).
Armstead has filed a statement of additional grounds for review. Citing State v. Dennison, he first contends that the trial court erred in instructing the jury "on a lesser included offense of second degree murder." But Dennison held that second degree murder is not a lesser included offense of first degree felony murder. Because the State charged Armstead with attempted first degree intentional murder, Dennison has no application here. Armstead has not shown that the trial court erred in instructing the jury on the lesser degree offense of attempted second degree murder.
RAP 10.10.
115 Wn.2d 609, 801 P.2d 193 (1990).
Id. at 627.
See State v. Johnston, 100 Wn. App. 126, 133-34, 996 P.2d 629 (noting attempted second degree murder is a lesser degree offense of attempted first degree murder), review denied, 141 Wn.2d 1030 (2000).
Armstead next challenges instruction 1, the general introductory instruction based on WPIC 1.02, because it refers to jurors as "officers of this court." Armstead appears to contend that the instruction misstates the law because jurors are defined as "public servant[s]" in WPIC 2.22 and RCW 9A.04.110(23). But the definition of "public servant" is relevant only if there is an issue of fact in the charged offense, and Armstead's offense did not involve the definition of public servant. The reference to "officers of this court" in instruction 1 merely emphasized the jury's obligation to act impartially and render a decision based solely "on the facts proved to you and on the law given to you." Armstead has not demonstrated any error in the court's instruction or indicated how he was prejudiced by the alleged misstatement.
See 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 2.22, note on use at 69 (3d ed. 2008).
Affirmed.
WE CONCUR: