Opinion
Nos. 46703-4-I, c/w 48649-7-I.
Filed: February 19, 2002 UNPUBLISHED OPINION.
Appeal from Superior Court of Snohomish County, No. 99-1-01098-6, Hon. Ronald L. Castleberry, April 19, 2000, Judgment or order under review.
Counsel for Appellant(s), Richard A. Hansen, Allen Hansen Maybrown PS, 600 Univ. St Ste 3020, Seattle, WA 98154.
Counsel for Respondent(s), Seth A. Fine, Snohomish Co. Prosecutor's Office, Snohomish Co Pros Office, 3000 Rockefeller, Everett, WA 98201.
David F. Thiele, Snohomish Co Pros Att Ofc, 3000 Rockefeller Ave, Everett, WA 98201-4060.
Kristi Beard was convicted of first degree manslaughter. She argues that the trial court erred in permitting her statements to be used to impeach her because they were involuntary, that she received ineffective assistance of counsel, and that the trial court erred by denying her motion for an order of indigency. We reject her arguments and affirm.
FACTS
Kristi Beard met Alberto Hernandez when he approached her at Northgate Mall and asked for her phone number. She went out with him several times. On one occasion, she accompanied Hernandez to a trailer, where, along with his friends Rigoberto Chavez and Jose Alverez, they drank, danced, and played strip poker. Beard had sex with Chavez. Hernandez then entered the room, and according to Beard, raped her while Chavez lay next to her. Beard told Chavez that she wanted to kill Hernandez. She slept at the trailer and left in the morning.
The next day Hernandez called Beard, and she agreed to meet him. He drove to her house, and she got into his car, carrying a kitchen knife in her purse. She told Eriko Yoshida, her brother's girlfriend, that she had planned to stab Hernandez, but did not because he was wearing a thick coat. Beard told her friend Heidi Wahl that she wanted to purchase a knife with a sheath, so that she could carry it in her purse without the knife poking through. Wahl drove her to a store where she bought a knife in a sheath. Hernandez continued to call, and Beard agreed to meet him at a park. She brought her new knife. Beard testified that Hernandez tried to attack her, and that she stabbed him, discarded the knife, and ran home. She thought Hernandez was alive because she heard his car start as she ran. When Beard arrived home, she called Heidi Wahl and told her "I actually used the knife." Report of Proceedings (RP) (Mar. 21, 2000) at 1197-98.
The next day, Wahl told Beard that police had found Hernandez dead in his car. Beard then called Ed Gardner, with whom she had a close relationship. Gardner is a co-trustee of Beard's trust fund, which was established with proceeds from a lawsuit initiated after a car struck Beard when she was seven years old. The accident severely injured her brain, causing pervasive deficits in short-term memory, cognition, reasoning, and problem solving. Gardner urged Beard to go with him to the police, and she agreed. When they arrived at the police station, Beard was not a suspect in Hernandez's murder. However, after she told Officer Laura Tollefson that she was the only one present when Hernandez was killed, Tollefson terminated the conversation and told Beard to wait for arrival of the detectives assigned to the case. Beard then unequivocally asked for her attorney. Officer Tollefson unintentionally neglected to tell detectives Mark Conner and James Rodgers that Beard had asked for her attorney. Conner and Rodgers read Beard her Miranda rights and interviewed her. She described stabbing Hernandez and made no allegation that he tried to attack her or threaten her. She declined to give a videotaped statement, but agreed to retrieve the knife with the detectives. At this time, Gardner contacted her attorney, Gary Donion, and told him the detectives planned to have Beard retrieve the knife. Donion told Detective Conner he did not want Beard to do anything until he arrived. Donion did not ask to speak to Beard and she did not know about his phone call. The detectives ignored this request and Beard led them to the knife.
Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The State charged Beard with first degree murder. At the CrR 3.5 hearing, Donion argued, and the trial court agreed, that Beard's statements to detectives Conner and Rodgers were taken in violation of Miranda and Edwards. The court suppressed the statements in the State's case-in-chief, but found the statements were voluntary and therefore admissible for impeachment. Donion did not expressly argue Beard's statements were involuntary because her brain injury made her susceptible to police coercion.
Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (holding that when an accused unequivocally expresses his desire to deal with the police only through counsel, the interrogation must cease until an attorney is present, unless the accused himself initiates further communication, exchanges, or conversations with the police).
At trial, Beard's theory was self-defense. She testified Hernandez called her a "fucking bitch[,]" threatened, "I'll kill you[,]" and advanced toward her with a raised fist. RP (Mar. 21, 2000) at 1195-96. However, her brother testified that she admitted to him that Hernandez had not threatened her in the woods before the stabbing. The State impeached Beard with the fact that she left these alleged threats out of her statements to detectives. Defense expert Dr. Fred Wise testified that Beard's brain injury would make it difficult for her to formulate and carry out a plan to commit murder, and that she would likely react impulsively to fear.
The jury convicted Beard of first degree manslaughter with a deadly weapon. She filed a motion for an order of indigency for appeal. The court denied her motion, finding her trust fund, which paid her trial expenses, adequate to cover all her costs on appeal. Beard appealed. She also filed a personal restraint petition addressing several issues relating to her conviction, as well as the order denying her motion for indigency. We consolidated the petition with her appeal.
DISCUSSION
Testimonial Act
When police questioning induces a suspect to reveal the location of incriminating evidence, the act is testimonial in nature and should be suppressed if carried out in violation of Miranda. State v. Wethered, 110 Wn.2d 466, 471, 755 P.2d 797 (1988). Here, the trial court found that the detectives violated Miranda and Edwards by questioning Beard after she had requested an attorney, but did not address the admissibility of her act of taking the police to the knife. At trial, detective Connor testified that Beard led him to the knife. The failure to suppress Beard's act was error.
However, Beard impliedly waived the error because the issue was only briefly mentioned in her CrR 3.5 memorandum, was not pursued at the CrR 3.5 hearing, and she failed to object to the detective's testimony at trial. See State v. Fanger, 34 Wn. App. 635, 638, 663 P.2d 120 (1983). Moreover, because Beard's theory was self-defense, the negative inference that can be drawn from her act of leading police to the knife that the knife was hers or that she had used it resulted independently from other substantive evidence. The knife itself was incidental. Any error was therefore harmless.
Voluntariness
A confession is involuntary under the due process clause if, based on the totality of the circumstances, the defendant's will was overborne. State v. Burkins, 94 Wn. App. 677, 694, 973 P.2d 15 (1999). Beard claims the trial court erred in determining her statements were voluntary. Factors considered in the determination of voluntariness include the defendant's physical condition, age, mental abilities, and physical experience. Burkins, 94 Wn. App. at 694.
Here, several neuropsychological evaluations indicated Beard had pervasive deficits in short-term memory, cognition, reasoning, and problem solving, and as a result, she tended to follow the lead of others. However, police conduct is also a consideration when determining if the defendant's will was overborne, Burkins, 94 Wn. App. at 694, and the trial court determined the interview of Beard was "non-coercive in nature." Clerk's Papers at 18.
The court found that Beard was not handcuffed, the detectives wore civilian clothes during the interview, they took a "soft" approach to interviewing her, they did not bully her, and she expressly verified with the officers that she could answer some of their questions without giving up her right to refuse to answer others. These findings are supported by the record, as is the court's determination the statements were voluntary. Beard's statements were not coerced simply because she was "misled by the friendliness of the interrogating officers." See State v. Blanchey, 75 Wn.2d 926, 935, 454 P.2d 841 (1969). Beard also claims the detectives committed "egregious and blatant" Miranda violations that amounted to coercion because they questioned her despite "repeated requests" to see a lawyer. Appellant's Opening Brief at 39. But the trial court rejected this version of events: "The detectives specifically denied defendant made any such requests and the court finds them credible on this point." Clerk's Papers at 17. We do not review a trial court's credibility determinations. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). In short, the record supports the trial court's finding that Beard's will was not overborne and her statements were voluntary. Ineffective Assistance of Counsel In her personal restraint petition, Beard claims defense counsel was ineffective at the CrR 3.5 hearing for failing to argue that her brain injury made her susceptible to police suggestion, and that therefore, her statements were involuntary. Generally, to prevail on a personal restraint petition, a person must establish either (1) actual and substantial prejudice arising from constitutional error, or (2) nonconstitutional error that inherently results in a complete miscarriage of justice. In re Garcia, 106 Wn. App. 625, 629, 24 P.3d 1091 (2001). Here, Beard alleges actual and substantial prejudice arising from defense counsel's deficient performance. To establish ineffective assistance of counsel, Beard must show (1) counsel's failure to make a voluntariness argument at the CrR 3.5 hearing was below an objective standard of reasonableness, and (2) if counsel had made the argument, there is a reasonable probability the trial court would have found her statements involuntary. Beard has failed to make the requisite showing. As stated above, police conduct is a consideration when determining if the defendant's will was overborne, Burkins, 94 Wn. App. at 694, and nothing in Beard's petition demonstrates coercion. She claims that "[w]hen she expressed concern about having her attorney present, the detectives cajoled and coerced her with additional questions[.]" Brief in Support of Personal Restraint Petition at 27. But the trial court did not find this version of events credible. Additionally, Beard cites no authority for her contention that it is coercion for the police to administer Miranda warnings orally rather than by using a written waiver form.
Moreover, her petition acknowledges the police did not use coercive conduct in fact, the central focus of the petition is that Beard was `extremely vulnerable to the kind of `soft approach' employed by Detectives Connor and Rogers.' Statement of Dr. Fred Wise at 9. The additional evidence Beard alleges should have been submitted at the CrR 3.5 hearing differs only in quantity, not quality. The chief failure alleged in the petition was that counsel did not specifically articulate that Beard's brain injury made her statements involuntary, and did not offer evidence on that subject from experts. However, the admissible evidence set forth in her petition would not have supported such a finding again, Beard's statements were not coerced simply because she was "misled by the friendliness of the interrogating officers." See Blanchey, 75 Wn.2d at 935. Counsel was not ineffective at the CrR 3.5 hearing.
Beard submits the declarations of Dr. Wise, Dr. Christian Harris, and her adult education teacher, Marilyn Stark in support of her petition. The declarations state that as a result of her cognitive defects, Beard is easily led, and that under the circumstances, her statements were involuntary. The latter opinion is a legal opinion, however, and we grant the State's motion to strike it. See Physicians Ins. Exch. v. Fisons Corp., 122 Wn.2d 299, 344, 858 P.2d 1054 (1993); Hiskey v. Seattle, 44 Wn. App. 110, 113, 720 P.2d 867 (1986) (an expert opinion of law, or mixed fact and law, is inadmissible to the extent that it contains legal conclusions).
Order of Indigency
Beard argues the trial court erred by denying her motion for an order of indigency. Review of an order denying a motion for indigency must be sought by a motion for discretionary review. RAP 15.2(g). Beard did not seek discretionary review; we will treat Beard's notice of appeal as a motion for discretionary review and address the trial court's denial of public counsel under the appropriate standard. RAP 5.1(c).
RAP 2.3(b) provides that discretionary review will be accepted only:
(1) If the superior court has committed an obvious error which would render further proceedings useless; or
(2) If the superior court has committed probable error and the decision of the superior court substantially alters the status quo or substantially limits the freedom of a party to act; or
(3) If the superior court has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by an inferior court or administrative agency, as to call for review by the appellate court.
RAP 15.2(b)(1) governs situations where the trial court must deny the motion for an order of indigency:
Denial Generally. The trial court shall deny the motion if a party has adequate means to pay all of the expenses of review. The order denying the motion for an order of indigency shall contain findings designating the funds or source of funds available to the party to pay all of the expenses of review.
Here, the trial court determined Beard had adequate means to pay all of the expenses of review and entered the following findings:
1. The defendant is the beneficiary of a trust fund in an amount exceeding $248,000.
2. The purpose of the trust fund is to provide to the defendant various services, including legal services, in excess or [sic] those that she would otherwise receive as a result of her disabilities. In fact monies were distributed from the trust for payment of trial attorney's fee and various experts and investigators. Attorney Hansen has indicated that he will waive his fees for the appeal.
3. Although expenditures from the trust are discretionary, it would be an abuse of discretion for the trustees to withhold the money necessary for the defendant's appeal. Accordingly, the money in the trust is available to the defendant to pay all the expenses of her appeal.
Clerk's Papers at 595-96.
The trial court accepted and relied upon counsel's waiver of fees when entering the order denying indigency. Thus, at issue here are the court's determinations that the trust fund is adequate to cover all the expenses of Beard's appeal except attorney fees, and that it would be an abuse of discretion for the trustees to withhold the necessary funds. As the trial court found, the trust funds exceed $248,000. It is undisputed that Beard's appellate expenses, excluding attorney fees, are about $6,000. The fund is therefore obviously adequate. Beard's argument is that the fund's purpose of paying only for services she would not otherwise receive because of her disabilities is frustrated by the court's order, because but for the fund, she is clearly indigent as a result of her disabilities and would qualify for public defense. However, given that one of the purposes of the trust is to provide Beard with legal services, and that the trust paid for her trial expenses, it is difficult to discern error in the court's finding that the trustees could not reasonably withhold the money necessary for Beard's appeal.
The court's determination is not obvious or probable error, does not depart from the accepted course of judicial proceedings, and therefore discretionary review is not warranted.
We affirm Beard's conviction, deny her personal restraint petition, and deny discretionary review of the order denying her motion for an order of indigency.
In light of our disposition, we do not reach the merits of the State's cross appeal.
BAKER and ELLINGTON, concur.