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In State v. Graham, noted at 132 Wn. App. 1053, 2006 WL 1237275, 2006 Wash. App. LEXIS 909, and State v. Ruth, noted at 134 Wn. App. 1018, 2006 WL 2126311, 2006 Wash. App. LEXIS 1623, the Court of Appeals upheld five-year firearm enhancements based on harmless error.
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No. 54975-8-I.
May 8, 2006.
Appeal from a judgment of the Superior Court for Snohomish County, No. 04-1-00138-7, Ellen J. Fair, J., entered August 31, 2004.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
Curtiinfo Only) Graham, Stafford C.C.C., #988437, 191 Constantine Wy, Aberdeen, WA 98520.
Susan F. Wilk, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Thomas Marshal Curtis, Snohomish County Pros Ofc, 3000 Rockefeller Ave # 504, Everett, WA 98201-4060.
Seth Aaron Fine, Attorney at Law, Snohomish Co Pros Ofc, 3000 Rockefeller Ave, Everett, WA 98201-4060.
Affirmed by unpublished opinion per Baker, J., concurred in by Schindler, A.C.J., and Agid, J.
Curtis Eugene Graham was convicted of assault with a deadly weapon and unlawful possession of a firearm. He appeals, raising evidentiary issues, prosecutorial misconduct, and improper sentence enhancement for use of a firearm. We affirm, because Graham's confession was properly admitted, there was no misconduct, and the jury explicitly found that Graham was armed with a firearm.
I.
Graham was arrested in January 2004 for shooting Mohamed Sylla, a friend of Graham's ex-girlfriend Vivian Moore. Graham was held at the Bothell Police Department for about seven hours, and then brought to an interview room. Before the questioning began, a detective started a videotape recording of the interview room. The videotape recorded the entire interview, including the sounds. The detectives then asked for Graham's permission to record the interview and started a cassette tape recorder that was sitting in full view on the interview table. The consent form Graham signed said that it authorized `audio and/or video' recording, but Graham was never aware of the videotaping. At various times during the interview, the audiotape was either not functioning properly, or Graham had asked the detectives to turn it off. Also, the cassette recorder was inadvertently set to a `loop' function, so when the tape reached its end, it automatically flipped and kept recording. Earlier parts of the interview were accidentally taped over.
At one point, Graham invoked his right to counsel. The detectives stood up and left the room. Graham asked to go to the bathroom. Then there was a hallway conversation, the sound of which was partially captured by the videotape. The detectives and Graham returned to the room and Graham said he no longer wanted an attorney. Eventually, Graham confessed on the audiotape. Afterward, a complete transcript of the interview was created by piecing together portions of the audio and videotapes, including those parts that were not on the audiotape because it was off, not functioning, or taped over.
Before trial, there was a CrR 3.5 hearing to determine the admissibility of Graham's confession. The court excluded the video depictions entirely, ruling that they were obtained in violation of the Privacy Act. All audio obtained during the time Graham had consented, regardless of whether the transcript was obtained from the audiotape or the sounds from the videotape, was admitted. Graham was convicted. He appeals.
Ch. 9.73 RCW.
Admissibility of Graham's Confession
Unchallenged findings of fact from a CrR 3.5 hearing are verities on appeal. If challenged, they are verities if supported by substantial evidence in the record.
State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997).
A. Voluntariness
Graham first argues that police interrogation tactics were coercive, and his confession was involuntary. The alleged improprieties include a seven-hour detention, suggestions that he would not be allowed to post bail until he cooperated, and refusing permission to make a phone call. Graham argues that these tactics were meant to instill fear and give the impression that his detention would be indefinite until he confessed.
Substantial evidence supports the trial court's finding that Graham's confession was voluntary. The test for voluntariness is `whether, under the totality of the circumstances, the confession was coerced.' These circumstances include the defendant's condition, his mental abilities, and police conduct. Graham's seven-hour detention preceding the questioning was not inherently coercive. Graham was engaged, calm, and responsive throughout the questioning. He did not seem fearful or intimidated; he showed a willingness to talk. The officers honored his rights and were respectful. Although they did not allow him use of their department-issued cell phones, they did offer to call his girlfriend for him. They were honest with him when they explained the procedure for setting bail. The tone of the questioning was conversational for the most part and was not coercive. The trial court did not err in concluding that the confession was voluntary.
Broadaway, 133 Wn.2d at 132 (citing State v. Rupe, 101 Wn.2d 664, 678-79, 683 P.2d 571 (1984)).
Broadaway, 133 Wn.2d at 132.
State v. Saunders, 120 Wn. App. 800, 810, 86 P.3d 232 (2004).
B. Constitutional Right to Counsel
Graham maintains that the police did not scrupulously honor his invocation of the right to counsel and immediately provide counsel. The State contends that although Graham did invoke his right to counsel at one point, he immediately reinitiated contact and explicitly waived the right to counsel. The right to counsel during questioning arises from the Fifth Amendment protections against self-incrimination in the federal constitution and from Article I, sec. 9 of the Washington Constitution. Once a suspect in custody requests counsel, all questioning must cease until counsel is provided or the suspect reinitiates the conversation. Substantial evidence supports the trial court's findings. Finding of Fact 18 summarizes the trial court's reasoning:
No person can be forced to give evidence against himself, and that right is protected by the ancillary right to counsel during custodial questioning by police. U.S. Const. amend. V; Wash. Const. art. I, sec. 9; Miranda v. Arizona, 384 U.S. 436, 469, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Edwards v. Arizona, 451 U.S. 477, 485, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981).
At one point in the interview, the defendant stated he wanted an attorney. At that point the detectives immediately stopped the interview, and turned off the cassette tape. . . . The defendant was permitted to use the bathroom. During this brief break the defendant asked detectives a question. He was told by Detective Ungvarsky that he could not discuss the case because of the invocation of a right to counsel. The defendant said he wanted to talk more. Detective Ungvarsky asked the defendant if he wanted to reinitiate the conversation. The defendant said yes, he did want to talk more. The officers and the defendant went back into the interview room and turned the tape back on.
The court's finding was supported by substantial evidence in the record, including the testimony of the detectives and the partial recording of the hallway conversation. The trial court did not err in concluding that Graham reinitiated the conversation.
C. CrRLJ 3.1 and Access to Counsel
Graham asserts that his right to counsel under CrRLJ 3.1 was violated. This court rule requires that `a person in custody who desires a lawyer' must be provided with the means to contact counsel `at the earliest opportunity.'
CrRLJ 3.1(c)(2).
In State v. Kirkpatrick, a suspect was arrested in Port Angeles and questioned for 90 minutes, at which time he asked for a lawyer. The police ceased questioning, but did not provide Kirkpatrick with access to a lawyer. Later, a detective drove him to Lewis County. During the four-hour journey from Port Angeles to Lewis County, Kirkpatrick initiated conversations with the detective and said he no longer wanted a lawyer. He eventually confessed on tape. Kirkpatrick made his request for a lawyer at the police station during working hours, and did not withdraw the request until some time had elapsed. On appeal, the court concluded that Kirkpatrick was not provided with access to counsel at the `earliest opportunity,' which was immediately after his request.
89 Wn. App. 407, 948 P.2d 882 (1997).
Kirkpatrick, 89 Wn. App. at 409.
Kirkpatrick, 89 Wn. App. at 409.
Kirkpatrick, 89 Wn. App. at 409-10.
Kirkpatrick, 89 Wn. App. at 415.
The court concluded that the officers had violated CrR 3.1(c)(2). The only other case on point is State v. Wade. Wade requested counsel upon arrest and was immediately transported to the police station. Before the booking process ended, he was approached by an officer he knew. He told the officer he wanted to talk, signed a waiver, and confessed. All of this took place within one hour. On appeal, the court held that Wade had waived his right to counsel before his first opportunity to contact a lawyer, which was right after the booking process was completed. CrRLJ 3.1 only applies when the person in custody desires a lawyer. This case is similar to Wade, because Graham waived his Fifth Amendment right to counsel almost immediately after invoking it. Once he waived his constitutional right to counsel, he no longer desired a lawyer. Because there was no opportunity to provide Graham access to counsel during the three-minute time period that he desired a lawyer, the detectives did not violate the court rule.
Kirkpatrick, 89 Wn. App. at 414-15.
44 Wn. App. 154, 721 P.2d 977 (1986).
Wade, 44 Wn. App. at 157.
Wade, 44 Wn. App. at 159.
Wade, 44 Wn. App. at 159.
D. Due Process and Gunwall
Graham next suggests that Washington has stronger due process protections than the federal constitution, providing independent state grounds for excluding the confession. He conducts an analysis of the subject under State v. Gunwall. For the purpose of appellate review, the Washington due process clause is considered equal to the federal due process clause unless the appellant conducts a Gunwall analysis. Graham undertook the analysis, so we address the issue.
106 Wn.2d 54, 720 P.2d 808 (1986).
In re Pers. Restraint of Dyer, 143 Wn.2d 384, 394, 20 P.3d 907 (2001).
The six Gunwall factors are: (1) the textual language; (2) differences in the texts; (3) constitutional history; (4) preexisting state law; (5) structural differences; and (6) matters of particular state or local concern. Graham concedes that the federal and state due process clauses are textually identical. He also notes that our state constitutional and common law history is unrevealing. A review of state law shows that Washington's due process clause does afford greater protections, but only when United States Supreme Court interpretations of the federal clause lead to offensive or fundamentally unfair results. Graham claims that federal law allows for `[f]rightening a suspect into believing his detention will be indefinite and he will be denied access to counsel or family until he cooperates with an interrogation.' But he points to no federal case that stands for this proposition. He shows no federal standard from which to depart.
Gunwall, 106 Wn.2d at 58.
Article I, sec. 3 of Washington's Constitution states, `No person shall be deprived of life, liberty, or property, without due process of law.' The Fifth Amendment says, `No person shall be . . . deprived of life, liberty, or property without due process of law.'
See, State v. Bartholomew, 101 Wn.2d 631, 640, 683 P.2d 1079 (1984) (overruled on other grounds) (allowing evidence of prior criminal activity regardless of whether defendant was charged or convicted was `particularly offensive' in capital penalty phase); State v. Davis, 38 Wn. App. 600, 605-06, 686 P.2d 1143 (1984) (ruling that postarrest silence could be used against defendant absent Miranda warnings `fundamentally unfair' and not adopted).
For Gunwall factor 5, Graham argues that `Article I, sec. 3 should be construed so as to discourage the concerted behavior of police to deny suspects in custody access to counsel and mislead them regarding their constitutional rights.' Graham has failed to show how the federal constitution does not adequately protect against this danger, nor why a ruling in his favor on this issue would reflect a difference in the structure of our constitution.
Finally, factor 6 addresses matters of particular state interest or local concern. Graham cites State v. Hensler and Heinemann v. Whitman County of Washington District Court for the proposition that the use of `deceptive practices' in custodial interrogations is a matter of `particular local concern in this state.' Curiously, both cases uphold police conduct, and neither involves custodial interrogation. Again, Graham has not demonstrated why Washington's local concern mandates a break from any contrary federal jurisprudence.
109 Wn.2d 357, 745 P.2d 34 (1987).
105 Wn.2d 796, 718 P.2d 789 (1986).
Hensler, 109 Wn.2d at 363; Heinemann, 105 Wn.2d at 809.
Hensler, 109 Wn.2d at 362; Heinemann, 105 Wn.2d at 808.
Graham has not shown how Washington must depart from federal law and hold that our constitution affords him greater protections than the Fifth and Fourteenth Amendments.
E. Privacy Act
Finally, Graham contends that no part of the secret videotape should have been admitted, and that this Privacy Act violation also required exclusion of the audiotape of his confession. RCW Ch. 9.73.090 establishes the parameters for recording a custodial interrogation:
(b) Video and/or sound recordings may be made of arrested persons by police officers responsible for making arrests or holding persons in custody before their first appearance in court. Such video and/or sound recordings shall conform strictly to the following:
(i) The arrested person shall be informed that such recording is being made and the statement so informing him shall be included in the recording;
(ii) The recording shall commence with an indication of the time of the beginning thereof and terminate with an indication of the time thereof;
(iii) At the commencement of the recording the arrested person shall be fully informed of his constitutional rights, and such statements informing him shall be included in the recording;
(iv) The recordings shall only be used for valid police or court activities.
Graham asserts that because he was never informed of the videotaping, the police violated RCW 9.73.090(b)(i): Graham did not know that `such' recording was being made. This violation of the statute's strict rules, Graham argues, necessitates not only the suppression of the videotape, but of the confession that he consented to have audiotaped as well.
The trial court made a finding of fact that Graham did not know about the video. This finding is not challenged on appeal.
RCW 9.73.090(b) does require strict compliance on its face. Nonconforming recordings are generally inadmissible. However, Graham cites no authority for the notion that a violation of the Privacy Act with respect to one recording negates the admissibility of another contemporaneous recording that conforms to the Act's requirements. Even assuming arguendo that the videotape was inadmissible, Graham fails to support his argument that its invalidity requires suppression of the audiotape as well. It is undisputed that the confession introduced at trial was from the audiotape, not the video. Therefore Graham's argument fails.
State v. Mazzante, 86 Wn. App. 425, 428, 936 P.2d 1206 (1997).
Graham's argument is that where the Act is violated, the fruits of the poisonous tree are also excluded. The audiotape does not fall into this category.
Graham also conducts a Gunwall analysis of the state constitutional right to privacy. Again, he makes no argument as to why the violation with respect to the videotape warrants suppression of the audiotape as well, and shows no federal law from which this state must depart in order to justify the audiotape's exclusion.
Prior Acts Evidence
Absent an abuse of discretion, we will not disturb the trial court's rulings on motions in limine, the admissibility of evidence, or motions for mistrial. The court abuses its discretion if a ruling is manifestly unreasonable or based upon untenable grounds or reasons.
See Hume v. Am. Disposal Co., 124 Wn.2d 656, 666, 880 P.2d 988 (1994) (admissibility of evidence); State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989) (motion for mistrial); Gammon v. Clark Equip. Co., 38 Wn. App. 274, 286, 686 P.2d 1102 (1984), aff'd, 104 Wn.2d 613, 707 P.2d 685 (1985) (motions in limine).
Wick v. Clark County, 86 Wn. App. 376, 382, 936 P.2d 1201 (1997).
Graham argues that certain acts of vandalism (tire slashing and breaking a window) were improperly admitted under ER 404(b) because they were not proved by a preponderance of evidence, and did not show motive or res gestae.
Before the court may admit evidence of past crimes or misconduct, it must: `(1) find by a preponderance of the evidence that the misconduct occurred; (2) determine whether the evidence is relevant to a material issue; (3) state on the record the purpose for which the evidence is being introduced; and (4) balance the probative value of the evidence against the danger of unfair prejudice.' Unfortunately, the bulk of the ER 404(b) discussion, including the judge's preliminary ruling, took place in chambers and was not transcribed. So the record does not reflect whether the argument was made or not. The court did conduct the proper ER 403 balancing test and stated the reasons for admission under ER 404(b). Despite an incomplete record of the court's reasoning, admission is upheld if supported by substantial evidence. Witness Vivian Moore testified that just before each tire slashing (in one instance only 7 hours earlier), Graham had made hostile calls to her cell phone. The exchange about the broken window had no connection to Graham:
State v. Trickler, 106 Wn. App. 727, 732, 25 P.3d 445 (2001) (citing State v. Brown, 132 Wn.2d 529, 571, 940 P.2d 546 (1997)).
State v. Benn, 120 Wn.2d 631, 653, 845 P.2d 289 (1993).
Q: Any other damage to your property during that period of time?
A. Yes. A rock was thrown through my window, my dining room window.
Q: Do you recall roughly when that was?
A. It was January, approximately around the middle of January.
Q: Have you ever had a rock thrown through your window?
A. No.
This is not substantial evidence that Graham broke the window. Substantial evidence supported the finding that Graham slashed Moore's tires, but the trial court erred in admitting evidence regarding the broken window.
The court's error regarding the broken window was harmless. Evidentiary error is grounds for reversal only if, with reasonable probability, it materially affected the outcome of the trial. `Improper admission of evidence constitutes harmless error if the evidence is of minor significance in reference to the evidence as a whole.' Given Graham's confession, Moore and Sylla's eyewitness accounts, the other admissible threats and acts of vandalism, and the fact that window breaking was unrelated to the crime charged, the error did not affect the outcome of the trial.
State v. Neal, 144 Wn.2d 600, 611, 30 P.3d 1255 (2001).
Neal, 144 Wn.2d at 611.
Evidence of a prior crime is not admissible to prove the defendant's propensity to commit the charged crime. But ER 404(b) does allow it for other purposes:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
ER 404(b).
ER 404(b).
The list of admissible purposes is not exclusive. Prior acts can complete the res gestae, or story, of the crime. They can also be admitted as evidence of motive. Motive is `what prompts a person to act.'
State v. Grant, 83 Wn. App. 98, 105, 920 P.2d 609 (1996).
State v. Tharp, 27 Wn. App. 198, 204, 616 P.2d 693 (1980).
State v. Powell, 126 Wn.2d 244, 260, 893 P.2d 615 (1995).
Powell, 126 Wn.2d at 261 (quoting Black's Law Dictionary 810 (6th ed. 1990).
Motive was a proper ER 404(b) basis on which to admit the challenged evidence. If a hostile relationship between two lovers can prompt one lover to kill the other, it can certainly prompt someone to shoot the current partner of his former girlfriend. Graham suggests that the prior acts might have been admissible if he had shot Moore, but that the acts are `too attenuated' in a crime against Moore's current boyfriend. But, the act would be relevant to motive in either case. Since the acts were properly admitted to show motive, there is no need to reach the res gestae issue. If any of the reasons to admit under ER 404(b) is justified, then the decision to admit is upheld.
Powell, 126 Wn.2d at 261.
Powell, 126 Wn.2d at 264.
Graham next suggests that a statement he made to Moore's mother about being `from the C-O-M-P-T-O-N' should have been excluded under ER 404(b) because it suggested that Graham had a gang affiliation. This evidence was neither highly probative — gang affiliation was not otherwise a part of the case — nor was it particularly prejudicial. It was one statement about being from a particular geographical area generally affiliated with gangs. In balancing these two elements, the trial court did not abuse its discretion when it admitted the statements.
Cf. State v. Campbell, 78 Wn. App. 813, 821-22, 901 P.2d 1050 (1995) (detailed evidence about defendant's actual gang affiliation and activities highly probative and not unduly prejudicial under ER 404(b) because it fit the State's theory of the case).
Finally, Graham maintains that the trial court did not provide the jury with an instruction on the limited uses of ER 404(b) evidence. Graham did not request the instruction. Failure to give such an instruction, even if it would have been proper to give one, was not manifest constitutional error, and may not be raised for the first time on appeal. Alibi Evidence
RAP 2.5(a); State v. Ellard, 46 Wn. App. 242, 244, 730 P.2d 109 (1986).
Graham claims that the prosecutor committed misconduct by eliciting testimony about Graham's discredited alibi. He also maintains that the trial court erred in refusing his proposed curative instruction on alibi evidence. When prosecutorial misconduct is alleged, the defense must show that the conduct was improper and prejudicial. Alleged misconduct `should be reviewed in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given.' The prosecutor elicited testimony from a detective that Graham had presented an alibi, then later abandoned it after phone calls were placed to the alibi witness. The content of the calls was excluded by the trial court, but the fact that the calls were made was allowed in.
State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994).
The questions and answers were not a direct statement on Graham's credibility, although the jury might conclude that Graham had lied. Facts and observations by a witness are admissible, even if they lead to the inference that the defendant is lying. Eliciting this testimony was not prosecutorial misconduct.
See State v. Allen, 50 Wn. App. 412, 418-19, 749 P.2d 702 (1988) (police officer can recount personal observations of conduct that directly and logically supported conclusion that defendant was not being sincere).
Errors of law in jury instructions are reviewed de novo; reversal is required when erroneous instructions prejudice a party. Jury instructions are sufficient if they are not misleading, properly tell the jury the applicable law, and allow both parties to argue their case theories. It was not error for the trial court to refuse Graham's instruction on alibi evidence. Because there was no misconduct, no curative instruction was needed. Also, the court properly instructed the jury that the defendant had no burden of proof, so the defendant was not prejudiced.
Hue v. Farmboy Spray Co., 127 Wn.2d 67, 92, 896 P.2d 682 (1995).
Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 662, 935 P.2d 555 (1997).
Pro Se Motion
Graham next argues that the trial court refused to grant a motion to proceed pro se at the sentencing hearing. His only motion at the sentencing hearing was for ineffective assistance of counsel. Later, he interrupted the prosecutor's recitation of criminal history and asked, `Your Honor, may I represent myself concerning that paperwork, please?' The court asked Graham not to interrupt, and told him he would have a chance to speak. He made no further mention of self-representation. This single comment was also not a timely, unequivocal, knowing and intelligent pro se motion, which Graham acknowledges is the proper standard. There was no error.
State v. DeWeese, 117 Wn.2d 369, 377-78, 816 P.2d 1 (1991).
Firearm Enhancement
Graham contends a five-year firearm enhancement was improper because the jury found that he was armed with a deadly weapon, warranting only a two-year enhancement. In State v. Recuenco, our Supreme Court found a `deadly weapon' special verdict form insufficient for a firearm enhancement, even when the evidence shows that a firearm was used, unless the jury explicitly finds beyond a reasonable doubt that the defendant was armed with a firearm. In Recuenco, both the charges and the jury instructions referred to a `deadly weapon.' Although evidence was admitted that indicated the weapon was a firearm, there was no explicit jury finding that a firearm was used.
154 Wn.2d 156, 110 P.3d 188 (2005).
Recuenco, 154 Wn.2d at 164.
Recuenco, 154 Wn.2d at 160.
Recuenco does not apply. The jury specifically convicted Graham of unlawful possession of a firearm. Also, they could not have convicted Graham of first degree assault without finding that he was armed with a firearm. This was explicit in Instruction 8:
To convict the defendant of the crime of assault in the first degree as alleged in Count I, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 14th day of January, 2004, the defendant assaulted Mohammed Sylla;
(2) That the assault was committed with a firearm. . . .
The jury convicted Graham of first degree assault. Because the jury explicitly found beyond a reasonable doubt that Graham was armed with a firearm, the firearm enhancement was proper.
Cumulative Error
Finally, Graham argues cumulative error. `The combined effect of an accumulation of errors, no one of which, perhaps, standing alone might be of sufficient gravity to constitute grounds for reversal, may well require a new trial.' In this case, there was one error in admission of testimony about the broken window. The error was harmless, and Graham did not receive an unfair trial.
State v. Badda, 63 Wn.2d 176, 183, 385 P.2d 859 (1963).
AFFIRMED.
SCHINDLER and AGID, JJ., concur.