Opinion
No. 56936-8-I.
November 13, 2007.
Sky Steven Thomas Miller appeals his judgment and sentence, claiming that the State's failure to electronically record his interrogation violated his right to due process under article I, section 3 of the Washington Constitution. State v. Spurgeon controls. We affirm.
63 Wn. App. 503, 820 P.2d 960 (1991).
Sky Miller was convicted by a jury on one count of attempted first degree robbery and two counts of first degree robbery. The charges were based on incidents that occurred at three Seattle-area banks in March 2005.
Prior to trial, a CrR 3.5 hearing was held to determine the admissibility of oral and written statements attributed to Miller. Detective Dag Aakervik of the Seattle Police Department testified that he arrived at Miller's motor home just as police were arresting him, and that he read Miller his Miranda warnings while Miller sat in the back of a patrol car near the motor home. According to
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Aakervik, Miller said he understood his rights and was willing to talk. Officers took Miller to an interview room at Seattle FBI headquarters but did not re-issue the Miranda warnings. Aakervik testified that he and his partner, Detective Thomas Healy, told Miller they knew he was involved in the bank robberies, and Miller immediately confessed to the crimes. Aakervik asked Miller to provide a written confession. Aakervik had Miller sign a waiver form, wrote a statement for Miller, and had Miller sign it after giving him the opportunity to make changes. Aakervik testified that during the interview, he did not make any threats or promises, Miller was coherent, and Miller did not request an attorney.
Miller's account of events differed in several respects. Miller testified at the CrR 3.5 hearing that he remembered seeing both Aakervik and Healy outside his motor home at the time of his arrest "because they were wearing FBI jackets." He testified that no one read his Miranda rights to him at the time of his arrest and that he did not talk to Aakervik until he was taken to FBI headquarters. When asked if officers warned him of his Miranda rights, Miller responded, "I think so. It is kind of foggy, but yeah, I believe so." After being read his rights, Miller testified that he told Aakervik and Healy he wanted an attorney, but the officers told him he did not need an attorney. Miller testified that "[t]hey couldn't promise anything, but . . . the prosecution would most likely . . . go a lot easier on me if I voluntarily gave a statement."
Miller also testified that at the time he was arrested, he normally used about six grams of heroin a day, which allowed him to function — "meaning I am not sick, vomiting, able to walk, able to think rationally." He testified that he had been using heroin all day and had taken additional heroin when he knew the police were coming because he did not want to be caught with drugs. He also testified that he was fighting to stay awake during the interrogation and that Aakervik and Healy had to bump him repeatedly and bring him sodas to keep him alert.
Rebutting Miller's testimony, Aakervik testified at the hearing that Healy was not present at the arrest. He also testified that the jacket he wore to the arrest said "Police" rather than "FBI," but also acknowledged that some agents at the arrest scene wore FBI jackets. He also testified that he found Miller to be alert and coherent in the interrogation and that soda was offered as a courtesy.
Following the hearing, the trial court determined that Miller's testimony lacked credibility and ruled that Miller's oral and written statements were admissible. Following his conviction, Miller timely appeals.
DUE PROCESS
Miller argues that the State violated his due process rights under article I, section 3 of Washington's constitution when police did not electronically record his interrogation. He argues that such a recording would have resolved the issue of whether Miller asserted his right to an attorney before he was interrogated and whether Miller was capable of waiving his Miranda rights despite ingesting more heroin than he was accustomed to using.
The Washington State Supreme Court has practiced great restraint in expanding state due process beyond federal perimeters. The six, nonexclusive criteria announced in State v. Gunwall provide the framework for determining whether, in a given situation, Washington's constitution extends broader rights to its citizens than does the federal constitution. These criteria include (1) the state provision's textual language, (2) significant differences between the federal and state texts, (3) state constitutional and common law history, (4) pre-existing state law, (5) structural differences between the federal and state constitutions, and (6) matters of particular state interest or local concern.
Rozner v. City of Bellevue, 116 Wn.2d 342, 351, 804 P.2d 24 (1991).
106 Wn.2d 54, 61, 720 P.2d 808 (1986).
In re Matteson, 142 Wn.2d 298, 310, 12 P.3d 585 (2000).
In Spurgeon, this court addressed the same issue presented here — whether the state constitution's due process clause mandates electronic recording of custodial interrogations. Our Gunwall analysis revealed that Washington's due process clause does not require police officers to record interrogations.
State v. Spurgeon, 63 Wn. App. 503, 820 P.2d 960 (1991).
Id. at 505-06.
In Spurgeon, this court concluded that because the language of the state and federal due process clauses is the same, and there is no contemporary record or legislative history showing that a broader meaning was intended by those adopting Washington's constitution, the first three Gunwall factors did not support independent interpretation. In examining the fourth factor, preexisting Washington law, the Spurgeon court noted that Washington courts had not previously discussed the need to record interrogations. Looking at the fifth factor, the court concluded that structural distinctions did not suggest that Washington's due process clause should be read more expansively than its federal counterpart. Similarly, on the sixth factor the court concluded that the fact that criminal law enforcement is primarily a function of the state rather than federal government did not provide a basis for affording a greater quantum of constitutional protection to Washington citizens.
Id. at 506.
Id. at 507.
Id. at 506-07.
Id. at 507.
Miller argues that the analysis of the fourth and sixth factors in Gunwall should yield a different result here.
Regarding the fourth factor, pre-existing state law, Miller argues that Washington's due process clause has already been interpreted to provide greater due process protections than its federal analog. Although Miller's observation is correct, the cases do not address the issue contested here — whether due process requires police to electronically record interrogations. The two cases which took a broader view, State v. Davis and State v. Bartholomew, were decided prior to Spurgeon, yet the supreme court declined review of Spurgeon. State v. Ortiz, the only later case relied on, found no broader protection compared to the federal due process clause.
Appellant's Brief at 19-20 (citing State v. Ortiz, 119 Wn.2d 294, 831 P.2d 1060 (1992) (holding that Washington's due process clause does not provide broader protection than the federal due process clause regarding the preservation of potentially exculpatory evidence); State v. Davis, 38 Wn. App. 600, 686 P.2d 1143 (1984) (holding that Washington's constitution, unlike the federal constitution, does not allow comment on post-arrest silence even if defendant has not received Miranda warnings); State v. Bartholomew, 101 Wn.2d 631, 683 P.2d 1079 (1984) (holding that Washington's due process clause requires the rules of evidence to be applied to capital sentencing proceedings)).
38 Wn. App. 600, 686 P.2d 1143 (1984).
101 Wn.2d 631, 683 P.2d 1079 (1984).
119 Wn.2d 294, 831 P.2d 1060 (1992).
On the sixth factor, whether the issue is a matter of particular state interest or local concern, Miller cites Heinemann v. Whitman County to support his argument that preventing police from engaging in deceptive and coercive practices is a particular local concern in Washington. Admittedly, preventing deceptive and coercive interrogations is a purpose for requiring Miranda warnings prior to custodial interrogations. However, we do not read Heinemann to require more, or to require the electronic recording of interrogations to prevent such practices.
105 Wn.2d 796, 718 P.2d 789 (1986).
In sum, Miller does not cite any developments in Washington law or offer arguments to convince us that Spurgeon is flawed and that a different result is required by the Gunwall analysis here.
Miller also urges us to deviate from Spurgeon because other states have recognized that electronic recording of custodial interrogations is an important safeguard. Alternately, Miller argues that even if Washington's constitution does not require that custodial interrogations be electronically recorded, this court should follow the example of other states and announce such a rule by exercising its supervisory power. He cites In re Jerrell and State v. Scales to support these arguments. We find these cases unpersuasive.
283 Wis.2d 145, 699 N.W.2d 110 (2005).
518 N.W.2d 587 (Minn. 1994).
In Jerrell, the Wisconsin Supreme Court exercised its supervisory power to regulate the admissibility of juvenile confessions as evidence. The court announced that unrecorded interrogations and any resultant written confessions, although still legal, were inadmissible as evidence in a juvenile case. That court adopted its rule specifically to protect youth of that state and to tackle the "false confession issue." Its analysis that focused on protecting juveniles is unpersuasive to the dissimilar situation before us.
Jerrell, 283 Wis.2d at 168.
Id. at 172.
In Scales, the Minnesota Supreme Court declined to reach the issue of whether Minnesota's due process clause required police to record custodial interrogations. It announced the rule as an exercise of its supervisory power and because it was disturbed that law enforcement officers had ignored the court's repeated warnings to record custodial interviews.
Scales, 518 N.W.2d at 592.
Miller is not a juvenile, nor is this a situation where police have repeatedly ignored the directions given by Washington courts. Moreover, Miller's case is not a compelling example of why such a rule is necessary. These cases provide no guidance for constitutional inquiry. It is our view that this policy debate would be better resolved by the legislature or by the supreme court under its rule-making authority.
Spurgeon controls this case. We hold that the State did not violate Miller's due process right under article I, section 3 of the Washington Constitution when police did not electronically record his interrogation.
We affirm the judgment and sentence.