Opinion
No. 24664-7-III.
May 31, 2007.
Appeal from a judgment of the Superior Court for Spokane County, No. 05-1-00806-8, Gregory D. Sypolt, J., entered September 23, 2005.
Jody Allen Miller asserts that his convictions for first degree trafficking in stolen property and second degree theft must be reversed because they were unconstitutionally obtained. He contends that because officers did not inform him of the purpose of their interrogation of him and because of the officers' conduct of a ruse — which made him believe that his girl friend turned him in and that he was positively identified on a security tape — his will to assert his rights was overcome. Through an ineffective assistance of counsel claim, he also asserts that he was entitled to a lesser included offense instruction of possession of stolen property for the trafficking charge. We conclude that Mr. Miller's confession was voluntary. We also conclude that because he was not entitled to a lesser included offense instruction, he was not prejudiced by deficient performance of trial counsel. We therefore affirm his convictions.
Facts
Mr. Miller had been detained at Geiger Correctional Facility for several days on a domestic violence/malicious mischief charge involving Charity Phelps when Detectives David Singley and Paul Lebsock arrived to speak with him on March 8, 2005. Prior to any interrogation, Detective Singley advised Mr. Miller of his rights and provided a constitutional rights card. Mr. Miller was initially reluctant to sign because, he stated, he did not know what he would be asked. Detective Singley informed Mr. Miller that he could have an attorney present and he could stop answering questions at any point. As Mr. Miller signed the rights card indicating that he understood his rights and wished to waive them, he stated that he would answer only the questions he wanted to answer.
Mr. Miller was asked if he knew Ms. Phelps; he responded that he did. He stated that she was not his girl friend, but he knew her for a long time. When asked to describe her, he stated that she is a damn liar. The detective then asked Mr. Miller whether he was with Ms. Phelps at a Pawn 1 store. He initially gave an inaudible response and then said "damn liar." Report of Proceedings (RP) at 63.
Detective Singley, using a ruse, stated that Ms. Phelps informed police that she was with Mr. Miller at the pawn store. Mr. Miller replied that "she's a drug addict and has female problems." RP at 63. Continuing with the ruse, Detective Singley said that he knew Ms. Phelps was not lying because he had seen the store's security video and he was certain that it was Mr. Miller on the videotape. Mr. Miller responded, "Oh, I see. Well, you already know the truth and you're trying to trick me." RP at 63. He conceded that "you got me then." RP at 63. The detective told Mr. Miller that he wanted to know Mr. Miller's side of the story.
Mr. Miller admitted that on February 19, 2005, he grabbed some jewelry — which he later determined was eight rings — out of an unlocked jewelry case at the pawn store. Mr. Miller whispered to Ms. Phelps what he had done. They left the store and separated. Ms. Phelps picked up Mr. Miller about a block away. Mr. Miller stated that when he got into the car, he tossed the rings into Ms. Phelps' purse.
The couple then went to Valley Hospital where Ms. Phelps used the name "Misty" to try to get admitted in order to get Hydrocodone. RP at 64. While waiting, Mr. Miller called a drug dealer and made arrangements to trade the jewelry for drugs. The couple left the hospital and Mr. Miller traded two rings for Hydrocodone pills and crack cocaine along with $20 cash. He returned later and traded more jewelry for drugs. Mr. Miller explained to the detective that he and Ms. Phelps were drug addicts; he preferred cocaine and Ms. Phelps preferred Hydrocodone.
The addiction testimony was excluded at trial.
Mr. Miller informed the detective that, because the value of the jewelry added up to between $800 and $1,000, he knew the offense for which he would be charged would be no more than second degree theft. Mr. Miller was charged with first degree trafficking in stolen property and second degree theft.
The court held a CrR 3.5 hearing on the admissibility of Mr. Miller's statements to the detectives. Both detectives testified at the hearing, as did Mr. Miller, to the facts as stated above. Mr. Miller asserted that he spoke to the detectives only because he believed that they wanted to talk about the domestic violence/malicious mischief matter involving Ms. Phelps. Mr. Miller stated that when he learned that the officers wanted to talk about the pawn store theft he discussed it, though he did not intend to do so, only because he was hurt by Ms. Phelps' betrayal and he felt tricked by police. Mr. Miller claimed that his will to invoke his constitutional rights was overcome by the circumstances. The court ruled that Mr. Miller's confession was voluntary and admissible.
Evidence similar to that introduced at the pretrial hearing was produced at trial, including Mr. Miller's admission that he stole the rings. Mr. Miller was found guilty as charged. The court denied his motion for a new trial.
Confession
We review a trial court's ruling on a motion to suppress evidence by determining whether substantial evidence supports its findings of fact; we then decide if the findings of fact support the trial court's conclusions of law. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994); State v. Crane, 105 Wn. App. 301, 305-06, 19 P.3d 1100 (2001). Substantial evidence is evidence sufficient to persuade a rational, fair-minded person of the truth in the finding. Hill, 123 Wn.2d at 644. We review the trial court's conclusions of law de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999).
The trial court did not enter written findings of fact and conclusions of law as required by CrR 3.5(c). Mr. Miller does not assign error to this irregularity. Though the failure to submit written findings and conclusions in accordance with CrR 3.5(c) is error, it is harmless as long as the trial court's oral findings are sufficient to permit appellate review. State v. Riley, 69 Wn. App. 349, 352-53, 848 P.2d 1288 (1993); State v. Clark, 46 Wn. App. 856, 859, 732 P.2d 1029 (1987). Here, the trial court gave detailed oral findings, which were transcribed to 10 written pages. The trial court's oral ruling in this case is sufficiently detailed to permit review. Additionally, the trial court found that the only disputed facts involved Mr. Miller's perceptions of the reason why the detectives came to see him when he was incarcerated at Geiger. Mr. Miller does not assert that there is a factual issue.
Mr. Miller contends that the confession was involuntary under the totality of the circumstances — his confusion about the subject matter of the interview and the knowing misrepresentations made by the detective to induce the confession.
A confession is not voluntary 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) (citing State v. Broadaway, 133 Wn.2d 118, 132, 942 P.2d 363 (1997)). The court may consider a number of factors in the totality test including the defendant's physical condition, age, mental abilities, and physical experience. Broadaway, 133 Wn.2d at 132. Another relevant circumstance is whether the confession was "extracted by any sort of threats, violence, or direct or implied promises, however slight." State v. Riley, 17 Wn. App. 732, 735, 565 P.2d 105 (1977). Police conduct is also a consideration. State v. Aten, 130 Wn.2d 640, 664, 927 P.2d 210 (1996); Burkins, 94 Wn. App. at 694. "A trial court's determination of voluntariness will not be disturbed on appeal if there is substantial evidence in the record from which the trial court could have found by a preponderance of the evidence that the confession was voluntary." State v. Cushing, 68 Wn. App. 388, 393, 842 P.2d 1035 (1993).
Mr. Miller cites no authority, and none can be found, that holds that a defendant's initial misunderstanding regarding the subject matter of the questioning renders a defendant's post- Miranda statement involuntary. Mr. Miller does not contend, and the facts would not support a contention, that the detective misled him as to the nature of the interview.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
A similar argument, based on Sixth Amendment rights, was rejected in State v. Stewart, 113 Wn.2d 462, 474, 780 P.2d 844 (1989). In Stewart, the defendant asserted that the right to counsel he invoked when arraigned on a pending charge extended to a custodial interrogation on an unrelated charge because the possibility of confusion demanded the protection of unwary defendants. In finding the defendant's statement admissible, the court reasoned that any confusion can be clarified during the custodial interrogation and that the Fifth Amendment requires that the accused be warned of his rights before questioning. Stewart, 113 Wn.2d at 473-74. Mr. Miller was advised of his constitutional rights here. He was specifically informed that he could discontinue the questioning at any time and that he could refuse to answer any question.
Mr. Miller's claimed confusion is not supported by the record. The trial court found that any confusion was not objectively reasonable. Although Mr. Miller was asked about Ms. Phelps at the outset, the detective made it immediately clear that the inquiry was about the pawn store theft. Mr. Miller initially mumbled and reiterated that Ms. Phelps was a "damn liar," but he continued to answer questions, and in fact spoke very freely about the Pawn 1 matter. RP at 68. The trial court found that based on this exchange, Mr. Miller was sufficiently advised of the purpose of the interview so that it would not be reasonable for Mr. Miller to be confused.
The trial court also found that Mr. Miller, after having been reasonably advised of the nature of the inquiry, did not attempt to invoke his rights, which the detective told him he could do at any time. The court found that there was no equivocation by Mr. Miller; he was only initially reluctant to sign the card. And his disinclination disappeared with the detective's assurance that Mr. Miller could stop the interview at any time, refuse to answer any question, and ask for an attorney. Finally, the court found that Mr. Miller stated early in the interview that he would answer only those questions that he wished to answer. These findings support the trial court's conclusions that Mr. Miller understood his rights and he was not equivocal in his decision to sign the rights card, and there was no coercion, threats, or promises.
The trial court further found that the detective used "ruse behavior" in the interview by telling Mr. Miller that Ms. Phelps informed on him, and that he was certain that it was Mr. Miller on the videotape. RP at 69. But, the court concluded, "that behavior did not rise to an outrageous level such that the Court should use that as a basis to exclude the statements." RP at 69.
A police detective's deception alone does not make a statement inadmissible as a matter of law; rather, the inquiry is whether the deception made the waiver of constitutional rights involuntary. Burkins, 94 Wn. App. at 695. Confessions have been held voluntary "when police falsely told a suspect that his polygraph examination showed gross deceptive patterns, when police told a suspect that a co-suspect named him as the triggerman, and when police concealed the fact that the victim had died." Id. at 695-96.
In Burkins, cited by the State, police lied to a murder suspect by stating that the victim was a robbery suspect and they had recovered her body. The suspect responded by telling the police that the victim had attempted to rob him and ultimately leading the police to the body. Id. at 695. The defendant asserted on appeal that the deception rendered his statements involuntary. But he did not allege that his physical condition, age, mental abilities, or physical experience affected his decision to confess. Id. Thus, the record did not support the defendant's contention that his will was overborne by the police ruses so that his confession was not freely self-determined. Id. at 695-96.
Mr. Miller also does not assert that his personal circumstances influenced his confession. The record shows that he had been incarcerated on another charge for several days when Detective Singley, accompanied by Detective Lebsock, interviewed him for about 30 minutes. Mr. Miller was 34 years old at the time of the interrogation and the court commented at least once during the proceedings that Mr. Miller is intelligent and articulate. Mr. Miller also conceded that he had been previously advised of his rights upon his several previous felony arrests. In fact, his judgment and sentence shows at least 17 prior offenses. The trial court correctly concluded that there was nothing about Mr. Miller's personal circumstances, the timing or atmosphere of the interview, or any additional facts to demonstrate that Mr. Miller's will was overborne. There is substantial evidence in the record to show that Mr. Miller's confession was voluntary.
Lesser Included Offense Instruction
Mr. Miller asserts that he was denied effective assistance of counsel because his trial counsel did not request a lesser included offense instruction.
To prove a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. State v. Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116 (1990) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). A defendant alleging ineffective assistance bears the burden of showing deficient representation based on the record established in the proceedings below. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Given that the presumption is in favor of effective representation, Mr. Miller has the burden to show from the record the absence of legitimate strategic or tactical reasons that would support the challenged conduct by counsel. Id. at 336.
Prejudice is established if there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 337. Scrutiny of counsel's performance is highly deferential and there is a strong presumption of reasonableness. State v. Day, 51 Wn. App. 544, 553, 754 P.2d 1021 (1988). "If counsel's conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as a basis for a claim of ineffective assistance." Id.
Mr. Miller asserts that the deficiency lies in the failure to request an instruction of possession of stolen property as a lesser included offense of trafficking in stolen property. Mr. Miller would have been entitled to have the jury instructed on a lesser included offense if: (1) each of the elements of the lesser offense is a necessary element of the offense charged (the legal test), and (2) the evidence in the case supports an inference the lesser crime was committed (the factual test). State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978).
To convict Mr. Miller of possession of stolen property, the jury would have to find that he did "knowingly . . . receive, retain, possess, conceal, or dispose of stolen property knowing that it has been stolen and to withhold or appropriate the same to the use of any person other than the true owner or person entitled thereto." RCW 9A.56.140(1). The jury was instructed that a conviction for trafficking in stolen property requires proof that Mr. Miller did knowingly "sell, transfer, distribute, dispense, or otherwise dispose of stolen property to another person." RP at 179-80.
The State takes no issue with the legal test. Under the factual test "the evidence must raise an inference that only the lesser included/inferior degree offense was committed to the exclusion of the charged offense." State v. Fernandez-Medina, 141 Wn.2d 448, 455, 6 P.3d 1150 (2000). Mr. Miller testified that he gave the rings to Ms. Phelps and he does not state what happened to them after that. The State asserted that Mr. Miller traded the rings for drugs. Mr. Miller disposed of the rings in some fashion — either by trading them or giving them to Ms. Phelps. Because disposal of the stolen property is common to both charges, possession of stolen property could not be proved to the exclusion of the other.
Mr. Miller, in his statement of additional authorities on this issue, relies on State v. Knight, 54 Wn. App. 143, 772 P.2d 1042 (1989). The facts here are distinguishable. In Knight, this court held that possession of stolen property was a lesser included offense of attempted trafficking in stolen property. 54 Wn. App. at 155. Because the property for which the defendant was charged with trafficking (by selling it) ended up not being stolen property, the court required the State to amend the original trafficking charge to attempted trafficking. In the amended information, the State retained a reference from the original information to other property that was not involved in the stolen property sting operation it alleged. That property had been seized from the defendant's home and the property owners identified it as being stolen. Based on this unrelated stolen property, the record supported an inference that the defendant possessed some stolen property in his home. There is no such evidence of unrelated property here.
There is also some indication in the record that defense counsel's decision not to pursue a lesser included offense was likely strategic. Mr. Miller's main argument was that his trial testimony should be believed over Ms. Phelps' testimony and the testimony of the officer from Mr. Miller's confession. Evidence must affirmatively establish the defense theory; it is not enough that the jury might disbelieve the State's evidence. Fernandez-Medina, 141 Wn.2d at 457; State v. Berlin, 133 Wn.2d 541, 545-46, 947 P.2d 700 (1997).
The defense argued in closing that Mr. Miller's version of the events should be believed over Ms. Phelps' version because, motivated by anger and jealousy regarding Mr. Miller's new girl friend, she wanted to inculpate Mr. Miller. The defense also pointed out that Ms. Phelps was not credible due to her dishonesty: she was in the pawn shop to "return" a speaker she claimed was defective, when the speaker she returned was not the one the pawn shop sold to her. RP at 112. Further, the defense stated, Ms. Phelps returned to the pawn shop a few weeks later and told the manager that Mr. Miller stole the rings. But, counsel argued, she did this only because she knew there were security cameras in the store and the pawn shop had information to identify her from returning the speaker — she did not want to be accused of the crime and she wanted to keep the rings. As for the detectives, the defense argued that Mr. Miller told the officers that he sold the drugs because he thought that was what they wanted to hear since he was trying to make a deal with them.
Significantly, the defense also argued that the jury could not convict Mr. Miller of second degree theft if it found that the rings were not worth at least $250. The defense did its best to cast doubt on the pawn shop's valuation of the jewelry. But the defense did not request a third degree theft instruction. See RCW 9A.56.050(1) (providing that the theft of merchandise does not exceed $250).
The defense evidently took an "all or nothing" approach by attacking the sufficiency of the evidence and hoping for an acquittal. See State v. Ward, 125 Wn. App. 243, 249-50, 104 P.3d 670 (2004). This strategy does not necessarily constitute deficient performance. Id. Further, Mr. Miller does not assert that an "all or nothing" approach constituted deficient performance. But it shows that Mr. Miller did not meet his burden of showing the absence of legitimate strategic or tactical reasons for his counsel's conduct.
Finally, although Mr. Miller argues that there is a reasonable probability the outcome of the trial would have been different if the instruction were given, he does not explain from the record why this would be so.
Mr. Miller has not shown he was prejudiced by deficient performance of trial counsel.
Statement Of Additional Grounds
In his statement of additional grounds, Mr. Miller offers several additional bases for ineffective assistance of counsel. He also challenges some of the trial court's rulings.
Ineffective assistance of counsel — jury instructions. Mr. Miller asserts that he was entitled to an instruction for second degree trafficking in stolen property as a lesser included offense of first degree trafficking in stolen property. The statutes are identical, except for the mens rea element; "knowing" trafficking is required for first degree trafficking in stolen property while "reckless" trafficking is required for a second degree charge. RCW 9A.82.050, .055. Applying the analysis above, there is no evidence that Mr. Miller acted recklessly to the exclusion of acting knowingly when he sold, transferred, distributed, dispensed, or otherwise disposed of stolen property to either Ms. Phelps or the drug dealer.
A person has acted recklessly when the actor knew of and disregarded a substantial risk that a wrongful act may occur and his disregard of such substantial risk is a gross deviation from conduct that a reasonable man would exercise in the same situation. RCW 9A.08.010(1)(c).
The jury was instructed: "A person knows or acts knowingly or with knowledge when he or she is aware of a fact, circumstance or result which is described by law as being a crime, whether or not the person is aware that the fact, circumstance or result is a crime.
"If a person has information which would lead a reasonable person in the same situation to believe that facts exist which are described by law as being a crime, the jury is permitted but not required to find that he or she acted with knowledge.
"Acting knowingly or with knowledge also is established if a person acts intentionally." RP at 179.
Mr. Miller contends that the jury should have been given an accomplice instruction to inform it that Ms. Phelps promoted or facilitated the crime. Ms. Phelps, however, was not on trial. To the extent that Mr. Miller contends that he was an accomplice to Ms. Phelps, the evidence simply does not support it. Taking another approach, Mr. Miller asserts that the jury should have been given a "lesser included offense" instruction to consider him an accomplice. Accomplice liability is a distinct theory of criminal liability; it cannot be a "lesser included offense." State v. Elliott, 114 Wn.2d 6, 18, 785 P.2d 440 (1990) (citing RCW 9A.08.020(3)).
The accomplice statute, RCW 9A.08.020(3), provides: "A person is an accomplice of another person in the commission of a crime if:
"(a) With knowledge that it will promote or facilitate the commission of the crime, he
"(i) solicits, commands, encourages, or requests such other person to commit it; or
"(ii) aids or agrees to aid such other person in planning or committing it; or
"(b) His conduct is expressly declared by law to establish his complicity."
Ineffective assistance of counsel — security tape evidence. Mr. Miller contends that counsel should have moved for a mistrial when the pawn shop employee who introduced the security tape testified that he "manufacture[d] evidence" by cutting and pasting the video files to a disk. Statement of Additional Grounds at 2. Mr. Miller also asserts the court erred in allowing the jury to view this evidence.
The editing of the security video is an evidentiary issue. See ER 106 ("When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the party at that time to introduce any other part, or any other writing or recorded statement, which ought in fairness to be considered contemporaneously with it."); see also State v. Hawkins, 53 Wn. App. 598, 602, 769 P.2d 856, 777 P.2d 1052 (1989) (holding that the trial court's admission of a 20-minute summary of a 4½-hour surveillance audiotape was not an abuse of discretion). The pawn shop employee testified that he edited the tape to the relevant frames. Defense counsel conducted a thorough voir dire of the witness before the tape was played for the jury.
Moreover, because Mr. Miller testified that he took the jewelry from the pawn store, which the security tape purported to show, the evidence was merely cumulative. There was no error in the admission of the evidence and Mr. Miller was not prejudiced. See State v. Acheson, 48 Wn. App. 630, 635, 740 P.2d 346 (1987) ("`admission of evidence which is merely cumulative is not prejudicial error'") (quoting State v. Todd, 78 Wn.2d 362, 372, 474 P.2d 542 (1970)).
Ineffective assistance of counsel — witnesses, communication. Mr. Miller claims that counsel failed to inform him of the consequences of going to trial or that the State offered a plea bargain. There is nothing in the record to show that a plea bargain was offered, much less the failure to communicate it to Mr. Miller. He also asserts that his counsel failed to call witnesses to testify that Ms. Phelps still had the rings. The decision to call witnesses is presumed to be a matter of legitimate trial tactics. In re Pers. Restraint of Davis, 152 Wn.2d 647, 742, 101 P.3d 1 (2004). Without evidence to support either of these claims, they cannot be addressed on direct appeal. McFarland, 127 Wn.2d at 335.
Continuance. Next, Mr. Miller asserts that it was an abuse of discretion not to continue his motion for a new trial, in which he claimed ineffective assistance of counsel on the lesser included offense issue, because his new attorney did not have sufficient time to prepare. The record reflects that Mr. Miller was granted "a liberal extension of time" to prepare the motion. RP at 213. Additionally, because Mr. Miller's substantive claim was addressed on appeal, he was not prejudiced.
Evidentiary rulings. Mr. Miller also asserts that the court erred in allowing reference to drug use when the charges did not directly involve drug use. A pretrial decision to admit or exclude relevant evidence is within the sound discretion of the trial court and the court's decision will not be reversed absent a manifest abuse of discretion. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). Notably, the State volunteered to refrain from addressing evidence that Mr. Miller and Ms. Phelps were drug addicts and that the crack cocaine and Hydrocodone were their drugs of choice. After careful consideration — even revisiting the issue the next day after having decided the issue prior to evening recess — the court denied the motion in limine to exclude the reference to the nature of the items traded for the rings. It concluded that the information was needed in order to present a complete story, "given the close sequence of time and place and the nexus between all the events." RP at 87. There was no abuse of discretion.
We affirm.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, C.J. and BROWN, J., Concur.