Opinion
No. 36241-4-II.
March 31, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-02460-7, Frederick W Fleming, J., entered April 20, 2007.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Van Deren, C.J., and Houghton, J.
UNPUBLISHED OPINION
Todd Dwayne Rogers appeals his conviction for first degree premeditated murder. We affirm.
FACTS
Rogers met Jason "Jake" Johnson and Timothy "Sky" Jackson in 2001. 9 RP at 1218. But after their initial meeting, Rogers only had intermittent contact with Johnson and Jackson. The three reconnected in May 2006.
On May 8 or 9 of 2006, Rogers and Johnson had a confrontation at a barbecue. According to Johnson's girlfriend, Jessica Jackson, Rogers "exploded" after exchanging heated words with Johnson. 4 RP at 368. Rogers appeared outraged as he gestured and yelled. Jessica heard Rogers say, "Watch. Watch. I'm gonna show you," as he made a gun gesture with his hand, pointing at Johnson. 4 RP at 369. Jessica eventually stepped in and put a stop to the confrontation. She and Johnson left shortly thereafter. Following that incident, Rogers told his girlfriend, Sharry Caulder, that Johnson was trying to start something at the barbeque. According to Caulder, Rogers was not angry, but he did say that he was not interested in spending time with Johnson anymore. Jackson was not present at the barbecue.
We refer to Jessica Jackson by her first name to avoid confusion. We mean no disrespect.
On May 13, 2006, Jackson and Johnson were at a party at Karisha Pierce's apartment. Rogers and Caulder also stopped by the apartment sometime between 2:00 and 3:00 am. According to Rogers, Johnson arrived at the same time and informed him that Jackson was in the apartment. Before entering Pierce's place, Rogers gave Caulder the car keys, anticipating that there was a possibility of an altercation between himself, Jackson, and Johnson. Rogers also had a fully loaded gun in his jacket pocket.
Once inside the apartment, Johnson approached Rogers, insisting that they needed to talk. Rogers joined Johnson and Jackson on the apartment's balcony. He stood in or next to the doorway. Moments later, Caulder heard gunshots and watched Johnson go over the side of the balcony. Caulder instinctively moved from the couch, toward the front door. Jackson also moved from the balcony, into the apartment and toward the front door. According to Pierce, Jackson did not have a gun in his hand at the time and Rogers followed Jackson from the balcony into the apartment, continuing to fire his gun at Jackson.
By the time Jackson reached the front door, Caulder was already there. Jackson grabbed Caulder from behind, crouched down, and pulled her toward him to use her body as a shield. Rogers warned Jackson to let Caulder go. Rogers reached around Caulder's shoulder and shot Jackson in the back of the head. He then pushed Jackson's body away from the front door and fled with Caulder. They immediately discarded the gun and checked into a motel in Fife, Washington. There, Rogers cut his hair and shaved his face clean. Meanwhile, Caulder switched vehicles with a friend. Over the next few weeks, Rogers and Caulder stayed with various friends and acquaintances.
Meanwhile, Lakewood Police officers responded to the scene at McChord Tudor House apartment complex at approximately 3:15 am on the morning of the shootings. Once at the scene, the officers discovered Jackson lying faceup in the entryway of apartment number 22. Additionally, they discovered Johnson lying facedown on the ground, about 12 feet below apartment 22's balcony. Both Johnson and Jackson suffered multiple gunshot wounds. Jackson was pronounced dead at the scene. Johnson was pronounced dead at Madigan Army Medical Center later that morning.
A medical examiner later testified that Jackson had been shot three times: once in the left side of his chest, once in the back of his right shoulder, and once in the back of his head. The medical examiner opined that after Jackson sustained the chest and shoulder injuries, movement was still possible; however, the head wound would practically cause immediate death and movement thereafter would likely be impossible. In other words, the medical examiner declared that Jackson would not be able to walk across a room after sustaining the shot to his head. He also concluded that the muzzle of the gun was within 18 inches of Jackson's head when he was shot.
On May 31, 2006, Lakewood Police officers apprehended Caulder while she was driving Rogers's car. A few hours later, around midnight, they detained Rogers and transported him to the Lakewood Police Department. The officers placed Rogers in a holding cell, one arm handcuffed to a chair, until about 3:00 am, when they moved him to an interview room. The officers again handcuffed Rogers's left hand to the chair because of the nature of the charges. Detective Les Bunton and Sergeant Chris Lawler introduced themselves, informed Rogers that they were investigating a double homicide that occurred on May 13, and reread Rogers his Miranda rights. Rogers acknowledged that he understood those rights.
Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) (holding that custodial statements are inadmissible unless the officers warn the individual that (1) he has the right to remain silent, (2) any statement may be used against him, (3) he has the right to an attorney, and (4) he may waive those rights).
During the interview, Rogers twice stated: "I got nothing to say" because he did not "see any light at the end of the stick." 1 RP at 68. But the officers continued the conversation, asking why Rogers believed it would not be beneficial for him to talk to the officers. They explained that they wanted to understand his side of the story. They tried to build a rapport with Rogers by conversing about things other than the facts of the case for approximately 45 to 60 minutes. During this casual conversation, Rogers did not ask for an attorney, nor did he indicate that he wanted to stop talking.
Eventually, the officers confronted Rogers about the murders again, telling him that to them, it seemed like he "slaughtered" the victims and left the scene. 1 RP at 30. Rogers finally agreed to tell the officers what happened. He even asked them to tape the statement. Rogers's taped statement lasted 30 minutes, during which the officers re-administered his Miranda rights and Rogers again acknowledged that he understood those rights. In total, Rogers spoke to the officers for approximately an hour and a half.
The State charged Rogers with first degree premeditated murder of Jackson while armed with a firearm; second degree murder of Johnson while armed with a firearm; and first degree unlawful possession of a firearm.
On March 1, 2007, the trial court held a CrR 3.5 hearing to determine whether Rogers's custodial statements were admissible. At the hearing, Detective Bunton and Sergeant Lawler testified. According to the officers, when they questioned Rogers, he did not appear under the influence and he seemed aware of his surroundings. Detective Bunton described his contact with Rogers as nonaccusatory until a few minutes before they began taping Rogers's statement. Near the end of his taped statement, Rogers asked for some water and the officers said they would get him some when he finished recording his statement. They finished recording within minutes. Rogers chose not to testify at the CrR 3.5 hearing.
The trial court granted Rogers's motion to suppress. It found that when Rogers said "I have nothing to say," he was effectively invoking his right to remain silent. 1 RP at 120. As such, the trial court held that the State had to prove its case without using Rogers's custodial statements. The trial court did not rule whether the State could use Rogers's custodial statements for impeachment on cross-examination at that time.
Rogers then moved to sever count III, unlawful possession of a firearm. The trial court denied his motion and, as a result, Rogers pleaded guilty to unlawful possession of a firearm. He asserted self-defense to counts I and II during trial.
After the State concluded its case in chief, Rogers moved to prohibit use of his suppressed custodial statements for impeachment purposes. After hearing the parties' arguments, the trial court denied Rogers's motion. Nevertheless, Rogers testified in his own defense.
While on the stand, Rogers testified that he went to Pierce's party because she had invited him. He knew that Jackson would likely be at the party, but he did not know that Johnson would also be there. He brought a gun to the party because the neighborhood was unsafe. Once inside the apartment, according to Rogers, Jackson and Johnson cornered him on the balcony and attempted to rob him. When he turned to go back inside, the two men grabbed him and he believed they were going to throw him over the balcony. Rogers shook himself loose, pulled his gun out, and fired haphazardly. He watched Johnson go over the balcony while Jackson ran inside and grabbed Caulder. Rogers believed Caulder was in danger, so he shot Jackson.
The State used Rogers's custodial statements to impeach him during cross-examination. During cross-examination, Rogers admitted that "half [of the story he had told the police] was the truth, half was a lie." 9 RP at 1287. Indeed, much of his testimony was inconsistent with his prior statements to police. Rogers said that he lied because he did not want the police to think that he had gone to the party to kill Jackson and Johnson.
The jury found Rogers guilty of count I, premeditated first degree murder of Jackson. It also returned a special verdict that Rogers was armed with a firearm when he committed the crime. The jury, however, was unable to reach a verdict on count II, second degree murder of Johnson. Thus, the trial court declared a mistrial as to that count. Subsequently, Rogers pleaded guilty to second degree manslaughter of Johnson.
ANALYSIS I. Sufficient Evidence
To prevail on a challenge of the sufficiency of the evidence, Rogers must show that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Allen, 159 Wn.2d 1, 7, 147 P.3d 581 (2006). In testing the sufficiency of the evidence, we view the evidence in the light most favorable to the State, drawing all reasonable inferences from the evidence in the State's favor. State v. Gregory, 158 Wn.2d 759, 817, 147 P.3d 1201 (2006) (quoting State v. Clark, 143 Wn.2d 731, 769, 24 P.3d 1006, cert. denied, 534 U.S. 1000 (2001)).
A. Premeditated Intent
The State charged Rogers with the first degree premeditated murder of Jackson. Thus, the State was required to prove beyond a reasonable doubt that Rogers acted with premeditated intent to cause Jackson's death. RCW 9A.32.030(1)(a). Rogers contends that the State failed to meet its burden, but his contention lacks merit.
Premeditation is the deliberate formation of and reflection on the intent to take a human life and involves the mental process of thinking beforehand, deliberating on, or weighing the contemplated act for a period of time, however short. Allen, 159 Wn.2d at 7-8. It must involve more than a moment in time. RCW 9A.32.020(1); Allen, 159 Wn.2d at 8. The State can prove premeditation by circumstantial evidence where the inferences argued are reasonable and the evidence supporting them is substantial. Clark, 143 Wn.2d at 769. Examples of circumstances supporting a finding of premeditation include motive, prior threats, multiple wounds inflicted or multiple shots, striking the victim from behind, assault with multiple means or a weapon not readily available, and the planned presence of a weapon at the scene. See Allen, 159 Wn.2d at 8; Clark, 143 Wn.2d at 769; State v. Pirtle, 127 Wn.2d 628, 644-45, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996); State v. Hoffman, 116 Wn.2d 51, 83, 804 P.2d 577 (1991).
Rogers relies solely on State v. Bingham, 105 Wn.2d 820, 719 P.2d 109 (1986), to support his proposition that the Stated failed to show premeditation. But Bingham is distinguishable. The Bingham court held that manual strangulation alone is insufficient evidence to support a finding of premeditation where no evidence was presented of deliberation or reflection before or during the strangulation. Bingham, 105 Wn.2d at 827-28.
Here, the State presented sufficient evidence that Rogers reflected and deliberated on the intent to take Jackson's life. First, the altercation between Rogers and Jackson started on the balcony and moved into the apartment. Second, Rogers shot Jackson three times, each separate in time and location. After shooting Johnson on the balcony, Rogers shot at Jackson, hitting him in the chest. Jackson then fled the balcony and Rogers followed, walking swiftly across the living room and shooting him in the back of the shoulder. Finally, Rogers caught up to Jackson at the front door and shot him point-blank in the back of his head. When Rogers issued that final shot, Jackson was crouching behind Caulder; Rogers had to reach over Caulder's shoulder to kill Jackson by shooting him in the head. This evidence shows that Rogers had reflected on killing Jackson for more than a mere moment. See Allen, 159 Wn.2d at 8. This pursuit, shooting Jackson three times at three different locations, and executing the final killing shot of the wounded Jackson from an exaggerated position in the part of the body to cause death shows more than intent, it shows premeditation.
In addition, Rogers brought the gun to the scene and, upon arriving, handed his car keys to his girlfriend in anticipation that there may some conflict. And finally, Rogers had motive to kill Jackson because Jackson witnessed the confrontation on the balcony and watched Rogers kill Johnson. Viewed in the light most favorable to the State, a rational trier of fact could have reasonably found Rogers guilty of first degree premeditated murder. See Allen, 159 Wn.2d at 8; Gregory, 158 Wn.2d at 817.
B. Self-Defense
Next, Rogers contends that the State failed to present sufficient evidence to prove that he was not justified in killing Jackson. He maintains that the State failed to meet its burden of proving the absence of self-defense. Again, this argument lacks merit.
A criminal defendant bears the initial burden of providing some evidence of self-defense. State v. Walden, 131 Wn.2d 469, 473, 932 P.2d 1237 (1997). Once the defendant produces some evidence of self-defense, the burden shifts to the State to disprove self-defense beyond a reasonable doubt. Walden, 131 Wn.2d at 473; see State v. Bolar, 118 Wn. App. 490, 509, 78 P.3d 1012 (2003) (citing State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992), for the sufficiency test to disprove self-defense in holding that the State had met its burden), review denied, 151 Wn.2d 1027 (2004)).
Although the jury could have found Rogers's assertion of self-defense credible, it was not required to do so. "Credibility determinations are for the trier of fact and cannot be reviewed on appeal." State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Here, the trial court instructed the jury on self-defense.
Rogers does not challenge the self-defense instructions.
The jury heard testimony that Rogers shot Jackson on the balcony, and as Jackson retreated into the apartment, Rogers followed, shooting at him. It heard testimony that once Jackson reached the door and grabbed Caulder to use as a shield, Rogers reached around Caulder and shot Jackson within 18 inches of his head. Moreover, the jury heard testimony that Rogers fled the scene immediately, discarding his gun and checking into a nearby motel. It also heard that Rogers cut his hair short and shaved his face clean while at the motel. He switched cars and stayed with a series of friends for the next few weeks until the police found him. The jury was free to properly consider circumstantial evidence, such as the act of flight and the later acts as inconsistent with the acts of a person who truly believed he had killed in self-defense. See, e.g., Bolar, 118 Wn. App. at 509.
Conversely, the jury also heard testimony that Rogers felt cornered on the balcony and believed that Jackson carried a gun. He believed Jackson and Johnson were going to rob him and throw him over the balcony. It heard that Rogers feared Jackson was using Caulder as a human shield and may pull a gun to shoot her.
The jury was free to make credibility determinations and draw its conclusions. Camarillo, 115 Wn.2d at 71. Viewing the evidence in the light most favorable to the State, the evidence was sufficient to meet the State's burden of proving the absence of self-defense. See Camarillo, 115 Wn.2d at 71; Gregory, 158 Wn.2d at 817.
II. Impeachment Testimony
Rogers also contends that the trial court erred when it found the officers' conduct was not coercive during his post- Miranda interrogation, thereby allowing the State to use Rogers's custodial statements for impeachment.
It is well settled that illegally-obtained statements are admissible for the purpose of impeachment. See United States v. Havens, 446 U.S. 620, 626-27, 100 S. Ct. 1912, 64 L. Ed. 2d 559 (1980) (holding that illegally obtained evidence, which is inadmissible on the government's direct case as substantive evidence of guilt, is nevertheless admissible for purposes of impeachment); accord State v. Greve, 67 Wn. App. 166, 834 P.2d 656 (1992) (holding that the state constitution does not prohibit the use of suppressed evidence for impeachment because its introduction discourages a defendant from perjuring himself directly, thus furthering the goal of preserving the dignity of the judicial process), review denied, 121 Wn.2d 1005 (1993). In fact, the United States Supreme Court has consistently held that "although statements taken in violation of only the prophylactic Miranda rules may not be used in the prosecution's case in chief, they are admissible to impeach conflicting testimony by the defendant." Michigan v. Harvey, 494 U.S. 344, 350, 110 S. Ct. 1176, 108 L. Ed. 2d 293 (1990). Such statements are admissible because "[i]f a defendant exercises his right to testify on his own behalf, he assumes a reciprocal `obligation to speak truthfully and accurately.'" Harvey, 494 U.S. at 351 (quoting Harris v. New York, 401 U.S. 222, 225, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971)).
The only limitation on this rule is that the statements must be voluntary. A trial court must exclude involuntary or coerced statements for all purposes. Dickerson v. United States, 530 U.S. 428, 434, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000). A statement is coerced if, under the totality of the circumstances, it was obtained after the defendant's will was overborne. State v. Broadaway, 133 Wn.2d 118, 132, 942 P.2d 363 (1997). In making that determination, the trial court may consider the defendant's physical condition, age, mental abilities, physical experience, and police conduct. State v. Saunders, 120 Wn. App. 800, 809, 86 P.3d 232 (2004).
Here, the trial court found that Rogers's statements were voluntary and not coerced. Rogers challenges the trial court's corresponding finding of fact:
4. This Court finds that the officer's conduct while speaking with the defendant did not rise to the level of coercion. The defendant was not intoxicated; the defendant did not appear ill; the defendant did not appear affected by the late hour; officers spoke in a calm tone of voice; officers did not misrepresent the law to the defendant; officers permitted the defendant the opportunity to give his side of the story without interruption; the officers responded to questions posed by the defendant; officers made no promises to the defendant; the defendant had substantial experience with the criminal justice system.
CP at 354-55.
Findings of fact entered by a trial court after a CrR 3.5 hearing are binding on this court if substantial evidence supports them. Broadaway, 133 Wn.2d at 131. Evidence is substantial if it is sufficient to persuade a fair-minded, rational person that the finding is true. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999), overruled on other grounds by Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007)). The record here provides ample support for the challenged finding.
Rogers spoke to the officers for approximately an hour and a half, not an unreasonably long session. Although the officers continued to talk to him after he said, "I got nothing to say," they spoke in a calm, friendly, and non-accusatory manner. 1 RP at 67, 83. Moreover, Rogers was not a credulous novice, he had several run-ins with the judicial system and, in fact, appeared in court at 12, 13, 14, and 19 years old. And it is true that Rogers asked for water during his interview and the officers told him they would provide some at the conclusion of their session. But the session ended shortly thereafter — approximately two pages of text later. This was not an unreasonable amount of time to wait for water.
Lastly, despite Rogers's implied contention that the officers misrepresented the law of self-defense, the record does not support that assertion. Instead, the record shows that Rogers asked about self-defense during his interview because he believed it was not a defense in Washington. The officers explained that self-defense is called justifiable homicide in Washington and it is a legitimate defense.
In short, there is substantial evidence to support the trial court's finding that Rogers's statement was not coerced. Mendez, 137 Wn.2d at 214. The trial court properly allowed the State to use the statement to impeach Rogers on the stand. Haven, 446 U.S. at 626; Broadaway, 133 Wn.2d at 132.
III. Statement of Additional Grounds
Rogers also filed a statement of additional grounds (SAG), making several contentions related to Pierce's testimony during trial. He also contends that he has obtained newly discovered evidence warranting a new trial. Rogers's contentions, however, are based on statements outside of the record. The proper avenue for bringing claims based on evidence outside the record is through a personal restraint petition (PRP), not an appeal. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Accordingly, we decline to reach Rogers' SAG issues on appeal.
RAP 10.10.
We note that Rogers has filed a PRP with this court raising the same issues that he raised in his SAG.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. and VAN DEREN, C.J., concur.