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The Court of Appeals of Washington, Division OneJun 30, 2003
117 Wn. App. 1038 (Wash. Ct. App. 2003)

No. 49837-1-I.

Filed: June 30, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of King County Docket No: 00-1-07190-2 Judgment or order under review Date filed: 12/18/2001.

Counsel for Appellant(s), Sharon Jean Blackford, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.

Counsel for Respondent(s), Lee Davis Yates, Pros Atty Offc/Appellate Unit, 700 5th Ave Ste 1850, Seattle, WA 98104.

Leonard Grillo and his companion, Robert Davis, assaulted Toby Hoff with such force that Hoff was left in a permanent semi-vegetative state. Grillo was convicted of assault in the first degree.

The trial court admitted Grillo's statements to police, but excluded Davis's statements and his Alford plea. We find no error in these rulings. Nor did the court err in imposing an exceptional sentence based upon the deliberate cruelty of the assault and the egregious nature of the injuries it caused. We therefore affirm the conviction and sentence.

North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed. 162 (1970).


Leonard Grillo and Robert Davis, both age 19, went in search of someone to buy beer for them. As they walked through Volunteer Park, Toby Hoff, who was in Seattle on a business trip, pulled up beside them in his rental car. Hoff agreed to take Grillo and Davis to buy beer. The three then took the beer to the more secluded Louisa Boren Park. They later made another trip to buy beer.

Shortly before 3 a.m., a couple parked nearby heard cries for help and called 911. The first officer to arrive at the scene heard expletives and the sounds of an ongoing assault. Police discovered Hoff at the bottom of a ravine, wearing only a t-shirt and bleeding profusely from the head. A broken beer bottle was found nearby. Grillo was lying in the bushes 20 or 30 yards away. Grillo initially appeared to be confused as to what had happened to him. He had a cut on his left hand, had obviously been drinking, and was agitated and verbally aggressive. He told police conflicting stories — that someone with a beer bottle had attacked him, and that a "Latino guy" had assaulted both him and Hoff. The investigating officer decided Grillo was a suspect and read him his Miranda rights. Grillo waived his rights and continued to speak with police. Hoff's wallet, glasses, and car keys were found in Grillo's pockets. Hoff's blood was found on Grillo's shoes and pants, in patterns indicating both contact and impact spatter. Impact spatter consists of stains from force applied to a blood source. The spatter on Grillo's clothing was consistent with kicking a person in the head as he lay on the ground.

When Davis was arrested a week after the attack, he had numerous scratches consistent with having run through bushes, and an injury to his right forearm. Davis's fingerprints and blood were found on a piece of glass from the broken bottle near the victim, and his prints were also found on an item in a shopping bag in Hoff's rental car. Davis told police he had had a sexual encounter with Hoff and then hit him a couple times to escape. Davis blamed Hoff's injuries on Grillo and a man named Jesse Hidalgo. Shortly before trial, Davis entered an Alford plea to assault in the first degree. In his plea statement, he denied any knowledge of the assault, claiming he had not been present.

At trial, Grillo testified he had left Hoff and Davis to urinate, and came back to find the two with their pants down. He claimed that Davis alone assaulted Hoff. The jury found him guilty of assault in the first degree.


Trial Evidence Grillo sought to admit portions of Davis's statement to police, redacted to exclude any mention of Grillo and other irrelevant information, as declarations against interest under ER 804(b)(3). Davis's statements described meeting Hoff, going with him to buy beer and then to the park, and having an initially consensual sexual encounter. Davis reported he then changed his mind about the sex and attempted to escape, hitting Hoff a couple of times to get away from him. He claimed that another man, Jesse Hidalgo, had hit and kicked Hoff. Grillo contends that the trial court employed an improper "whole statement" approach to determining whether to admit the evidence. In State v. Roberts, 142 Wn.2d 471, 494, 14 P.3d 717 (2000), the Supreme Court rejected the whole statement approach and held that self-inculpatory portions of a hearsay narrative must be separated from other parts of the statement and evaluated as to their reliability. The reliability factors are as follows:

ER 804(b)(3) provides:

(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness. . . . . (3) Statement Against Interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true. In a criminal case, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

1. Was there an apparent motive for the declarant to lie?

2. What was the declarant's general character?

3. Did more than one witness hear declarant's statement?

4. Was the statement made spontaneously?

5. Did the timing of the statements and the relationship between declarant and witness suggest trustworthiness?

6. Does the statement contain an express assertion of past facts?

7. Did the declarant have personal knowledge of the identity and role of the crime's other participants?

8. Was the declarant's statement based upon faulty recollection?

9. Was the statement made under circumstances that provide reason to believe the declarant misrepresented defendant's involvement in the crime?

Roberts, 142 Wn.2d at 497-98 (citing State v. Anderson, 107 Wn.2d 745, 733 P.2d 517 (1987)). The trial judge has the discretion to exclude statements that are unreliable. Roberts, 142 Wn.2d at 496. The premise of the exception to the hearsay rule for declarations against penal interest is the presumption that a person will not make an incriminating statement unless it is true. Roberts, 142 Wn.2d at 495. The reliability factors test this presumption.

After an extensive hearing, the court ruled that none of the statements Grillo sought to admit were reliable. Grillo contends the court misapplied the Roberts reliability analysis by failing to separately consider inculpatory portions instead of the whole statement. We disagree. The court concluded that portions of Davis's redacted statement were sufficiently inculpatory to constitute declarations against interest because they placed Davis at the scene of the crime with Hoff, and Davis admitted he hit Hoff. The court then evaluated the reliability of those declarations. The court noted that Davis had a motive to shift blame; that his statements were not spontaneous; and that the timing and circumstances of the statements and relationship between the declarant and witness did not suggest trustworthiness, because it was a week after the crime, Davis was under custodial interrogation and was aware of the charges against him, and he knew that Grillo had been arrested.

The State contends, and we are inclined to agree, that the court could have ruled the statements not self-incriminatory as contemplated by the rule, because Davis acknowledged only a minor scuffle in self-defense.

The court further found the reliability of Davis's statement to police "devastatingly undercut" by his later Alford plea statement denying any involvement: "I did not assault Toby Hoff. I have no personal knowledge who assaulted Toby Hoff, because I was not present." Clerk's Papers at 100. The court concluded that cross-examination was critical to testing the reliability of Davis's statements, and excluded them. Grillo appears to believe that Roberts requires a trial judge to enunciate separately, for each portion of a proffered statement, its consideration of every reliability factor. We find nothing in Roberts to so indicate, and indeed, such an approach would be redundant given the nature of the factors, most of which relate to the timing and circumstances of the statement. See Roberts, 142 Wn.2d at 498 (finding statement was made within 48 hours of arrest and heard by two witnesses, defendant had motive to shift blame, but not to implicate himself for first degree felony-murder). A witness' general character, the timing and spontaneity of the statement, the relationship between declarant and witness — these factors will not change during the course of a single interrogation, and the judge is not required to reiterate what is obvious. The trial court did not err in its Roberts analysis. Grillo also contends the trial court should have looked to the forensic evidence as an overriding indication of the reliability of portions of Davis's statements. But, as the State correctly points out, the particularized guarantees of trustworthiness needed to justify admission of hearsay must be found in the circumstances surrounding the statements themselves. Idaho v. Wright, 497 U.S. 805, 819-20, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990).

Report of Proceedings (Sept. 6, 2001) at 449.

In his reply brief, Grillo contends that Wright is distinguishable because the question there did not involve the admission of statements under a firmly rooted hearsay exception. In Wright, however, the Supreme Court analyzed the statements at issue in light of the general purposes of the hearsay rule, framing the test of reliability in terms of whether "the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility." Wright, 497 U.S. at 820.

In any event, the forensic evidence of Davis's fingerprints and blood on a broken beer bottle did not impart any reassurance of reliability to Davis's inculpatory statement that he only hit Hoff a couple of times while trying to get away. Nor was there any evidence that a fourth person was present at the scene. The trial court did not abuse its discretion in refusing to admit Davis' statements under ER 804(b)(3). Grillo also argues the court erred in excluding evidence of the fact that Davis had pled guilty to assault, contending the plea provided conclusive proof of Davis's guilt of the crime. He also claims the plea would have served to corroborate Grillo's trial testimony that only Davis hit Hoff. As far as we can tell from the record, when the trial court excluded Davis's statements as unreliable, Grillo sought to introduce the fact that Davis had pleaded guilty to assaulting Hoff. The court deferred ruling, asking for briefing on the admissibility of an Alford plea. We find no point in the record where the court ruled on the matter, but eventually Grillo's counsel appears to have believed the court had excluded the evidence. Assuming that is what happened, the State correctly argued, below and on appeal, that the evidence was irrelevant.

For this proposition, he cites In re: Discipline of McLendon, 120 Wn.2d 761, 845 P.2d 1006 (1993). This case does not stand for this proposition, but rather involved a lawyer disciplinary action, and the court discussed RLD 4.9, which so provides. The court then was faced with an Alford plea and noted that due process prevents such a plea from being the basis for collateral estoppel in a subsequent action. McClendon, 120 Wn.2d at 770.

First, Grillo was charged both as a principal, and as Davis's accomplice. Proof of Davis's guilt was therefore not helpful to Grillo unless it served to exclude Grillo's guilt. It did not. Second, in an Alford plea, a defendant admits no wrongdoing, but agrees to plead guilty in order to take advantage of the State's offer, because the weight of the State's evidence would likely result in conviction. North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed. 162 (1970). While such a plea may be legal proof of guilt of the crime, Grillo sought to use the plea as factual proof of guilt. Davis's plea, including as it did an express denial of guilt, offered no such evidence. Further, admission of the plea would have required some explanation of the nature of an Alford plea, an issue unlikely to be helpful to the jury's deliberations. The trial court did not abuse its discretion in refusing to admit Davis's plea.

Finally, even were there error in excluding Davis's statements and/or his plea, any such error was harmless. Grillo argues the court's ruling violated his constitutional right to compulsory process to compel the attendance of witnesses, implying a constitutional harmless error standard applies. See State v. Maupin, 128 Wn.2d 918, 924, 913 P.2d 808 (1996).

The right to compulsory process, however, is subject to established rules of evidence. State v. Finch, 137 Wn.2d 792, 825, 975 P.2d 967 (1999). Error in the admission of evidence is "`not prejudicial unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred.'" State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997) (quoting State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981)). Here, the jury was informed that Davis faced the same charge. They heard evidence placing him at the scene, including the fact that his fingerprints and blood were found on the only broken bottle at the scene, and that fragments of bottle glass were found on Hoff's bloody cap. Under these circumstances, admission of Davis's contradictory statements and Alford plea would not have materially affected the outcome of the trial. Grillo contends he did not intelligently and voluntarily waive his Miranda rights because he was too intoxicated to do so. In order to be voluntary, a confession must be made after the defendant is fully advised of his rights and knowingly and intelligently waives them. State v. Davis, 73 Wn.2d 271, 282, 438 P.2d 185 (1968). Voluntariness is determined by examining the totality of circumstances under which a confession was made. State v. Rupe, 101 Wn.2d 664, 679, 683 P.2d 571 (1984). Factors a court may consider include the defendant's physical condition, age, experience, mental abilities, and the conduct of the police. Rupe, 100 Wn.2d at 679.

A trial judge's determination of voluntariness will not be disturbed on appeal if the record contains substantial evidence that the confession was voluntary. State v. Ng, 110 Wn.2d 32, 37, 750 P.2d 632 (1988).

There was ample such evidence here. The police officer who read Grillo his rights and the fire department lieutenant who treated his injuries at the scene both testified Grillo obeyed their commands and answered their questions in a responsive and appropriate manner. When the officer told Grillo his questions were in connection with the investigation of an assault, Grillo clearly responded that he understood his rights and agreed to talk. Grillo was able to recall past events, and his stories of what happened, while contradictory, contained internal consistencies.

The trial court found by a preponderance of the evidence that Grillo's level of intoxication did not interfere with his ability to knowingly, intelligently, and voluntarily waive his rights. Substantial evidence supports this finding.

Exceptional Sentence

The head injuries Hoff received as a result of the assault left him in a permanent semi-vegetative state. After months of rehabilitation, Hoff is able to breathe on his own, but he is otherwise entirely unresponsive and has little chance of improvement. According to expert testimony at trial, these injuries could not be imparted by a beer bottle or a simple punch, and were likely the result of being kicked in the head while unconscious.

The trial court imposed an exceptional sentence on two grounds:

Grillo's standard range sentence was 93 to 123 months. The trial court imposed 186 months.

deliberate cruelty, and infliction of egregious injury.

A reviewing court will not reverse an exceptional sentence under RCW 9.94A.535 unless the sentencing court's reason for imposing the exceptional sentence is clearly erroneous or its stated reason does not justify an exceptional sentence as a matter of law. State v. Jeannotte, 133 Wn.2d 847, 856, 947 P.2d 1192 (1997). A stated reason justifying an exceptional sentence is clearly erroneous if it is not supported by substantial evidence in the record. "`Substantial evidence is evidence sufficient to persuade a fair-minded person of the truth of the declared premise.'" State v. Jacobson, 92 Wn. App. 958, 964, 965 P.2d 1140 (1998) (quoting State v. Graffius, 74 Wn. App. 23, 29, 871 P.2d 1115 (1994)).

A trial court may impose an exceptional sentence if "the defendant's conduct during the commission of the current offense manifested deliberate cruelty to the victim." RCW 9.94A.535(2)(a). Deliberate cruelty is gratuitous violence or other conduct that inflicts physical, psychological, or emotional pain as an end in itself. State v. Scott, 72 Wn. App. 207, 214, 866 P.2d 1258 (1993), aff'd, 126 Wn.2d 388 (1995). Grillo contends there was no evidence to support the following finding:

[Defendants] targeted an individual who would agree to go to an isolated location where the ability to seek help, if one were to be assaulted, would be significantly lessened. The defendants took the victim to a park, into a steep ravine that was difficult to access, even by police officers, and isolated.

Findings of Fact and Conclusions of Law For Ex. Sentence (Feb. 27, 2002) at 2-3.

Even assuming this finding is based upon inference or speculation about motives and planning, its purpose was to explain the court's view that Hoff did nothing to provoke the assault. The evidence fully supports the court's other findings — that Hoff suffered a particularly vicious assault, of a type often inflicted when the victim is unconscious and completely vulnerable, which caused a unique and devastating injury — support the conclusion that Grillo's conduct was gratuitously violent and caused egregious injury. The trial court did not err in relying upon this aggravating circumstance in imposing the exceptional sentence. Grillo also challenges the use of the nonstatutory factor of infliction of an injury that was "significantly more egregious than normal," contending it is unconstitutionally vague and therefore a violation of due process. "[F]acts more egregious than typical of the offense is a legally adequate aggravating factor." State v. Perez, 69 Wn. App. 133, 139, 847 P.2d 532 (1993). We have already rejected the constitutional challenge Grillo makes, and we decline to revisit these rulings here. See Jacobson, 92 Wn. App. at 968-71. The trial court did not err in imposing an exceptional sentence.

We find no error, and affirm the trial court in all respects.

KENNEDY and AGID, JJ., concur.