From Casetext: Smarter Legal Research

State v. Klewin

The Court of Appeals of Washington, Division Two
Dec 14, 2004
124 Wn. App. 1037 (Wash. Ct. App. 2004)


No. 30934-3-II

Filed: December 14, 2004 UNPUBLISHED OPINION

Appeal from Superior Court of Pierce County. Docket No: 02-1-05916-5. Judgment or order under review. Date filed: 09/26/2003. Judge signing: Hon. Gary Steiner.

Counsel for Appellant(s), Pattie Mhoon, Attorney at Law, 949 Market St Ste 488, Tacoma, WA 98402-3600.

Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.

Paul Hubert Klewin appeals his convictions for endangerment with a controlled substance and manufacturing methamphetamine. The State concedes that his conviction for endangerment with a controlled substance must be reversed because he was not a parent or person entrusted with physical custody of the child. We agree. But we hold that sufficient evidence supported the conviction for manufacturing methamphetamine. We also hold that the trial court properly denied a motion for mistrial even though a pre-Miranda statement was inadvertently referred to at trial and further, that it was not improper for the trial court to hold a CrR 3.5 hearing mid-trial. We reverse the conviction for endangerment with a controlled substance and affirm the conviction for manufacturing a controlled substance.

Klewin has not appealed his additional conviction of possession of methamphetamine.

On December 23, 2002, community corrections officers (CCOs) Polly Holton, Ly Tran, William Sheppard, and Steven Depoister visited Paul Klewin's residence. Jennifer Shelton answered the door. Shelton and her four-year-old daughter, A.D., lived in the basement of the home. When the CCOs entered the home, they found A.D. in the living room. When they asked for Klewin, Shelton told them he was asleep in the bedroom. The CCOs entered Klewin's bedroom and found him getting out of bed. The CCOs noticed what appeared to be a methamphetamine pipe in the bedroom.

The CCOs brought Klewin into the living room where they found a key to the basement of the home on the entertainment center. They also found a package of lithium batteries and a one-gallon can of camping fuel. A child's drawing had a bowl of white powder and a pile of white powder on it. The pile of white powder was at a height accessible to a young child.

The CCOs searched Klewin's car. In the car, they found Klewin's ID card, a one-gallon can of toluene, and a two-gallon propane tank with a blue corroded valve.

The CCOs called the Tacoma Police Department's clandestine laboratory team to assist them. On arriving, Officer Patrick Stephen read Klewin his Miranda warnings. Klewin told the officer he had two sets of keys to the basement, one that he kept on his person and one that he kept in the house. When the lab team searched Klewin's basement, they found what appeared to be a methamphetamine lab. The lab contained numerous items and tools used in the manufacture of methamphetamine, including coffee filters, aluminum foil, a plastic funnel with a white powder substance on the funnel, a three-gallon plastic bucket, a 32-ounce glass container with a trace amount of liquid inside it, an ice chest with four feet of tubing wrapped around it, and a one-quart glass jar with foil wrapped around it. The police also searched Klewin's bedroom and found a bag of what appeared to be methamphetamine inside an Altoids tin in a jewelry box.

Miranda v. Ariz., 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The State charged Klewin with one count of unlawful manufacturing of a controlled substance, one count of endangerment with a controlled substance, one count of unlawful possession of a controlled substance, and one count of unlawful possession of ammonia with intent to manufacture methamphetamine. During pretrial motions, the State stipulated to not introduce any statements Klewin made through the State's witnesses. Klewin accepted this stipulation, and the court did not hold a CrR 3.5 hearing.

At trial, the State asked CCO Steven Depoister how he knew about the keys to the basement. CCO Depoister responded, `[w]e asked Mr. Klewin several times where the keys were for — there was a padlock on that door or deadbolt, I can't remember. He indicated —.' Report of Proceedings (RP) (Jun. 25, 2003) at 50. At that point, Klewin objected to CCO Depoister's statements because the State had stipulated that none of his statements would be offered. Klewin moved for a mistrial. He argued that because the officers found the methamphetamine lab in the basement, Depoister's statement of what Klewin indicated was a statement of possession of the keys and violated the State's stipulation. The court denied Klewin's motion.

The State requested a CrR 3.5 hearing because Tacoma Police Officer Patrick Stephen obtained the same information regarding the keys from Klewin after Klewin received the Miranda warnings. The court agreed, and over Klewin's objection, held a CrR 3.5 hearing.

After the CrR 3.5 hearing, the court ruled that Officer Stephen could testify about what Klewin told him about the basement keys. Officer Stephen testified that Klewin told him that he had two sets of basement keys, one set that he kept on his person and one set that was kept in his house.

Forensic scientist Tami Kee testified about the process of making methamphetamine through the anhydrous ammonia Birch method. She explained that anhydrous ammonia and toluene are both materials used in the production of methamphetamine. Kee also stated that the two one-quart bags found in Klewin's bedroom tested positive for methamphetamine and a by-product of the alkaline metal anhydrous ammonia. The by-product found in the bags confirmed that the methamphetamine was manufactured using the anhydrous ammonia method. The lab tests indicated the presence of methamphetamine in residue found on the top of a notepad on the computer desk, white powder in the Altoids tin found inside a jewelry box, and in the two plastic baggies of white powder found in a nightstand in the bedroom.

At the close of the State's case, the court dismissed count IV, unlawful possession of ammonia with intent to manufacture methamphetamine, for insufficient evidence. Klewin also moved to dismiss count II, endangerment with a controlled substance, for lack of evidence, but the court denied his motion. Klewin objected to each of the court's instructions to the jury on that count. The court rejected Klewin's proposed defense instructions. The jury found Klewin guilty on the remaining three counts. He now appeals two of those convictions.

I. RCW 9A.42.100 Endangerment with a Controlled Substance

Endangerment with a controlled substance, RCW 9A.42.100, states:

A person is guilty of the crime of endangerment with a controlled substance if the person knowingly or intentionally permits a dependent child or dependent adult to be exposed to, ingest, inhale, or have contact with methamphetamine or ephedrine, pseudoephedrine, or anhydrous ammonia, that are being used in the manufacture of methamphetamine.

RCW 9A.42.100.

Statutory interpretation is a question of law, which we review de novo. W. Telepage, Inc. v. City of Tacoma Dep't of Fin., 140 Wn.2d 599, 607, 998 P.2d 884 (2000) (citing Enter. Leasing, Inc. v. City of Tacoma, 139 Wn.2d 546, 552, 988 P.2d 961 (1999)). We assume that the legislature means exactly what it says, W. Telepage, 140 Wn.2d at 609 (citing State v. McCraw, 127 Wn.2d 281, 288, 898 P.2d 838 (1995) (quoting City of Snohomish v. Joslin, 9 Wn. App. 495, 498, 513 P.2d 293 (1973))), and do not construe plain words. W. Telepage, 140 Wn.2d at 609 (citing McCraw, 127 Wn.2d at 288 (quoting Joslin, 9 Wn. App. at 498)). We do not engage in statutory interpretation of an unambiguous statute. Davis v. State ex rel. Dep't of Licensing, 137 Wn.2d 957, 963, 977 P.2d 554 (1999). Rather, we derive the meaning of an unambiguous statute from the wording of the statute itself. State v. Tili, 139 Wn.2d 107, 115, 985 P.2d 365 (1999). Where a statute can reasonably be interpreted in two or more ways it is ambiguous, but not simply because different interpretations are conceivable. Tili, 139 Wn.2d at 115.

RCW 9A.42.010 defines a `[d]ependent person' as:

[A] person who, because of physical or mental disability, or because of extreme advanced age, is dependent upon another person to provide the basic necessities of life. A resident of a nursing home, as defined in RCW 18.51.010, a resident of an adult family home, as defined in RCW 70.128.010, and a frail elder or vulnerable adult, as defined in RCW 74.34.020(8), is presumed to be a dependent person for purposes of this chapter.

RCW 9A.42.010(4). The statute defines a child as any person under 18 years of age. RCW 9A.42.010(3). The legislative history behind the statute suggests that the legislature only intended for the statute to apply to those responsible for the care of a child exposed to controlled substances. That situation does not exist in the present case.

The State concedes that Klewin is neither a parent nor a person entrusted with the care of or responsible for the care of A.D. During pretrial motions, the State admitted that it had no evidence to show that A.D. was Klewin's dependent. The State concedes, and we agree that this count should be reversed.

Because of the State's concession, we do not address Klewin's vagueness argument; nor do we address whether a person could be convicted of aiding and abetting endangerment with a controlled substance because it was not charged.

II. Insufficient Evidence

Klewin asserts that the State's evidence was insufficient to prove the manufacturing charge, arguing that the State failed to prove his involvement in the manufacturing process. We disagree.

The State must prove every element of the charged crime beyond a reasonable doubt. State v. McCullum, 98 Wn.2d 484, 489, 656 P.2d 1064 (1983). We review a claim of insufficient evidence by drawing all reasonable inferences from the evidence in favor of the State and interpreting the evidence most strongly against the defendant. State v. Joy, 121 Wn.2d 333, 339, 851 P.2d 654 (1993). A claim of insufficient evidence admits the truth of the State's evidence. State v. Barrington, 52 Wn. App. 478, 484, 761 P.2d 632 (1988), review denied, 111 Wn.2d 1033 (1989). We do not have to find proof of the defendant's guilt beyond a reasonable doubt but only that substantial evidence supports the State's case. State v. Fiser, 99 Wn. App. 714, 718, 995 P.2d 107, review denied, 141 Wn.2d 1023 (2000). Circumstantial evidence is as reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).

Klewin argues that the evidence showing his involvement was only that he rented a house where police found elements of the manufacturing process in the basement and that he had keys to the basement. Contrary to Klewin's argument, the evidence showed more involvement.

To prove Klewin manufactured methamphetamine, the State had to show Klewin produced, prepared, propagated, compounded, converted, or processed a controlled substance. RCW 69.50.101(p). The State does not need to produce evidence showing every step involved in methamphetamine production. State v. Zunker, 112 Wn. App. 130, 138-39, 48 P.3d 344 (2002), review denied, 148 Wn.2d 1012 (2003). Instead, evidence of some of the required steps that allow a `reasonable inference' that methamphetamine manufacture could occur is sufficient to support a manufacturing conviction. Zunker, 112 Wn. App. at 139.

Here, the State provided sufficient evidence linking Klewin to the methamphetamine lab. Klewin possessed two sets of keys to the basement. In the car registered to him, police found Klewin's driver's license, a one-gallon can of toluene, and a two-gallon propane tank with tubing extending from the valve. Police found blue corrosion on the valve, which is consistent with the storage of anhydrous ammonia. Both toluene and anhydrous ammonia are materials used in the manufacture of methamphetamine.

Police also found two one-quart bags containing white powder that tested positive for methamphetamine in Klewin's bedroom. The bags tested positive for a by-product of the alkaline metal anhydrous method of methamphetamine manufacture. In Klewin's living room the police recovered a package of lithium batteries and a one-gallon can of camping fuel. These items are also commonly used in the manufacture of methamphetamine. The police also found white powder in a bowl and on a child's drawing. Both items tested positive for methamphetamine.

Klewin relies on United States v. Estrada-Macias, 218 F.3d 1064 (9th Cir. 2000), for his argument that there was insufficient evidence to show he manufactured methamphetamine. Estrada-Macias is distinguishable from the present case.

The evidence linking Estrada-Macias to a conspiracy to manufacture methamphetamine was minimal. It included Estrada-Macias's appearance with other conspirators, his admission to living in a trailer where Drug Enforcement Administration agents found methamphetamine tools and materials. Estrada-Macias, 218 F.3d at 1065. The record contained no evidence that Estrada-Macias participated in the conspiracy. Estrada-Macias, 218 F.3d at 1066-67. No one testified to his involvement. Estrada-Macias, 218 F.3d at 1067. There was no evidence he ever possessed the ingredients or the finished methamphetamine. Estrada-Macias, 218 F.3d at 1067. Nor was he present at the deliveries of shipments of pills. Estrada-Macias, 218 F.3d at 1067.

Unlike in Estrada-Macias, the evidence here supports Klewin's conviction for manufacture of methamphetamine. Klewin lived in a house with a methamphetamine lab in the basement. Klewin possessed keys to the basement. Products used to manufacture methamphetamine were in Klewin's car and living room. Methamphetamine was in his bedroom and living room. Drawing all reasonable inferences in favor of the State, there was sufficient evidence to convict Klewin of unlawful manufacture of methamphetamine.

III. Violation of Stipulated Agreement

Klewin next asserts that the State violated its stipulation not to offer any of his statements through its witnesses and because of the State's violation, he was prejudiced and the court erred by not suppressing statements he made after police gave him the Miranda warnings. While Klewin is correct that the State violated the stipulation, we hold that violation did not affect the trial outcome.

A. Pre-Miranda Statement

Klewin contends the State unduly prejudiced him when it violated its stipulation that none of Klewin's statements would be introduced at trial. At the start of Klewin's trial, the State stipulated it would not offer any of Klewin's statements through its witnesses. Because of the State's stipulation, the court did not hold a CrR 3.5 hearing before trial. During the direct examination of CCO Depoister, the State asked him if anyone had directed him to a key to the basement. CCO Depoister responded, `[w]e asked Mr. Klewin several times where the keys were for — there was a padlock on that door or deadbolt, I can't remember. He indicated —.' RP at 50. Klewin immediately objected. He argued that a CrR 3.5 hearing was not held because of the State's stipulation. Klewin asserted that indicating where the keys were was critical evidence the State offered to show Klewin's knowledge of the methamphetamine lab.

The court denied Klewin's motion for a mistrial and granted the State's request to hold a CrR 3.5 hearing. Klewin argues that it was inappropriate to hold a CrR 3.5 hearing at that stage because the inadmissible statement was already before the jury.

A trial court should only grant a mistrial where the defendant `has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly.' State v. Johnson, 124 Wn.2d 57, 76, 873 P.2d 514 (1994). To be deemed prejudicial, an error must have affected the trial outcome. Johnson, 124 Wn.2d at 76. Here, the State's violation of its stipulation was not prejudicial.

Klewin takes issue with CCO Depoister's use of `[h]e indicated' but since the CCO did not finish his sentence, there is no way for the jury to know what CCO Depoister might have said. The language could have been followed with a statement explaining that Klewin did not know the location of the keys to the basement. The statement was inadvertent, not intentional. Further, on cross-examination, defense counsel pursued this area of questioning and statements made in an effort to impeach the CCO. Under the facts of the case, the `[h]e indicated' language did not unduly prejudice Klewin's case.

B. Post-Miranda Statements

Klewin contends the trial court should have suppressed his post-Miranda statements because they were the fruits of Klewin's involuntary statements made to CCO Depoister without Miranda warnings.

Klewin argues that Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985), compelled suppression of his post-Miranda statements. But Klewin misinterprets Elstad.

In Elstad, police asked the defendant if he knew why the police were at his house and he responded that he did not. Elstad, 470 U.S. at 301. The police then told Elstad that they suspected he had some involvement in a recent burglary. Elstad, 470 U.S. at 301. Elstad volunteered that he was at the burglary. Elstad, 470 U.S. at 301. The police escorted Elstad to the police station and properly gave the Miranda warnings to him. Elstad, 470 U.S. at 301. He acknowledged these rights and warnings and waived them. Elstad, 470 U.S. at 301. The police typed up Elstad's statement, he reviewed it, the police read it back to him for correction, Elstad initialed it, and Elstad and the two officers signed it. Elstad, 470 U.S. at 301. At trial, Elstad moved to suppress his oral statement and signed confession, arguing that his oral statement tainted his confession because the signed confession was a fruit of the poisonous tree. Elstad, 470 U.S. at 302.

The Supreme Court disagreed, holding:

If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself. It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.

Elstad, 470 U.S. at 309.

The Court further stated:

The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. The fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative. We find that the dictates of Miranda and the goals of the Fifth Amendment proscription against use of compelled testimony are fully satisfied in the circumstances of this case by barring use of the unwarned statement in the case in chief. No further purpose is served by imputing `taint' to subsequent statements obtained pursuant to a voluntary and knowing waiver. We hold today that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.

Elstad, 470 U.S. at 318.

Applying Elstad here, the court did not err by failing to suppress Klewin's post-Miranda statements. First, Klewin does not argue that his statements were coerced or involuntary. Second, his statement to CCO Depoister that he had two sets of basements keys was the same statement he made to Officer Stephen after Miranda warnings. Under Elstad, there was no reason to suppress Klewin's post-Miranda statements.

Klewin further contends that holding a CrR 3.5 hearing after Depoister's statement does not remedy the problem. But Klewin offers no authority stating that a CrR 3.5 hearing must be held before trial. It plainly is not improper to hold a CrR 3.5 hearing when the need arises. The court held the CrR 3.5 hearing to determine the admissibility of Klewin's statements after he had received Miranda warnings. The State did not deliberately violate its stipulation and Klewin suffered no prejudice as a result of the CrR 3.5 hearing.

We reverse the endangerment with a controlled substance conviction and affirm as to manufacturing a controlled substance.

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.

ARMSTRONG, J. and VAN DEREN, J., Concur.

Summaries of

State v. Klewin

The Court of Appeals of Washington, Division Two
Dec 14, 2004
124 Wn. App. 1037 (Wash. Ct. App. 2004)
Case details for

State v. Klewin

Case Details

Full title:STATE OF WASHINGTON, Respondent, v. PAUL HUBERT KLEWIN, Appellant

Court:The Court of Appeals of Washington, Division Two

Date published: Dec 14, 2004


124 Wn. App. 1037 (Wash. Ct. App. 2004)
124 Wash. App. 1037