Opinion
No. 33286-8-II, Consolidated with: No. 33296-5-II
Filed: October 31, 2006 UNPUBLISHED OPINION
Appeal from Kitsap Superior Court. Docket No: 04-1-01951-4. Judgment or order under review. Date filed: 05/13/2005. Judge signing: Honorable Sally F Olsen.
Counsel for Appellant(s), Peter B. Tiller, The Tiller Law Firm, Po Box 58, Centralia, WA, 98531-0058.
Counsel for Respondent(s), Jeremy Aaron Morris, Kitsap County Prosecutor's Office, 614 Division St, Port Orchard, WA, 98366-4614.
Henry Jordaneque Brady appeals his convictions for unlawful delivery and unlawful possession of a controlled substance. We affirm.
The State charged Brady with one count of unlawful delivery of a controlled substance — cocaine — with a school zone enhancement and one count of unlawful possession of a controlled substance — cocaine — after two controlled buy-bust operations.
The first incident, which took place on September 10, 2004, involved a buy-bust that targeted Cynthia Taylor. The police wanted to force Taylor to work as a confidential informant against her supplier. Brady was a passenger in Taylor's car when she sold methamphetamine to a confidential informant. After the transaction, Officer William Endicott pulled Taylor's car over in a "felony traffic stop." 1 Report of Proceedings (RP) (March 21 2005) at 107. During the stop, he saw Brady lean over the center console from the passenger seat toward the driver's seat. Detective Aaron Elton also saw Brady lean over. The officers found cocaine concealed near the base of the center console. The two officers took Brady into custody, and Detective Elton read him his Miranda rights. Brady verbally acknowledged that he understood his rights.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
After another detective, Spencer Berntsen, talked to Brady about being a confidential informant, Brady confessed that the cocaine in the car was his. Detective Berntsen then directed an officer to release Brady, and Brady promised to contact Detective Berntsen. Detective Berntsen explained that he released Brady because he was not going to arrest Taylor and did not want to make it seem like Taylor was getting favors from the police.
Though Detective Berntsen denied it, Brady claimed that the detective threatened him with a long prison sentence. According to Brady, he admitted to possessing the crack cocaine only after Detective Berntsen told him he was either going to jail or he could admit to it and they would let him go. Brady claimed he felt trapped into the confession. At trial, he denied ever seeing cocaine on September 10.
The second incident took place two months later on November 10, 2004, at the apartment where Brady was living with his girlfriend. This apartment was 317 feet from a school. A confidential informant, Carmen Holland, called Brady to set up a drug buy. After she scheduled the buy, Detective Randy Plumb searched Holland and her van. Detective Plum followed her to the apartment, although he did not see her actually enter it. Holland testified that she bought the drugs from Brady and that she gave them to the police.
The trial court consolidated the charges arising from these two incidents. On the same day, Brady's defense attorney moved to be dismissed from the case because she had personally represented Holland on three impeachable crimes of dishonesty. The trial court noted that Brady's counsel had not represented Holland for some time and denied the motion because Brady failed to show any connection between Holland's convictions and the charges against Brady.
Just before trial, Brady moved to suppress his confession, arguing that it had been coerced. The trial court found that Brady had heard and acknowledged his constitutional rights. In addition, the court found that Detective Berntsen told Brady that he needed to be truthful if he wanted to be a confidential informant but that Detective Berntsen did not promise to let Brady go before his confession. On the basis of these findings, the court found Brady's free will had not been overborne and that the statement was admissible.
The jury convicted Brady on both counts and found the school zone enhancement applicable.
I. Confession
Brady argues that by forcing him to choose between going to jail and admitting that the cocaine was his in order to go free, Detective Berntsen overbore his will and that his admission was therefore involuntary. The State contends that Detective Berntsen made no specific promises but offered Brady a choice that Brady voluntarily and knowingly made. We agree with the State.
We review a trial court's denial of a suppression motion in two stages. First, we review the trial court's findings of fact for substantial evidence. State v. Broadaway, 133 Wn.2d 118, 130, 942 P.2d 363 (1997). Substantial evidence supports a finding where there is a sufficient quantity of evidence to persuade a rational person of the truth of the finding. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Second, we determine whether the findings of fact support the trial court's conclusions of law, an issue we review de novo. State v. Vickers, 148 Wn.2d 91, 116, 59 P.3d 58 (2002); State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999).
Turning first to the findings of fact, Brady assigns error to the trial court's findings that Brady received his Miranda warnings and that he voluntarily spoke to officers. Here, the officers' testimony provides substantial evidence to support the trial court's finding. Detective Elton testified that he gave Brady his Miranda warnings and that Brady acknowledged that he understood them. Detective Berntsen testified that Brady asked to speak to him and that the conversation was casual even though Brady was in custody. These facts are more than sufficient to support the findings that Brady has been advised of his rights and still willingly spoke to the police.
Brady next assigns error to the trial court's findings that Brady (1) confessed to possessing the crack cocaine; (2) expressed a desire to work as a confidential informant; and (3) that Detective Berntsen did not agree to allow Brady to go free before Brady confessed. Once again, Detective Berntsen's testimony is sufficient to support the trial court's finding. Detective Berntsen reported that Brady admitted the cocaine was his. And on cross-examination, Detective Berntsen denied that he "wanted [Brady] to admit a crime before [he] would let him go." 1 RP at 82. Detective Berntsen explained that he only asked Brady to tell the truth. These facts support the trial court's findings that Brady voluntarily confessed and that Detective Berntsen did not promise to let Brady go before he confessed.
Although Brady testified that Detective Berntsen did make such a promise, the trial court assesses the witnesses' credibility. Hill, 123 Wn.2d at 646. And here, the trial court believed the detective's testimony instead of Brady's. We do not review a trial court's credibility determination. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). Therefore, we uphold the trial court's finding.
Turning now to the trial court's legal conclusion that Brady's statement was voluntary, the State has the burden of proving, by a preponderance of the evidence, that Brady's statement was voluntary. State v. Braun, 82 Wn.2d 157, 162, 509 P.2d 742 (1973). Our inquiry is whether, under the totality of the circumstances, Brady's will was overborne such that his confession was involuntary. Broadaway, 133 Wn.2d at 132. We consider factors like the defendant's physical condition, age, mental abilities, experience, and police conduct. State v. Aten, 130 Wn.2d 640, 664, 927 P.2d 210 (1996). We must consider any promises or misrepresentations interrogating officers made and determine if there is a causal relationship between the promise and the confession such that Brady's confession was not a free act. Broadaway, 133 Wn.2d at 132.
Our case law indicates that a mere promise of leniency, without more, is not enough to invalidate a confession. State v. Riley, 19 Wn. App. 289, 297-98, 576 P.2d 1311, review denied, 90 Wn.2d 1013 (1978). In Riley, the officers told the defendant that he would get a reduced charge if he cooperated. Riley, 19 Wn. App. at 292-93. The court reasoned that Riley had reasonable intelligence and education, was adequately warned, and was not intoxicated or tired. Riley, 19 Wn. App. at 294. The court then concluded that a promise of leniency alone was not enough to overbear a defendant's will. Riley, 19 Wn. App. at 297-98.
Here, Brady's argument is significantly undercut by the trial court's finding that Detective Berntsen did not promise to let Brady go if he confessed. According to Detective Berntsen, he told Brady about being a confidential informant, told Brady he had to tell the truth if he wanted to be a confidential informant, and then asked Brady whether the drugs were his. The detective never promised to do anything for Brady; Brady made the free choice to confess in an attempt to become a confidential informant. His confession was, therefore, admissible.
II. Withdrawal of Counsel
Brady next argues that the trial court erred when it denied his attorney's motion to withdraw because of a conflict of interest under the Rules of Professional Conflict (RPC). The State argues that Brady did not produce any evidence that there was an actual conflict of interest and that even if there was, Brady suffered no prejudice. We agree with the State.
We note that Amy Muth initially represented Brady and that she personally represented Holland. RP (March 7, 2005) at 6. John Cross, from Muth's law firm, represented Brady at trial. RP (March 9, 2005) at 10. While Cross did not personally represent Holland before, Muth's conflict is imputed to him under RPC 1.10(a). Therefore, our analysis is not altered.
Brady claims that his attorney had a conflict of interest under RPC 1.9. That rule describes two kinds of conflict. First, there is a conflict where an attorney represents a client whose interests are materially adverse to a former client in the same or substantially related matter in which the attorney represented the former client. RPC 1.9(a). Second, there is a conflict where an attorney uses confidences or secrets related to the former client's representation to the former client's disadvantage. RPC 1.9(b)
We review whether an attorney's representation violates the RPCs and has a conflict of interest de novo. State v. Hunsaker, 74 Wn. App. 38, 42, 873 P.2d 540 (1994). When the matter is not substantially related and RPC 1.9(b) is involved, we do not presume that the former client's confidential information was disclosed. Hunsaker, 74 Wn. App. at 47. Instead, the defendant must provide proof that a former client disclosed material confidential information requiring disqualification. Hunsaker, 74 Wn. App. at 47.
Applying this test to the situation here, Brady does not argue that his attorney's previous representation of Holland involved the same or substantially related matter. Thus, RPC 1.9(a) is inapplicable. Holland, therefore, has to provide some evidence that RPC 1.9(b) prohibited his attorney from using confidential information disclosed during Holland's representation.
But the record does not disclose whether Brady's attorney had any such confidences. The trial court offered to hold an in-camera hearing without the State present to determine if there was a conflict. But Brady and his attorney did not ask to present any evidence of a conflict, and the trial court finally determined that "[t]here's just not a factual basis there for any kind of confidences or secrets that would adversely affect Ms. Holland." RP (March 7, 2005) at 8-9. We agree; the trial court did not err.
Moreover, there is no indication that Brady's attorney was materially limited in representing Brady. As the State points out in its brief, that Holland had been convicted of three crimes of dishonesty was a matter of public record. In fact, the State disclosed Holland's complete criminal record, including six crimes of dishonesty. And even if Brady's attorney had additional information about the three charges in which she had represented Holland, the law allows Brady to introduce only the fact of the conviction, the type of crime, and the punishment imposed. State v. Coe, 101 Wn.2d 772, 776, 684 P.2d 668 (1984). And because that material is all public record, Brady's attorney did not violate RPC 1.9(b) by using it to impeach Holland in Brady's trial. See State v. Ramos, 83 Wn. App. 622, 632, 922 P.2d 193 (1996) (reasoning that the RPCs are not violated when an attorney uses public information to impeach a former client).
In the absence of any evidence that Brady's attorney had some confidential information that she could have used to Holland's disadvantage, the trial court did not abuse its discretion when it denied defense counsel's motion to withdraw. Upon learning that Brady's attorney had a potential conflict, the trial court made a reasonable inquiry into the conflict. Finding that the only impeachable material was a matter of public record, the trial court was within its discretion to deny the motion. There was no error.
III. Joinder
In his Statement of Additional Grounds, Brady argues that the trial court erred in allowing the State to join his two drug charges. We hold that trial court did not abuse its discretion in denying Brady's motion to sever.
RAP 10.10.
We review a trial court's denial of a motion to sever counts for manifest abuse of discretion. State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995). Brady has the burden to establish a manifest prejudice that outweighs our concern for judicial economy. State v. Bythrow, 114 Wn.2d 713, 718, 790 P.2d 154 (1990). Brady may meet that burden by showing that he was embarrassed in the presentation of separate defenses or if a joint trial invited the jury to cumulate evidence to find guilt or infer a criminal disposition. Russell, 125 Wn.2d at 62-63.
In determining whether the defendant met his burden, the trial court must consider (1) the strength of the State's evidence on each count; (2) the clarity of the defense as to each count; (3) the court's instructions to the jury to consider each count separately; and (4) the admissibility of evidence of the other charges if not joined. Russell, 125 Wn.2d at 63. Then, any residual prejudice is weighed against the need for judicial economy. Russell, 125 Wn.2d at 63.
Here, Brady's defense to both charges was the same, denial, so joinder did not prejudice him. See Russell, 125 Wn.2d at 64-65 (noting that when the accused defenses are identical on each charge, there is very little prejudice). And the trial court correctly instructed the jury to consider each charge separately. Therefore, Brady's argument rests on cross-admissibility concerns and the relative strength of the State's evidence on the separate counts.
Without joining the counts, the evidence of the possession charge would not have been admissible in the delivery charge and vice-versa. Nonetheless, our Supreme Court has held that "the fact that separate counts may not be cross admissible does not necessarily represent a sufficient ground as a matter of law." Bythrow, 114 Wn.2d at 720. This is especially so where the issues are relatively simple and the trial lasts only a couple of days. Bythrow, 114 Wn.2d at 721.
That is the case in Brady's trial. The issues in his two charges were straightforward and simple. He denied the drugs were his, and he denied he sold drugs to Holland. And the trial took only a couple of days. Without more, this factor does not justify severance.
Turning to the relative strength of the State's evidence on the two counts, the resolution is not in Brady's favor. Our Supreme Court has held that when the State's evidence is strong on both counts, the jury will not be tempted to base its finding of guilt on the strength of evidence of the other count. Bythrow, 114 Wn.2d at 721-22.
The State's evidence in this case was strong on both counts. On the possession charge, Brady confessed and officers saw him leaning over the place where they found the crack cocaine. The State's evidence on the delivery case was also strong. Holland, supervised by officers, conducted a controlled buy at the apartment complex where Brady was living. Holland testified that Brady sold her the drugs. She was searched before and after the buy and was out of the officer's sight for only two minutes, giving rise to a strong inference the drugs came from Brady and not some other source.
And the prejudice from joining the two counts was relatively minor. The two incidents were separated by two months and involved entirely different parties. Moreover, the jury would have had to make a significant leap to infer that Brady was a drug dealer based on his possession of a relatively small quantity two months before. Given the trial court's explicit instruction to consider the charges separately, the prejudice to Brady was minimal and that the trial court did not abuse its discretion by finding that judicial economy concerns were sufficient to warrant a joint trial.
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.
ARMSTRONG, J., HUNT, J., concur.