Opinion
No. 33951-0-II.
March 27, 2007.
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 03-1-00390-8, F. Mark McCauley and David E. Foscue, JJ., entered September 26, 2005.
Counsel for Appellant(s), Peter B. Tiller, The Tiller Law Firm, Po Box 58, Centralia, WA, 98531-0058.
Counsel for Respondent(s), Kraig Christian Newman, Grays Harbor Co PA, 102 W Broadway Ave Rm 102, Montesano, WA, 98563-3621.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Bridgewater and Quinn-Brintnall, JJ.
Ricky Lee Knokey appeals his conviction of vehicular homicide, arguing that the trial court should have suppressed his statements to a police officer and evidence the police illegally obtained from his car. He also argues that his trial counsel should have objected to the trial court's instruction defining the crime's elements and the instruction explaining proximate cause. Finally, he argues that the State presented insufficient evidence that he was under the influence of intoxicating liquor or drugs. Finding no reversible error, we affirm.
FACTS
On March 20, 2002, at around 9:00 p.m., Ricky Lee Knokey crashed his vehicle into the guardrail on the side of a highway. Richard Pinnell was thrown from the car and died at the scene. Knokey sustained numerous injuries, including head injuries, lung injuries, broken bones, and cuts and bruises. When witnesses arrived at the scene, Knokey was standing outside the vehicle. He stated or implied to several people that he was the driver of the vehicle. Washington State Patrol Trooper Aaron Belt interviewed Knokey at the hospital after the accident. Belt smelled intoxicants on Knokey's breath but noted that his speech was not slurred. Belt testified that he read Knokey his Miranda rights and Knokey said that he understood his rights. Belt did not have Knokey sign a form stating that he understood his rights because Knokey was strapped to a backboard. In response to Belt's questioning, Knokey stated that he was the driver of the vehicle and that he had had a few beers. Knokey could not remember if he had any passengers in the car. He was able to recall the location of the accident and where he was headed at the time. Knokey had not received pain medication at the time of Belt's questioning.
Some witnesses refer to Pinnell as Rick or Ricky Paulzine.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
At 11:30 p.m., hospital staff drew blood from Knokey; later testing revealed a blood alcohol concentration of 0.05 grams per 100 milliliters and 15 nanograms of carboxyl tetrahydrocannabinol (THC), the metabolized product of marijuana, in his blood.
The State charged Knokey with one count of vehicular homicide, alleging that Knokey caused Pinnell's death by operating a motor vehicle while under the influence of an intoxicating liquor or drug. The trial court denied Knokey's CrR 3.5 motion to suppress his statements to Belt, but it did not enter findings of fact or conclusions of law. After two mistrials, the State amended the information to allege all three prongs of vehicular homicide, alleging that Knokey caused Pinnell's death by operating a motor vehicle while under the influence of an intoxicating liquor or drug, in a reckless manner, or with disregard for the safety of others.
In June 2004, after the first mistrial, Washington State Patrol Detective David Killeen obtained evidence from Knokey's car, which was located in a fenced impound lot controlled by the state patrol. Although the State had obtained a search warrant for the car in 2002, it did not obtain a new warrant in 2004. The trial court denied Knokey's CrR 3.6 motion to suppress the evidence Killeen obtained in 2004, but again it did not enter findings of fact or conclusions of law.
A jury convicted Knokey of vehicular homicide, finding by special verdict that he was under the influence of intoxicating liquor or drugs and that he drove in a reckless manner and with disregard for the safety of others.
Knokey contends that the State did not prove that he knowingly waived his Miranda rights before answering the trooper's questions, that his statement was involuntary, that the later search was illegal because the police did not obtain a new search warrant, that the court misinstructed the jury on the crime's elements and proximate cause, and that the State failed to prove that he was intoxicated or under the influence of drugs.
ANALYSIS I. Knokey's Statements to Trooper Belt
Knokey contends that the trial court erred (1) in failing to enter written findings of fact and conclusions of law following the CrR 3.5 hearing and (2) in determining that he validly waived his Miranda rights and knowingly, intelligently, and voluntarily made his statements to Belt.
At the CrR 3.5 hearing, Belt testified that he read Knokey his Miranda rights, asked Knokey if he understood those rights, and Knokey said he did. Belt did not have Knokey sign a form stating that he understood his rights because Knokey was strapped to a backboard. Knokey testified that he did not remember speaking with a state patrol trooper at the hospital that night. Knokey's father testified that he remembered Belt talking with his son, but he did not remember Belt reading Knokey his Miranda rights. Knokey's mother testified that she remembered Belt questioning her son, but she did not testify about whether she heard Belt read Knokey his Miranda rights.
Dr. Brent Rowe, Knokey's treating physician, testified that Knokey sustained head injuries, lung injuries, broken bones, and cuts and bruises. Dr. Rowe testified that Knokey first received pain medication several hours after his admission and that he had pain management issues throughout his hospitalization. Dr. Rowe also testified that Knokey did not have an intracranial brain injury and that he received the highest score on a test used to evaluate patients with head injuries.
A. Failure to Enter Written Findings and Conclusions
Knokey asks us to remand to the trial court for entry of written findings and conclusions. CrR 3.5 requires a trial court to hold a hearing when the State offers a defendant's statement into evidence to determine if it is admissible. After the hearing, the court must set forth in writing "(1) the undisputed facts; (2) the disputed facts; (3) conclusions as to the disputed facts; and (4) conclusion as to whether the statement is admissible and the reasons therefor." CrR 3.5(c). The court's failure to comply with CrR 3.5 is error, but the error is harmless if the court's oral findings are sufficient to permit appellate review. State v. Miller, 92 Wn. App. 693, 703, 964 P.2d 1196 (1998).
In its oral ruling the trial court found that (1) Belt read Knokey his rights, (2) Knokey stated he understood them, (3) Knokey had difficulty remembering the exact circumstances of the accident but scored high on a test used to evaluate patients with head injuries, and (4) there was no testimony that pain causes an inability to understand questions. The court concluded that (1) Knokey was aware of what was going on around him, (2) his level of impairment was not sufficient to prevent him from voluntarily waiving his rights, and (3) he knowingly, voluntarily, and intelligently talked to Belt after Belt had informed him of his rights. This ruling is sufficient to permit appellate review.
B. Miranda Warnings
Knokey contends that the State did not meet its burden of showing that Belt actually read Knokey his Miranda rights or that Knokey actually stated that he understood them.
We will uphold a trial court's CrR 3.5 findings if substantial evidence supports them. State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997). Belt testified that he read Knokey his rights and that Knokey said he understood them. And no witness testified that Belt did not read Knokey his rights; Knokey and his father testified only that they did not remember Belt reading the Miranda warnings. Belt's testimony provides substantial evidence to support the trial court's finding that Belt did in fact inform Knokey of his rights and that Knokey understood them.
But Knokey argues that Belt's testimony alone is not sufficient to show a valid waiver. He maintains that when there is a "swearing contest" between an officer who testified that he gave warnings and a defendant who denied that he was warned, the State must present other independent testimony to corroborate the officer's version before a court can find that a waiver occurred. Br. of Appellant at 21-22 (citing State v. Davis, 73 Wn.2d 271, 288, 438 P.2d 185 (1968)).
Davis is distinguishable. Knokey and his father did not contradict Belt's testimony that he warned Knokey of his rights; rather, they testified that they did not remember Belt warning him. And, unlike in Davis, every person present during Belt's interrogation testified. Moreover, the Davis court noted that the State's burden of proving the validity of waivers in the "field" may be lighter than that for "station house" waivers. Davis, 73 Wn.2d at 288 n. 4. Belt did not ask Knokey to sign the waiver form because Knokey was strapped to a backboard, a reflection of the chaotic situation following the accident.
The trial court did not err in finding that Belt informed Knokey of his rights and that Knokey stated he understood them before answering Belt's questions.
C. Knowing, Voluntary, and Intelligent Waiver
Knokey also argues that the State failed to demonstrate that he knowingly, voluntarily, and intelligently waived his rights.
To determine whether a suspect's confession was voluntary, we consider the circumstances in which he gave the statement. Broadaway, 133 Wn.2d at 132. Specifically, we look at the evidence of the defendant's physical condition, his mental ability, and the police conduct. State v. Rupe, 101 Wn.2d 664, 679, 683 P.2d 571 (1984). A written waiver is not necessary to establish voluntariness. Rupe, 101 Wn.2d at 678 (citing North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979)).
Here, Knokey had recently suffered serious injuries and he had difficulty remembering the circumstances of the accident, but he did provide responsive and coherent answers to Belt's questions. He had not yet received narcotic pain medication that might cloud his thinking. And no witness suggested that Belt coerced an admission from Knokey. Rather, Belt waited while Knokey received medical attention before questioning him, allowed Knokey's parents to be present during the questioning, and questioned Knokey for only about five minutes. Under these circumstances, substantial evidence supports the trial court's conclusion that Knokey's statements were made knowingly, intelligently, and voluntarily.
Moreover, even if the State did not demonstrate that Knokey knowingly, voluntarily, and intelligently waived his rights before speaking to Belt, any error in admitting the statements was harmless beyond a reasonable doubt. State v. Levy, 156 Wn.2d 709, 731, 132 P.3d 1076 (2006) (citing State v. Lougin, 50 Wn. App. 376, 382, 749 P.2d 173 (1988)). One emergency medical technician at the scene of the accident testified that Knokey said he drove the car, and another testified that Knokey repeated, "[W]hat have I done I just killed my friend." Report of Proceedings (RP) (June 28, 2005) at 179-80. Additionally, a friend of the Knokey family testified that Knokey said he "screwed up" when she visited him at the hospital after the accident. RP (June 28, 2005) at 187. Any error in admitting Knokey's statements to Belt was harmless beyond a reasonable doubt because Knokey made similar statements to other witnesses.
The trial court did not err in denying Knokey's CrR 3.5 motion. II. Warrantless Search of Knokey's Car
Knokey contends that the trial court erred (1) in failing to enter written findings of fact and conclusions of law following the CrR 3.6 hearing and (2) in finding that it was not necessary for the State to obtain a subsequent search warrant to remove evidence from his car in June 2004.
In June 2004, 26 months after the original search warrant was issued, Detective Killeen examined Knokey's car at the state patrol's secure impound lot. He removed the passenger-side seat belt, the plastic emergency brake housing, the mounting bracket for the rearview mirror, and the front windshield. At the CrR 3.6 hearing, Knokey argued that the 2004 entry into Knokey's car was an illegal warrantless search and, therefore, the court should suppress any evidence thus obtained.
A. Failure to Enter Written Findings and Conclusions
Knokey again asks us to remand to the trial court for entry of written findings and conclusions.
When a party moves to suppress evidence under CrR 3.6, a trial court may hold an evidentiary hearing or deny the motion without a hearing. If the court does not hold a hearing, it must enter a written order setting forth the reasons for its decision. CrR 3.6(a). If the court holds an evidentiary hearing, it must enter written findings of fact and conclusions of law at the conclusion of the hearing. CrR 3.6(b). As with CrR 3.5 rulings, the court's failure to comply with CrR 3.6 is error, but the error is harmless if the court's oral findings are sufficient to permit appellate review. State v. Riley, 69 Wn. App. 349, 352-53, 848 P.2d 1288 (1993).
Here, the parties did not dispute the material facts: the State had a warrant to search Knokey's car in 2002, the State held Knokey's car in a secure impound lot, and Killeen removed items from the car in 2004 without obtaining a new warrant. Thus, the lack of findings of fact does not prejudice Knokey. See State v. Stock, 44 Wn. App. 467, 477, 722 P.2d 1330 (1986) (finding no prejudice to defendant from lack of findings of fact when there were no disputed issues of fact).
In the trial court's oral ruling, it concluded that (1) there was no Washington case law on the issue, (2) it would therefore rely on case law from other states, and (3) the State did not need a warrant to remove evidence from the car because it was an instrument of the crime. This ruling is sufficient to permit appellate review.
B. Harmless Error
A trial court may not constitutionally admit evidence obtained by an illegal search. State v. Thompson, 151 Wn.2d 793, 808, 92 P.3d 228 (2004). But the error is harmless if we are convinced beyond a reasonable doubt that any reasonable trier of fact would have reached the same result despite the error. Thompson, 151 Wn.2d at 808 (citing State v. Brown, 140 Wn.2d 456, 468-69, 998 P.2d 321 (2000)).
Assuming, without deciding, that the police illegally searched Knokey's car in the later search, the search did not harm Knokey. Killeen testified that it appeared from his 2004 examination that there may have been contact damage near the center of the windshield from inside the vehicle, but that it was difficult to tell. His other testimony about the windshield was based on pictures from the accident scene. A state patrol forensic scientist testified that he examined the seatbelt and the rearview mirror bracket for the presence of blood but, finding none, did no further testing; he did not mention the windshield. And the State introduced no evidence concerning the emergency brake housing. Thus, none of the evidence obtained in 2004 supported the State's case or rebutted Knokey's. We are satisfied beyond a reasonable doubt that the results of the 2004 search did not affect the jury's verdict.
Killeen testified that he sent the windshield to the crime lab for testing.
III. Jury Instructions
Knokey assigns error to jury instructions 4 and 8. Instruction 4 described the elements the State had to prove in order to convict Knokey of vehicular homicide. Instruction 8 defined proximate cause.
Instruction 4 provided, in relevant part:
To convict the defendant of the crime of Vehicular Homicide, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about March 20, 2002, the defendant drove or operated a motor vehicle;
(2) That the defendant's driving proximately caused injury to Richard Pin[n]ell;
(3) That at the time of causing the injury, the defendant was operating the motor vehicle
(a) while under the influence of or affected by the use of intoxicating liquor and/or drugs; or
(b) in a reckless manner; or
(c) with disregard for the safety of others;
(4) That the injured person died within three years as a proximate result of the injuries; and
(5) That the acts occurred in Grays Harbor County, Washington. Clerk's Papers (CP) at 111-12.
Instruction 8 provided in full:
To constitute Vehicular Homicide, there must be a causal connection between the death of a person and the criminal conduct of the defendant so that act done or omitted was a proximate cause of the resulting death.
The term "proximate cause" means a cause which, in direct sequence, unbroken by any new independent cause, produces the death, and without which the death would not have happened. There may be more than one proximate cause of the death.
CP at 112.
A. Invited Error: Ineffective Assistance of Counsel
Knokey's counsel did not object to these instructions. Thus, the invited error doctrine would normally bar him from claiming error on appeal. See State v. Bradley, 141 Wn.2d 731, 736, 10 P.3d 358 (2000) (citing State v. Neher, 112 Wn.2d 347, 352-53, 771 P.2d 330 (1989)). But in a criminal case, where counsel may have been ineffective in offering an incorrect jury instruction, the invited error doctrine does not preclude review. Bradley, 141 Wn.2d at 736 (citing State v. Aho, 137 Wn.2d 736, 745-46, 975 P.2d 512 (1999)). Accordingly, we may consider these claims.
To prove that counsel's representation was flawed, Knokey must show that (1) his trial counsel's representation was deficient and (2) the deficiency prejudiced him, depriving him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Representation is deficient if it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). Prejudice occurs when, but for the deficient performance, there is a reasonable probability the outcome would have differed. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
B. Instructions on Proximate Cause
Knokey faults his counsel for not challenging instructions 4 and 8, which, according to Knokey, allowed the jury to convict him if his conduct was "a" proximate cause of Pinnell's death, when the State alleged that his conduct was "the" proximate cause of Pinnell's death.
Jury instructions are sufficient if they allow the parties to argue their theories of the case and properly inform the jury of the applicable law. State v. Barnes, 153 Wn.2d 378, 382, 103 P.3d 1219 (2005). We review the adequacy of jury instructions de novo. State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995).
The vehicular homicide statute provides that a driver is guilty of vehicular homicide when "the death of any person ensues within three years as a proximate result of injury proximately caused by the driving of any vehicle by any person" if the driver was operating a vehicle under the influence of intoxicating liquor or any drug, in a reckless manner, or with disregard for the safety of others. RCW 46.61.520(1) (emphasis added). The information alleged that Knokey drove a motor vehicle while under the influence of an intoxicating liquor or drug, in a reckless manner, or with disregard for the safety of others, "and did thereby proximately caused [sic] injury to Richard Pinnell, a person who died within three years on or about as a proximate result of said injury." CP at 48 (emphasis added). The instructions required the jury to find that Knokey's driving "proximately caused" Pinnell's injury and that Pinnell died as "approximate result" of those injuries. CP at 111-12 (emphasis added). The instructions mirror both the charge and the statutory language. The State did not allege that Knokey's conduct was "the" proximate cause of Pinnell's death; it alleged that Knokey "proximately caused" Pinnell's injuries and his death was "a proximate result" of those injuries. CP at 48. This charge does not contain the limitation that Knokey contends it does. Accordingly, the jury instructions did not permit the jury to convict Knokey on lesser proof than the charge required.
Because the jury instructions were correct, Knokey's counsel was not ineffective for failing to object to them.
IV. Intoxication as Proximate Cause of Death
Knokey next argues that the State did not prove that his intoxication caused Pinnell's death as required by State v. MacMaster, 113 Wn.2d 226, 231-32, 778 P.2d 1037 (1989).
In MacMaster, our Supreme Court analyzed a 1983 amendment to the vehicular homicide statute and concluded that the legislature did not intend to remove the causation requirement courts had imposed on the statute. MacMaster, 113 Wn.2d at 232. The court was concerned that a literal statutory interpretation would impose strict liability on intoxicated drivers. MacMaster, 113 Wn.2d at 231.
But the court revisited the issue after the legislature again amended the vehicular homicide statute in 1991. The court concluded that the 1991 amendment did in fact remove the causation requirement. State v. Rivas, 126 Wn.2d 443, 451-53, 896 P.2d 57 (1995). The Rivas court found that the legislature clearly stated "that the only causal connection which the State is required to prove is the connection between the act of driving and the accident." Rivas, 126 Wn.2d at 451. The State was not required to prove a causal connection between Knokey's intoxication and the accident. Rivas, 126 Wn.2d at 453.
The vehicular homicide statute still contains language identical to that analyzed in Rivas. Compare RCW 46.61.520(1) with Rivas, 126 Wn.2d at 450-51.
V. Sufficiency of the Evidence
Knokey contends that the State did not present sufficient evidence to support his conviction, arguing specifically that the State failed to prove that he was intoxicated at the time of the accident.
Evidence is sufficient to support a conviction if, after reviewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). In considering a defendant's claim of insufficient evidence, we accept the State's evidence and draw all reasonable inferences from the evidence in the State's favor. Salinas, 119 Wn.2d at 201. When the State charges a defendant with committing vehicular homicide by alternate means, the jury need not be unanimous as to which alternative means the State proved, provided that the State produced substantial evidence of each. State v. Randhawa, 133 Wn.2d 67, 73-74, 941 P.2d 661 (1997).
A person is under the influence of intoxicating liquor or any drug if the person has a blood alcohol concentration of 0.08 or higher within two hours after driving, the person is under the influence of or affected by intoxicating liquor or any drug, or the person is under the combined influence of or affected by intoxicating liquor and any drug. RCW 46.61.502(1). The State may use a blood sample obtained more than two hours after driving as evidence that the person had a blood alcohol concentration of 0.08 or more within two hours of driving or that the person was under the influence of or affected by alcohol. RCW 46.61.502(4).
The State presented evidence that two-and-one-half hours after the accident, Knokey had a blood alcohol concentration of 0.05 and 15 nanograms of carboxyl THC in his blood. The State's expert testified that, extrapolating back to the time of the accident, Knokey's blood alcohol concentration was 0.08 or higher. And she testified that THC metabolizes into carboxyl THC within two to three hours of ingesting marijuana and that carboxyl THC typically disappears from the bloodstream within about 12 hours. The State also presented evidence that Knokey did not drink alcohol or ingest marijuana while he worked that day, from 8:00 a.m. to around 4:30 p.m.
The State's expert also testified that a blood alcohol concentration of 0.05 or less can significantly impair a person's ability to perform divided-attention tasks such as driving and can impair a person's judgment and fine motor skills. She testified that THC affects a person's perception of time and space, coordination, reaction time, and ability to pay attention. And she testified that ingesting marijuana and alcohol at the same time increases these effects. This was sufficient evidence for the jury to infer that Knokey was under the influence of an intoxicating liquor, a drug, or both at the time of the accident.
The State presented sufficient evidence to support Knokey's conviction.
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.
We concur:
Bridgewater, P.J.
Quinn-Brintnall, J.