Opinion
No. 57520-1-I.
May 21, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-1-14146-6, Douglass A. North, J., entered December 19, 2005.
Affirmed by unpublished per curiam opinion.
A trial court's conclusions on a suppression motion will not be overturned on appeal if they are supported by substantial evidence in the record. Because there is substantial evidence in the record supporting the trial court's conclusion that Son Phan understood English sufficiently enough to make a knowing, intelligent and voluntary waiver of his constitutional rights, we affirm.
FACTS
Son Phan is a native of Vietnam and has been living in the United States for 15 years. In November 2004, he was homeless and living in a tent community under Interstate 5 in Seattle known as "the Jungle." Michelle Alojasin also was homeless, lived in the same community as Phan, and knew Phan personally. One night in November, Phan came into Alojasin's tent and asked her if she wanted to smoke crack with him. Alojasin agreed. After smoking some crack, Phan pulled down his pants and put his "private part" in her face. Phan demanded sex from Alojasin, but she refused. Phan pulled out a knife and a struggle ensued. Alojasin was stabbed in the chest and Phan left Alojasin injured in her tent.
A day later, acting on an anonymous tip that a woman had been stabbed, the police arrived to discover Alojasin. They transported her to the hospital where she underwent open-heart surgery. While recovering from surgery, Alojasin was interviewed by the police. She described her attacker as Vietnamese, short, and cross-eyed. She also told them his name was Son. The police then provided Alojasin a montage of six photographs of persons. Alojasin was not able to identify anyone from the photographs. Later that day, the police presented Alojasin with a second montage based on information from police officers familiar with the people living in the Jungle. Alojasin immediately picked out Phan's photograph.
Phan was arrested the same day. The police read Phan his Miranda rights and then transported him to the police station where he was interviewed. During the course of the interrogation Phan confessed to having threatened Alojasin with a knife, but contended her injury was an accident.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Prior to trial, Phan moved to have his custodial statements suppressed, arguing that he did not knowingly, intelligently and voluntarily waive his constitutional rights. After a hearing at which five police officers testified, the trial court determined that at the time of his arrest, Phan could sufficiently understand his rights in English and was thus capable of making an appropriate waiver of those rights. The court also concluded that Phan verbally acknowledged that he understood his rights to two of the officers and that Phan stated to one of the detectives that he understood and spoke English. Phan's statements were thus admitted into evidence.
Also prior to trial, Phan moved to suppress the photographic montage identification and any subsequent in-court identification based on the fact that Phan was the only person in the montage with crossed eyes and who was wearing a patterned shirt. The trial court denied Phan's motion, stating that while the photograph of Phan was suggestive it did not give rise to a very substantial likelihood of irreparable misidentification.
After the trial and the jury deliberations, the jury informed the court that it had reached a verdict. However, in reviewing the verdict forms the trial court noticed that the jury had failed to fill out the special verdict form regarding the deadly weapons enhancements. Upon noticing this, the trial court inquired whether the jury had failed to fill out the form because they had failed to agree, or because they had not discussed those questions. The foreperson stated that they had discussed the issues on the special verdict forms and had reached a unanimous decision, but did not realize they had to fill out that form as well. Without accepting the verdict, the trial court then directed the jury to return to the jury room to finish their deliberations and determine how to complete the special verdict form. The jury returned later, having found that Phan committed both crimes with a deadly weapon. The trial court then polled each juror to determine whether they had in fact discussed and arrived at a determination on the deadly weapon issue before the court had inquired as to the reason why the form had not been completed. The jurors each answered in the affirmative. The trial court then accepted the verdicts.
Phan appeals.
ANALYSIS
Custodial Statements
When a criminal defendant has been read his or her Miranda rights, the defendant may waive those rights, provided the waiver is made knowingly and intelligently. When a motion to suppress a custodial statement is brought, the State has the burden of proving that a defendant has made a knowing, voluntary and intelligent waiver of his or her Miranda rights. A trial court's conclusions on a suppression motion will not be overturned on appeal if they are supported by substantial evidence in the record.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
State v. Teran, 71 Wn. App. 668, 671-72, 862 P.2d 137 (1993).
Teran, 71 Wn. App. at 672.
Teran, 71 Wn. App. at 671.
Phan's challenge is based on his alleged inability to understand his rights as communicated to him in English. Here, the trial court's conclusion that Phan could sufficiently understand his rights in English and thus was capable of making an appropriate waiver of those rights is supported by substantial evidence in the record. Five members of the police department testified as to Phan's ability to communicate in English. Two of the officers had previous contacts with Phan and had conversations with him in English. In their opinions, Phan's ability to orally communicate in English was good and they never had any difficulties conversing with him. When the police read Phan his rights and asked Phan if he understood his rights, Phan answered, "yes." The arresting officers testified that Phan did not appear to be under the influence of alcohol or drugs at the time of the arrest.
The detectives who interviewed Phan at the station similarly stated that they had no difficulty communicating with Phan in English and that Phan's answers were responsive to their questions. They described Phan as being alert and willing to speak. Phan also told one of the detectives that he understood and spoke English. Taken together, the evidence is sufficient to support the trial court's conclusion.
Photomontage
Whether to admit evidence of a photo identification or photomontage used to identify a suspect is subject to the sound discretion of the trial court. An identification procedure violates due process if it is "`so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification.'" If the defendant fails to show the identification procedure was suggestive, the inquiry ends. However, if the defendant succeeds in proving the procedure was suggestive, "the court then considers, based upon the totality of the circumstances, whether the procedure created a substantial likelihood of irreparable misidentification."
State v. Kinard, 109 Wn. App. 428, 432, 36 P.3d 573 (2001).
State v. Vickers, 148 Wn.2d 91, 118, 59 P.3d 58 (2002) (quoting State v. Linares, 98 Wn. App. 397, 401, 989 P.2d 591 (1999)).
Vickers, 148 Wn.2d at 118.
When evaluating the totality of the circumstances, the court considers the following five factors: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the prior description given by the witness; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.
Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).
Here, the trial court thought the photomontage used to identify Phan was suggestive, but not impermissibly so. In considering the factors enumerated above, the trial court stated:
I'll admit the photo exhibit. I think that it is suggestive. But I think then that one goes on then to the other factors to consider in determining whether it's so unduly suggestive as to taint Ms. Alojacin's identification of the defendant. And I don't think that it does. It's clear that Ms. Alojacin knew Mr. Phan prior to the events in this case. He was part of the group that she would hang out with and smoke crack within the jungle. She said that — I think there's testimony that they had smoked crack together before. They — there are other factors certainly involved here. There was this alleged assault occurred over a significant period of time. This isn't a matter of where she just got a fleeting glance of this guy or so on for just a minute. I don't know how long it occurred over. But it seems to me a minimal five or ten minutes that they were in the tent together trying to evolve all of this so fast. It was a fair amount of time for her to be certain who she was dealing with. She was very certain when she made her identification of him. There's no question that she knew that she was identifying the person that she believed had committed the assault of her. So I'll admit the photo.
The trial court considered the appropriate factors which, as described above by the trial court, heavily weighed in favor of allowing the evidence in. The trial court did not err in exercising its discretion in admitting the evidence.
Special Verdict Form
The trial court has the right to ascertain whether the verdict submitted to it reflects the true intent of the jury as well as the right, before the verdict is received and filed for record, to send the jury back to consider and clarify or correct mistakes appearing on the face of the verdict. This is all that occurred in this case. Upon determining that the jury had left the special verdict form blank because they did not think that they had to fill out the form, and that their true intention was to answer the questions on the form in the affirmative, the court did not err in sending the jury back to correct the mistake.
State v. Badda, 68 Wn.2d 50, 61, 411 P.2d 411 (1966); Newcomer v. Weyerhaeuser Co., 26 Wn. App. 958, 963, 614 P.2d 705 (1980); Beglinger v. Shield, 164 Wash. 147, 153-54, 2 P.2d 681 (1931); see also CrR 6.16(a)(3) and (b).
For the above reasons, we affirm.