Opinion
No. 55403-4-I.
May 30, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-8-00192-9, Charles W. Mertel, J., entered December 15, 2004.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
Cheryl D Aza, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Sarn Orn Saetern (Appearing Pro Se), Maple Lane School, 20311 Old Highway SW, Centralia, WA 98531.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
David M Seaver, King Co Pros Office, W554, 516 3rd Ave, Seattle, WA 98104-2390.
Affirmed by unpublished opinion per Cox, J., concurred in by Agid and Dwyer, JJ.
S.S. appeals his conviction for second degree felony murder. He contends that the juvenile court should have suppressed his confessions made both before and after Miranda warnings because they were involuntary. He also contends he was in custody when he confessed before receiving any Miranda warnings. Finally, S.S. asserts that there was insufficient evidence to support the adjudication without the admission of his confessions. Because his post-warning confession was voluntary and properly admitted, we affirm.
384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
One evening in January 2004, 14-year-old S.S. and a group of his friends were having a snowball fight in front of his house. As everyone was playing, a second group of kids showed up and broke up the snowball fight. The second group of kids threw beer bottles and a bike rim at S.S.'s house, breaking windows. The first group of kids ran inside S.S.'s house, and S.S. hid outside behind a car. After the troublemakers left, S.S. got out his father's rifle and shotgun in case they came back. S.S. loaded the rifle, and A.R., a friend of his, loaded the shotgun.
Within a short amount of time, the troublemakers came back, and S.S. and A.R. took the loaded guns upstairs to S.S.'s parents' bedroom. S.S.'s other friends remained downstairs. The troublemakers were across the street, yelling things to taunt S.S. and his friends to come outside and fight. Without warning, S.S. fired a shot toward the troublemakers across the street and missed. S.S. shot three more times, aiming at the legs of 17-year-old C.B. Grundy. On the fourth shot, S.S. hit Grundy, wounding him in the head. He died the next day.
The day after the shooting, two detectives went to S.S.'s house to investigate the crime. After speaking with S.S. and his younger brother for several minutes, the detectives told the boys they would like to take them down to their office to answer questions and look at photos. The boys willingly went with the detectives.
At police headquarters, S.S. was put in a room while the detectives interviewed his younger brother for nearly an hour. The evidence at the CrR 3.5 hearing indicates the door of the room locked when closed. There is no evidence to indicate whether S.S. was aware of this when he was at the police station.
When the detectives finished interviewing the younger brother, they began questioning S.S. Shortly after the interrogation began, he confessed to shooting Grundy. The detectives immediately ceased questioning him and read S.S. Miranda warnings. S.S. signed his initials in front of each of the rights as they were read to indicate he understood his rights. S.S. then signed a Waiver of Constitutional Rights. Thereafter, he repeated the substance of what he had said before the warnings. The detectives read S.S. his constitutional rights again and he gave a taped statement. The State charged S.S. with first degree murder and, in the alternative, second degree murder. The juvenile court denied S.S.'s CrR 3.5 motion to suppress his statements to the police. The court found him guilty of second degree felony murder and imposed a standard range disposition. S.S. appeals.
VOLUNTARINESS OF CONFESSION
We first address whether the post-Miranda confession that the trial court admitted was voluntary under the totality of the circumstances. We hold that it was.
A confession is voluntary if it is `the product of a rational intellect and a free will.' In order to determine whether a confession is voluntary, the court examines the `totality of the circumstances' in which the confession was made. The relevant factors the court may consider include: `the defendant's physical condition, age, experience, mental abilities, and the conduct of the police.' A suspect's statements made during custodial interrogation without Miranda warnings are presumed involuntary.
State v. Rupe, 101 Wn.2d 664, 679, 683 P.2d 571 (1984) (citing Mincey v. Arizona, 437 U.S. 385, 398, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978)).
State v. Cushing, 68 Wn. App. 388, 392, 842 P.2d 1035, review denied, 121 Wn.2d 1021 (1993).
Id.
State v. Heritage, 152 Wn.2d 210, 214, 95 P.3d 345 (2004).
S.S. does not challenge the juvenile court's findings of fact. Therefore, those findings are verities on appeal. The juvenile court concluded that under the totality of the circumstances, S.S.'s confessions to the detectives were voluntary. A juvenile court's conclusions of law are reviewed de novo.
State v. Aten, 130 Wn.2d 640, 668, 927 P.2d 210 (1996).
State v. Graham, 153 Wn.2d 400, 404, 103 P.3d 1238 (2005).
The dispositive issue here is whether S.S.'s post-Miranda confession was voluntary. If it was, we need not address whether his pre-warning confession should have been suppressed for any reason.
Oregon v. Elstad is controlling. In that case, officers went to Elstad's home with a warrant for his arrest. The officer questioned Elstad without giving him warnings. He confessed to being involved in the robbery. After Elstad was escorted to the police station, he was given Miranda warnings for the first time. He waived his rights and gave a signed statement confessing to the crime. The United States Supreme Court held the post-warning confession was admissible stating, `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.'
470 U.S. 298, 300, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985).
Elstad, 470 U.S. at 300.
Id. at 318.
Here, the detectives questioned S.S. for several minutes when, to their surprise, he confessed. They immediately read him Miranda warnings. S.S. subsequently waived his rights and gave a confession. Like Elstad, the detectives never used coercive techniques to obtain a confession, and the post-Miranda confession was voluntary and admissible.
S.S. relies on Missouri v. Seibert to argue that his post-warning confession is inadmissible. That case is distinguishable.
542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004).
In Seibert, pursuant to police procedure, the officer deliberately withheld Miranda warnings to obtain a confession after the police arrested Seibert. But unlike Seibert, the detectives here never deliberately withheld warnings in order to obtain a confession from S.S. Rather, the detectives were questioning S.S. in order to find out more information about the shooting, but did not consider him a suspect. S.S. was not under arrest while questioned and the detectives testified that they were shocked when he confessed to the shooting.
Next, S.S. relies on State v. Jerrell C.J., a Wisconsin Supreme Court case, to argue his confession was involuntary. In that case, the police arrested 14-year-old Jerrell at his home early in the morning following a robbery. The police handcuffed Jerrell to the wall in the interrogation room and he was left alone for two hours. The officers rigorously questioned him for almost four hours before he confessed, and at times the officers raised their voices and frightened him. The officers denied Jerrell's requests to call his parents. Also, Jerrell's IQ was 84, below average. The Wisconsin Supreme Court held that under the totality of the circumstances the confession was involuntary.
283 Wis. 2d 145, 699 N.W.2d 110 (2005).
Id. at 151-52.
Id. at 152-53, 163.
Id. at 164.
Here, S.S. agreed to go to the detectives' office. Although S.S. was in a locked room by himself for almost an hour, Detective David Duty testified he gave S.S. a soda and a trail mix bar. The detectives did not question S.S. for hours and never made threats or spoke in a frightening manner. Rather, Detective Daniel Dudik told S.S. he did not believe him and S.S. confessed to the shooting shortly thereafter. Nothing in the record suggests that S.S. did not understand his rights or that his waiver was involuntary. Moreover, prior to this incident, S.S. was arrested three times, indicating he was familiar with police interrogation.
State v. Vangen, 72 Wn.2d 548, 554, 433 P.2d 691 (1967) (A court may consider an arrested person's familiarity with police interrogation procedures resulting from prior arrests in determining whether there was a knowing and voluntary waiver of constitutional rights.).
The confession was voluntary and admissible, as the trial court properly ruled.
SUFFICIENCY OF EVIDENCE
S.S. also argues that in the absence of his confession, the evidence is insufficient to support his adjudication. However, the admission of his post-Miranda confession was correct. Therefore, there is sufficient evidence to support S.S.'s adjudication.
Even if we assume the confession should have been suppressed, its admission would have been harmless beyond a reasonable doubt.
State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996).
S.S. contends that because A.R. was the only witness who saw him fire the rifle at the kids, the evidence is insufficient. That position is untenable. A.R. testified at trial that he was behind S.S. when he fired the rifle and he saw S.S. fire. A.R. stated that S.S. fired three shots across the street where several people were standing, and he also saw one person drop to the ground. This eyewitness testimony is sufficient to establish guilt beyond a reasonable doubt.
CUSTODY
S.S. also asserts that the trial court improperly determined that he was not in custody when he initially confessed to shooting Grundy. He relies primarily on the Berkemer objective test. Under the test, the sole inquiry is `whether a reasonable person in [the] suspect's position would have felt that his or her freedom was curtailed to the degree associated with a formal arrest.' We note there is authority in Washington that addresses the question of custody in the context of an interrogation of a juvenile. Because we have held that S.S.'s post-Miranda confession was voluntary and admissible, we need not reach whether S.S. was in custody when he initially confessed.
State v. Short, 113 Wn.2d 35, 40, 775 P.2d 458 (1989) (citing Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984)).
Heritage, 152 Wn.2d at 218 (citing Berkemer, 468 U.S. at 441-42).
State v. D.R., 84 Wn. App. 832, 838, 930 P.2d 350, review denied, 132 Wn.2d 1015 (1997) (holding D.R. was in custody when questioned by a detective, in the principal's office, at his school because the detective did not inform him he was free to leave, D.R. was only 14-years-old, the principal's office is a naturally coercive environment for children of his age, and the interrogation was accusatory in nature).
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
S.S. filed a statement of additional grounds for review, contending that he was placed in a holding cell and was never given anything to eat or drink. These mere assertions, without more, do not establish grounds for relief.
Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (we need not consider an argument that is not supported by any reference to the record nor any citation to authority).
We affirm the adjudication and disposition.
DWYER and AGID, JJ., concur.