State of Washington v. Elizabeth Mulligan ( 2015 )

FILED
AUG 4, 2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 32998-4-111
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
ELIZABETH MULLIGAN, )
)
Appellant. )
LAWRENCE-BERREY, J. - A jury convicted Elizabeth Mulligan of one count of
third degree assault and two counts of fourth degree assault in relation to an incident that
occurred inside and outside of a tavern in Tacoma, Washington. On appeal, Ms. Mulligan
contends that her statements made to police after Miranda l warnings should be
suppressed and that there was insufficient evidence to disprove that she was acting in
self-defense on one of the two fourth degree assault charges. We disagree and affirm.
FACTS
1 Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 32998-4-111
State v. Mulligan
On the evening of March 11,2013, Tami Kenan was working her shift as a
bartender at the Flying Boots tavern in Tacoma. Shortly before midnight, three couples
dressed in formal wear entered the tavern. Ms. Kenan recognized one of the couples as
Robert and Elizabeth Mulligan, who had visited the tavern a few days earlier. The group
sat down in a booth and ordered drinks. Everyone seemed in good spirits. Eventually,
one of the couples left, and the Mulligans and David and Angela Anderson stayed.
Shortly thereafter, Ms. Kenan overheard the two couples arguing. Mr. Anderson
accused his wife of flirting with Mr. Mulligan. The argument escalated as Mr. Anderson
attempted to physically drag Ms. Anderson out of the tavern. In defense of Ms.
Anderson, Ms. Mulligan yelled at Mr. Anderson. In an attempt to defuse the situation,
Ms. Kenan approached the couples and asked Mr. Anderson to come with her to another
part of the tavern. As they walked away, Ms. Mulligan followed and told Ms. Kenan that
Mr. Anderson was abusive toward Ms. Anderson. Then, Mr. Mulligan joined in Ms.
Mulligan's argument with Mr. Anderson. A physical fight began between the three
individuals and ended when Mr. Anderson ran out of the tavern followed by Ms.
Anderson.
After the Andersons left the tavern, Ms. Mulligan went to the tavern's 10-foot
plate glass window, pounded on it with her fists, and shouted at the Andersons, who were
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State v. Mulligan
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standing outside. Ms. Kenan repeatedly asked Ms. Mulligan to stop because Ms. Kenan
was concerned that Ms. Mulligan might break the window and hurt herself. Ms. Mulligan
i ignored Ms. Kenan. Ms. Kenan saw that the window was bowing, grabbed Ms. Mulligan
I
from behind, and pulled her away from the window.
Ms. Kenan tried to explain that she was just trying to get Ms. Mulligan away from
the window, but Ms. Mulligan was angry and screamed that Ms. Kenan was trying to
choke her. Ms. Kenan let go of Ms. Mulligan. Ms. Mulligan turned around, looked at
Ms. Kenan, and punched her in the face. Mr. Mulligan approached, yelled obscenities at
Ms. Kenan, and then ran outside with Ms. Mulligan. The Mulligans began chasing Mr.
Anderson. Ms. Kenan asked for someone in the bar to call the police.
Ms. Kenan looked out the window and noticed Ms. Mulligan sprawled on the
ground. Ms. Kenan went outside to make sure that Ms. Mulligan was not hurt. When she
tried to help Ms. Mulligan to her feet, Ms. Mulligan punched Ms. Kenan again. Ms.
Kenan went back into the tavern. The police arrived shortly thereafter.
Responding officers found the Mulligans and the Andersons gathered across the
street from the tavern. Ms. Mulligan was sitting on a curb yelling incoherently. The
responding officers could see that Ms. Mulligan was highly intoxicated.
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State v. Mulligan
Tacoma Police Officer Steven Butts was one of the first officers to arrive. Officer
Butts approached Mr. Anderson, who was talking to another officer, to find out what was
going on. Ms. Mulligan stood up, walked directly to Officer Butts, made an angry
growling sound, and punched him in the face. The blow knocked Officer Butts' glasses
off his face.
Officer Butts grabbed Ms. Mulligan by the arm and tried to spin her around in an
attempt to keep her from hitting him again. As he was doing so, Mr. Mulligan grabbed
Officer Butts from behind and tried to pull him away from Ms. Mulligan. As other
officers attempted to restrain Mr. Mulligan, Officer Butts and another officer worked to
restrain Ms. Mulligan. In the process, Ms. Mulligan ripped Officer Butts's police radio
from his uniform. Officer Butts had to forcefully remove the radio from Ms. Mulligan.
Ms. Mulligan scratched and pinched Officer Butts as he put her in handcuffs. She
also attempted to kick the surrounding officers and continued to swear. As Ms. Mulligan
sat on the ground, she yelled, "Lawyer! Lawyer!" repeatedly for about two minutes. 2
Report of Proceedings (RP) at 181. She then banged her head against the cement two or
three times, causing her forehead to bleed. Officers had to hold Ms. Mulligan down to
prevent her from further injury. Medical responders treated Ms. Mulligan at the scene
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State v. Mulligan
and then transported her to the hospital. The medic noticed that Ms. Mulligan exhibited a
high level of intoxication and classified her as having an altered level of consciousness.
Officer Butts accompanied Ms. Mulligan to the hospital. About 1 hour and 45
minutes had passed from when Officer Butts first arrived at the tavern. Ms. Mulligan was
no longer yelling, and her demeanor was calm. Officer Butts read Miranda rights to her
and asked if she was willing to answer questions. She agreed.
Ms. Mulligan told Officer Butts that she was upset at the bartender for kicking her
group out and did not understand why they had been asked to leave. She admitted to
trying to hit Ms. Kenan but did not remember hitting Officer Butts. She also admitted to
being belligerent, drunk, and loud.
The State charged Ms. Mulligan with one count of third degree assault of Officer
Butts, one count of fourth degree assault of Ms. Kenan while inside the tavern, one count
of second degree robbery, one count of first degree theft for taking the police radio, and
one count of first degree burglary for the assault of Ms. Kenan outside the tavern. The
State also charged Mr. Mulligan with several offenses.
Prior to trial, Ms. Mulligan filed a KnapstacP motion as to the robbery, theft, and
burglary charges. The trial court granted the motion in part, dismissing the robbery and
2 State v. Knapstad, 107 Wash. 2d 346, 729 P.2d 48 (1986).
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State v. Mulligan
theft charges but allowing the burglary charges to proceed to trial. The State then
amended the information and added a second charge of fourth degree assault in place of
the first degree burglary charge committed against Ms. Kenan outside the tavern.
Also, a erR 3.5 hearing was held to determine the admissibility of Ms. Mulligan's
statements to Officer Butts. In its oral ruling, the court determined that Ms. Mulligan did
not unequivocally request an attorney before being questioned by police. The court also
entered written findings. The court found that Ms. Mulligan's yelling of "Lawyer!
Lawyer!" for two straight minutes was spontaneous and that while she was in custody at
the time, the statement was not made in response to any questioning. As for the
admissions Ms. Mulligan made while at the hospital, regarding hitting Ms. Kenan and
Officer Butts, the court found that the statements were made after Ms. Mulligan was fully
advised of her rights and after she acknowledged an understanding of those rights. The
court also found that while Ms. Mulligan appeared to be intoxicated, she was
appropriately responsive to questioning and appeared to understand; she made the
statements voluntarily, intelligently, and knowingly. The court determined that all of the
statements were admissible.
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State v. Mulligan
A jury trial was held. On the second day of trial, Ms. Mulligan asked the court to
allow her to argue self-defense in regard to the assault committed against Ms. Kenan
inside the tavern. The trial court allowed Ms. Mulligan to present the affirmative defense.
The jury found Ms. Mulligan guilty of third degree assault against the officer and both
counts of fourth degree assault against Ms. Kenan.
Ms. Mulligan appeals. She contends that the trial court erred when it concluded
that she did not make an unequivocal request for an attorney outside of the tavern. She
challenges the conviction for fourth degree assault against the bartender inside the tavern,
contending that the State failed to prove beyond a reasonable doubt that she was not
acting in self-defense.
ANALYSIS
A. Whether Ms. Mulligan's post-Miranda statements were admissible
We review a trial court's challenged findings of fact from a erR 3.5 suppression
hearing for substantial evidence. State v. Grogan, 147 Wash. App. 511, 516, 195 P .3d 1017
(2008), adhered to on remand, 158 Wash. App. 272, 246 P .3d 196 (2010). '" Substantial
evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of
the finding.'" Id. (internal quotation marks omitted) (quoting State v. Solomon, 114 Wash.
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State v. Mulligan
App. 781, 789, 60 PJd 1215 (2002)). We apply de novo review to the court's challenged
conclusions of law that are derived from the findings of fact. ld.
The right to counsel is based on the Fifth Amendment and the Sixth Amendment to
the United States Constitution. State v. Templeton, 148 Wn.2d 193,207,59 P.3d 632
(2002). Under the Fifth Amendment, the right to counsel is ancillary to the privilege
against self-incrimination during custodial interrogation. "The Fifth Amendment right to
counsel exists solely to guard against coercive, and therefore unreliable, confessions
obtained during in-custody interrogation." State v. Stewart, 113 Wash. 2d 462, 478, 780
P.2d 844 (1989). The court fashioned a practical rule in Miranda, 384 U.S. 436, to
ensure the integrity of the Fifth Amendment and to define the safeguards effective to
secure the privilege against self-incrimination, including advising the accused of his or
her right to counsel. Stewart, 113 Wash. 2d at 465-66. Custodial interrogation must be
preceded by advice to the accused that they have the right to remain silent and the right to
the presence of an attorney. Miranda, 384 U.S. at 479. "A suspect's Fifth Amendment
privilege against self-incrimination and the corresponding right to be informed attaches
when 'custodial interrogation' begins." Templeton, 148 Wash. 2d at 208.
The Sixth Amendment provides an accused the right to counsel at any critical stage
of a criminal prosecution. The Washington Criminal Rules expand this right by
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State v. Mulligan
guaranteeing the right to counsel "as soon as feasible after the defendant is taken into
custody, appears before a committing magistrate, or is formally charged, whichever
occurs earliest." erR 3.1 (b)( 1); Heinemann v. Whitman County, 105 Wash. 2d 796, 803,
718 P.2d 789 (1986).
"When a person is taken into custody that person shall immediately be advised of
the right to a lawyer. Such advice shall be made in words easily understood, and it shall
be stated expressly that a person who is unable to pay a lawyer is entitled to have one
provided without charge." erR 3.l(c)(1). Miranda warnings are sufficient to advise a
defendant of his or her right to counsel under the Fifth Amendment and erR 3.1 (c)( 1) if
given as soon as a defendant is taken into custody and if the warnings adequately convey
to a defendant the right to contact counsel at any time. See Templeton, 148 Wash. 2d at 218­
A person in custody who wants a lawyer shall, at the earliest opportunity, "be
provided access to a telephone, the telephone number of the public defender or official
responsible for assigning a lawyer, and any other means necessary to place the person in
3 Timing requirements differ between Miranda warnings and the erR 3.1 right to
counsel. Law enforcement is required to inform a defendant of the right to counsel under
erR 3.1 (b) as soon as a person is taken into custody, when he or she appears before a
committing magistrate, or when he or she is formally charged, whichever occurs earliest.
erR 3.1(b)(I). In comparison, Miranda warnings are required when police begin
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No. 32998-4-III
State v. Mulligan
communication with a lawyer." CrR 3.1 (c )(2). The opportunity to contact counsel under
CrR 3.1 (c)(2) is activated only after the accused requests an attorney. State v.
Kirkpatrick, 89 Wash. App. 407, 413 n.2, 948 P .2d 882 (1997). CrR 3.1 (c )(2) goes further
than simply informing a defendant of the right to counsel under Miranda. Id. at 413. The
rule provides a meaningful opportunity for a defendant to actually contact an attorney. Id.
Once requested, law enforcement must make reasonable efforts to connect the accused
with an attorney. Id. at 414.
Providing the right to contact an attorney at the earliest opportunity does not
always mean that law enforcement must allow a defendant to contact an attorney
immediately upon request. State v. Mullins, 158 Wash. App. 360, 370, 241 P.3d 456
(2010). In some circumstances, like during pre booking procedures, the earliest
opportunity may arise sometime after the request is made. Id.
A defendant's request for an attorney must be unequivocal. State v. Piatnitsky,
170 Wn. App. 195,213,282 P.3d 1184 (2012), aft'd, 180 Wn.2d 407,325 P.3d 167
(2014), cert. denied, 135 S. Ct. 950 (2015). To be unequivocal, the defendant must
sufficiently and clearly articulate his or her desire to have counsel present so that a
reasonable police officer under the circumstances would understand the statement to be a
custodial interrogation. Templeton, 148 Wash. 2d at 208.
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State v. Mulligan
request for an attorney. Id. at 214. A defendant does not need to use a special
combination of words to make an unequivocal request for an attorney. Id. at 215. "[T]he
context of an accused's statements to police--inc1uding the accused's behavior and the
scope of the accused's statements-must be considered in determining whether the
accused invoked his or her rights." Id. at 216. Where an accused makes an ambiguous or
equivocal statement regarding the invocation of his or her rights, law enforcement
officers have no obligation to ask clarifYing questions or to cease the interrogation. Id. at
214.
The proper remedy for violation of the right to counsel under erR 3.1 is
suppression of evidence acquired after the violation. City ofSpokane v. Kruger, 116
Wash. 2d 135, 147,803 P.2d 305 (1991). However, because the rights provided in erR 3.1
are not constitutional in nature, the nonconstitutional harmless error test is applied to
determine within a reasonable probability whether the verdict would have been the same
had the error not been made. State v. Jaquez, 105 Wash. App. 699, 716, 20 PJd 1035
(2001).
In Kirkpatrick, the court held that Mr. Kirkpatrick did not waive his erR 3.1 right
to an attorney when he voluntarily answered police questions three hours after requesting
an attorney and receiving Miranda warnings. Kirkpatrick, 89 Wash. App. at 415. The
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State v. Mulligan
court found that the police did not provide Mr. Kirkpatrick the right to contact an attorney
even though opportunity was available; i.e., the request was made during normal working
hours and at a police station, where presumably procedures existed for contacting defense
counsel. Id. The court acknowledged that a defendant can waive the right to counsel by
voluntarily speaking to law enforcement before the earliest opportunity to contact counsel
can be provided. Id. at 415-16. However, in Mr. Kirkpatrick's situation, the State did not
prove that it made a reasonable effort to allow Mr. Kirkpatrick to contact an attorney or
that Mr. Kirkpatrick made a valid waiver before the earliest opportunity arose. Id. at 416.
The court reasoned, "To hold otherwise would allow the State to benefit by its own
failure to perform its duty under erR 3.1 (c)(2)." Id. at 415-16.
The Kirkpatrick court also held that a valid waiver under Miranda does not serve
the same purpose as a waiver under erR 3.1. Id. at 413. The court found that erR 3.1
was designed to provide a meaningful opportunity to contact a lawyer, while Miranda "is
designed to prevent the State from using presumptively coerced and involuntary
statements against criminal defendants." Id. at 413-14.
Ms. Mulligan repeatedly yelled, "Lawyer! Lawyer!" for two minutes after she hit
a police officer and was forcibly detained. The State argues that Ms. Mulligan's request
was vague because she could have been sending a veiled message to the arresting officers
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State v. Mulligan
that she intended to sue. We need not determine whether her shouts were veiled threats
or an exercise of her right to counsel: if the trial court erred in not excluding Ms.
Mulligan's statements made in the hospital, we conclude that any error was harmless.
The rights provided in CrR 3.1 (c )(2) are not of constitutional origin; thus we apply
the nonconstitutional harmless error test. State v. Greer, 62 Wash. App. 779, 790 n.4, 815
P .2d 295 (1991). A violation of CrR 3.1 is harmless if there is no reasonable probability
that the error materially affected the outcome of the trial. Templeton, 148 Wash. 2d at 220.
Ms. Mulligan contends that without her admissions at the hospital, there is no
evidence that she intended to assault Ms. Kenan and Officer Butts. Considering her level
of intoxication, she contends that there is no evidence that she was acting rationally or
with any thought about her actions or their consequences.
While it is clear that Ms. Mulligan was intoxicated during the assaults, the
evidence of Ms. Mulligan's intent to assault is sufficient, even absent her admissions. We
conclude there is no probability that they materially affected the outcome of the trial.
During her first assault of Ms. Kenan inside the tavern, Ms. Kenan told Ms. Mulligan not
to bang on the window. As Ms. Kenan pulled Ms. Mulligan away from the window, Ms.
Kenan told Ms. Mulligan that she was just trying to prevent harm. Still, when released,
Ms. Mulligan turned to Ms. Kenan, looked at her, and hit her. Ms. Mulligan's
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deliberative pause showed that she intentionally hit Ms. Kenan because she was upset that
Ms. Kenan intervened.
Ms. Mulligan's second assault of Ms. Kenan showed a similar intent. Ms. Kenan
was attempting to help Ms. Mulligan when Ms. Mulligan stood up, realized it was Ms.
Kenan, swore at her, and punched her. Again, Ms. Mulligan showed deliberation just
prior to assaulting Ms. Kenan.
Last, Ms. Mulligan's assault of Officer Butts was also an intentional act. When
Ms. Mulligan saw Officer Butts approach the other officers and Mr. Mulligan, Ms.
Mulligan managed to stand up from the ground, made an angry growling sound, and
moved toward Officer Butts. Officer Butts attempted to get out of Ms. Mulligan's way,
but she continued to change her direction toward him before punching him. Ms.
Mulligan's actions could be viewed as an angry, intentional act against the officer in
response to the officer's questioning of her husband. Furthermore, Ms. Mulligan's ability
to request an attorney while outside the tavern is evidence that she could make conscious
and intentional choices at the time of the assaults.
Thus, even without Ms. Mulligan's statements at the hospital, the jury could infer
from the evidence that Ms. Mulligan was aware of her actions when she was committing
the assault. There is no reasonable probability that the error materially affected the
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outcome of the trial. We conclude that even if the trial court erred in not suppressing Ms.
Mulligan's statements at the hospital, the error was harmless.
B. Whether self-defense was ajury question on the charge offourth degree assault of
Ms. Kenan inside the bar
The State bears the burden of proving each and every element of a criminal offense
beyond a reasonable doubt. State v. Bennett, 161 Wash. 2d 303, 307,165 P.3d 1241 (2007).
The applicable standard of review is whether, after viewing all the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. State v. Joy, 121 Wash. 2d 333, 338, 851
P.2d 654 (1993). A challenge to the sufficiency of the evidence admits the truth of the
State's evidence and any reasonable inferences from it. State v. Goodman, 150 Wash. 2d
774, 781, 83 P.3d 410 (2004). All reasonable inferences from the evidence must be
drawn in favor of the State and interpreted most strongly against the defendant. State v.
Salinas, 119 Wn.2d 192,201,829 P.2d 1068 (1992).
Circumstantial and direct evidence are considered equally reliable. State v.
Thomas, 150 Wash. 2d 821, 874, 83 P.3d 970 (2004), abrogated in part on other grounds by
Crawfordv. Washington, 541 U.S. 36,124 S. Ct. 1353, 158 L. Ed. 2d 177 (2004).
"Credibility determinations are for the trier of fact and cannot be reviewed on appeaL"
State v. Camarillo, 115 Wash. 2d 60, 71, 794 P.2d 850 (1990).
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A defendant asserting a claim of self-defense bears the initial burden of producing
some evidence that his or her actions occurred in circumstances amounting to self-
defense. State v. Douglas, 128 Wash. App. 555, 562, 116 P.3d 1012 (2005). Once this
threshold is met and a jury is instructed on self-defense, the State bears the burden of
proving the absence of self-defense beyond a reasonable doubt. State v. Walden, 131
Wn.2d 469,473,932 P.2d 1237 (1997). The absence of self-defense becomes another
element of the offense that the State must prove. State v. Woods, 138 Wash. App. 191, 198,
156 P.3d 309 (2007).
The jury must assess the self-defense evidence from the perspective of a
reasonably prudent person standing in the defendant's shoes, knowing all the defendant
knows and seeing all the defendant sees. State v. Janes, 121 Wn.2d 220,238,850 P.2d
495 (1993). "Courts must inform the jury that the self-defense standard incorporates both
objective and subjective elements: the subjective portion requires the jury to stand in the
defendant's shoes and consider all the facts and circumstances known to the defendant,
while the objective portion requires the jury to determine what a reasonably prudent
person similarly situated would do." Woods, 138 Wash. App. at 198. The self-defense
instructions properly informed the jury, in part, that "[t]he use of force upon or toward the
person of another is lawful when used by a person who reasonably believes that he is
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about to be injured and when the force is not more than is necessary." Clerk's Papers at
72.
Here, drawing all reasonable inferences in favor of the State and most strongly
against Ms. Mulligan, sufficient evidence allowed the jury to determine the presence or
absence of self-defense. A reasonably prudent person in Ms. Mulligan's position would
have known that Ms. Kenan was not attempting to injure her. Ms. Kenan repeatedly
asked Ms. Mulligan to stop banging on the window. As Ms. Kenan pulled Ms. Mulligan
away from the window, she told Ms. Mulligan, "Stop it; I'm just trying to make sure you
don't break the window." 1 RP at 63. Ms. Kenan immediately released Ms. Mulligan as
soon as she was away from the window. A reasonably prudent person in Ms. Mulligan's
situation would not have seen Ms. Kenan's acts as an attempt to injure. Therefore, a
reasonable juror could find from the evidence that Ms. Mulligan did not consider Ms.
Kenan's acts an attempt to injure when Ms. Mulligan punched Ms. Kenan. After Ms.
Kenan successfully pulled Ms. Mulligan away from the window, Ms. Mulligan turned
around, looked Ms. Kenan in the face, and then punched her. Ms. Kenan did not display
aggressive behavior and testified that Ms. Mulligan knew whom she was hitting. A
reasonable juror could conclude that Ms. Mulligan hit Ms. Kenan because she was angry
at her for interfering and not because of a fear of injury. We conclude that the State
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presented sufficient evidence to allow the jury to detennine the presence or absence of
self-defense. Affinn.
A majority of the panel has detennined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Lawrence-Berrey, J.
WE CONCUR:
~)~~"'----
Brown, J.
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