State Of Washington v. Andrew Steele ( 2014 )


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  •                                                                                        FILED.
    COURT        F APPEALS
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    2014 DEC : 2 AM 8: 58
    DIVISION II
    STATE OF WASHINGTON
    STATE OF WASHINGTON,                                                          OYNo.   448 -      8 -II
    D'      1`` Y
    Respondent,
    ANDREW STEELE,                                                           UNPUBLISHED OPINION
    Appellant.
    MELNICK, J —     Andrew Steele appeals from his conviction for unlawful possession of a
    firearm in the first degree, possessing a stolen firearm, and possessing stolen property in the third
    degree.    Steele argues that the police violated his Mirandal rights when they contacted and spoke
    with him about a missing firearm and other items and the trial court abused its discretion by
    him for       Drug   Offender   Sentencing      Alternative ( DOSA)
    categorically refusing to        consider                a
    sentence. 2 We reject Steele' s claims and affirm his convictions and sentence.
    FACTS
    While Officer Joshua Deroche ate dinner somebody broke into his truck. The suspect stole
    a backpack containing Deroche' s uniform, badge, personal handgun, and several assault rifle
    ammunition magazines. The handgun was loaded and operational.
    Andrew Steele                 his friend, James Baldwin.            Steele offered to
    The   following day,                        visited
    show   Baldwin    a " secret."   Report   of   Proceedings ( RP) ( Mar. 19, 2013) at 124. Steele then showed
    Baldwin a gun and a backpack. The backpack contained two rifle magazines, a pair of binoculars,
    and a police    badge.    Steele claimed he had found the backpack and gun in some bushes in Fife.
    1 Miranda v. Arizona; 
    384 U. S. 436
    , 
    86 S. Ct. 1602
    , 
    16 L. Ed. 2d 694
     ( 1966).
    2
    RCW 9. 94A. 660.
    44840 -8 - II
    Baldwin told Steele to turn in the items, but Steele refused, stating that he planned to sell the gun
    and backpack. Baldwin contacted the police the next morning.
    Detective Stuart Hoisington visited Steele' s house, contacted Steele' s wife by phone, and
    attempted      to   call   Steele'   s cell phone   twice.   The second time, Hoisington successfully contacted
    Steele   by   phone.       Hoisington told Steele " there [ were]     some    missing items ...         and that his name
    had   come     up in the investigation        as someone who might     be   able   to   help us   locate them." RP ( Mar.
    19, 2013) at 35. Hoisington never told Steele that he had to meet with the police or that he would
    be arrested if he failed to do so. Steele agreed to meet with police at a grocery store.
    Hoisington, accompanied by Detective Erik Timothy, went to meet Steele. Both detectives
    were   in   plain clothes, although           their badges and weapons      were visible.         Several patrol cars were
    stationed in the area, but not in sight.
    Steele arrived at the grocery store after the detectives and called Hoisington' s phone to tell
    the detectives his location.             Steele met the detectives and admitted he had been in possession of
    the   stolen    items, but that he       no   longer had them. Steele offered to show the police where he had
    last seen the missing items, at a truck stop in Fife. The detectives frisked Steele and placed him in
    Timothy' s unmarked car. Steele was not handcuffed or otherwise restrained during this time, and
    Timothy' s car did not contain a partition or cage.
    Steele directed the detectives to the truck stop. He told the police the items were in a bush.
    The detectives took turns searching the bushes, with one detective always staying in the car with
    Steele. The search did not turn up the stolen property.
    Following the search, the detectives asked Steele if he would be willing to accompany them
    to police headquarters and make a formal statement. Steele agreed to do so. At the station, Steele
    received Miranda warnings for the first time. Steele stated that he understood his rights and wished
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    44840 -8 -II
    to   answer   the   police' s questions.              Steele never asked to leave or to speak to an attorney and never
    invoked his right to remain silent.
    After he         gave    his   statement,          Steele   was placed        in    a   holding       cell.   Approximately 15 to 20
    minutes      later, the     police asked         Steele if he         could get     the     gun and       badge back. Steele said that he
    could " probably get the gun and badge back" within 48 hours and asked the police if there was a
    reward for the recovery of the gun. RP ( Mar. 20, 2013) at 209.
    PROCEDURAL HISTORY
    The State charged Steele with unlawful possession of a firearm in the first degree,
    possessing a stolen firearm, and possessing stolen property in the third degree. Prior to trial, Steele
    moved    to suppress " any and                all statements obtained             by   law enforcement             of the   defendant." Clerk' s
    Papers ( CP)        at    10.     The court held a confession hearing pursuant to CrR 3. 5, at which Steele
    testified that      he    understood          he did        not   have to    speak     with the detectives.               He explained that he
    spoke with them because he was " actually trying to do what [he] believe[ d] was the right thing at
    the time."      RP ( Mar. 19, 2013)                   at   78.     Steele testified that the detectives did not accuse him of
    doing    anything wrong; "[             t]hey just said [ he] possibly knew where some missing items were" and
    Steele   wanted          to "   clear   the   air."        RP ( Mar. 19, 2013),         at   80.     Steele further testified that he had
    heard the Miranda warnings many times before and knew what his Miranda rights were.
    The trial        court entered written                  findings   of   fact that: ( 1) Steele voluntarily agreed to meet
    with   the   detectives; (        2) Steele voluntarily agreed to show the detectives where he claimed to have
    seen   the    stolen      items; ( 3) the detectives properly                    advised         Steele   of   his Miranda     rights; ( 4)   Steele
    knowingly, voluntarily and intelligently waived those rights; and ( 5) the detectives did not coerce
    Steele into saying anything to the police.
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    44840 -8 -II
    Based on these findings of fact, the trial court entered the following written conclusions of
    law:
    1.   The defendant    was   not   in " custody" for Miranda         purposes,   i.e.,   having his
    freedom curtailed to the degree associated with a formal arrest, until he was
    handcuffed and detained after his formal interview at the police station.
    2. Prior to that point, the defendant' s interaction with law enforcement was a
    voluntary, consensual, and cordial social contact that was free of coercion. .
    3. Once advised of his Miranda rights, the defendant knowingly, voluntarily, and
    intelligently waived those rights and spoke with law enforcement.
    CP at 72. A jury returned guilty verdicts on all three counts.
    At his sentencing hearing, the State recommended a sentence of 159 months, the low end
    of the sentencing range.       Steele   requested   a    DOSA       sentence.   The trial court denied Steele' s
    request, explaining that:
    I have a creed that I believe people can change you, but I also believe that
    people who    have   offender[ ] [   scores] that exceed nine shouldn' t get the benefits of
    leniency. Mr. Steele knew what his issues were. He knew when he asked for the
    last DOSA that if he didn' t      change   his   ways ...    he' ll be right back in the system.
    With an offender score nine plus, if you want to be an addict and you want
    to use, then you need to find a way to do that without stealing from other people or
    victimizing   other people. You haven' t done that. I don' t feel an urge to give you
    a DOSA sentence to avoid a lengthy prison term.      The prison term is caused by
    your offender score, and those are items that you created for yourself.
    RP ( Apr. 30, 2013)    at   391 - 92.   The court followed the State' s recommendation and sentenced
    Steele to 159 months in prison. Steele timely appealed his conviction and sentence.
    ANALYSIS
    I.       MIRANDA RIGHTS
    Steele argues that the trial court erroneously admitted his pre- and post -Miranda warning
    statements in violation of his right against self -incrimination. The State argues that until the police
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    44840 -8 - II
    handcuffed Steele, he was not in custody and that the trial court correctly admitted the statements.
    We agree with the State and affirm the trial court.
    A.       Standard of Review
    The Fifth Amendment to the United States Constitution3 and article I, section 9 of the
    Washington Constitution4 guarantee a defendant' s right against self -incrimination. State v. Easter,
    
    130 Wn.2d 228
    , 235, 
    922 P. 2d 1285
     ( 1996). The two provisions are given the same interpretation.
    Easter, 
    130 Wn.2d at 235
    .     In order to effectuate these provisions, law enforcement must advise a
    suspect of his Miranda rights whenever the suspect is subjected to a custodial interrogation by an
    agent of     the State. State     v.   Sargent, 
    111 Wn.2d 641
    , 647, 
    762 P. 2d 1127
     ( 1988).                 Here, the issue
    involves custody.
    Whether a suspect is in custody is a mixed question of law and fact. State v. Solomon, 
    114 Wn. App. 781
    , 787, 
    60 P. 3d 1215
     ( 2002) (           citing Thompson v. Keohane, 
    516 U.S. 99
    , 112 -13, 
    116 S. Ct. 457
    , 
    133 L. Ed. 2d 383
     ( 1995));                 cf.State v. Rankin, 
    151 Wn.2d 689
    , 709, 
    92 P. 3d 202
     (2004)
    whether or not a suspect            is   seized   by   police   is   a mixed question of   law   and   fact). Accordingly,
    we defer to the trial court' s findings of fact but review its legal conclusions de novo. This means
    that unchallenged findings of fact are verities on appeal, and where substantial evidence supports
    challenged      findings   of   fact, those facts        are   binding   on appeal.   State v. Broadaway, 
    133 Wn.2d 118
    , 131, 
    942 P. 2d 363
     ( 1997).              Substantial evidence is evidence sufficient to " persuade a fair -
    minded, rational person of            the truth   of    the   finding." State v. Hill, 
    123 Wn.2d 641
    , 644, 
    870 P. 2d 313
     ( 1994).      Yet, whether the facts indicate that the defendant was in custody is a legal question
    we review de novo. Solomon, 114 Wn. App. at 788 -89. We address both inquiries in turn.
    3"
    No   person ...   shall be compelled in any criminal case to be a witness against himself."
    4 " No person shall be compelled in any criminal case to give evidence against himself."
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    44840 -8 -II
    B.        Factual Inquiry
    Steele does not challenge the trial court' s findings that he " voluntarily agreed to meet with
    the detective" at the grocery store, that he affirmatively " called the detective" when he arrived, or
    that he " voluntarily agreed to show the detectives where he claimed that he had last seen the stolen
    police   property that        they   were    looking for."       CP      at   69, 70.     Unchallenged findings of fact are
    verities on appeal. Broadaway, 
    133 Wn.2d at 131
    .
    Steele       challenges      the trial     court' s   conclusion          of   law that his " interaction with law
    enforcement was a voluntary, consensual, and cordial social contact that was free of coercion."
    CP at 72. This putative conclusion of law is actually a finding of fact, and we analyze it as such.
    See Willener      v.    Sweeting,     
    107 Wn.2d 388
    , 394, 
    730 P. 2d 45
     ( 1986).                     We hold that the finding is
    supported by substantial evidence. The police never told Steele he had done anything wrong. The
    police never told Steele that he had to meet with them, or that he would be arrested if he failed to
    do so. Rather, Steele testified that he spoke with the police because he was " trying to do what [he]
    believe[ d]            the                        the time"    and   that     he   wanted   to "   clear   the   air."   RP ( Mar. 19,
    was          right   thing   at
    2013)    at   78, 80.    Therefore, as the trial court found and Steele did not contest, Steele voluntarily
    agreed to meet with the detectives at the grocery store. On the day of the meeting, Steele came to
    the parking lot and affirmatively contacted the police to let them know that he had arrived. Steele
    affirmatively volunteered the location of the truck stop where he claimed the stolen items were
    located, and offered to take the police there and show them.
    Steele did testify that the police knocked on his doors and windows during their initial
    attempt to contact him at his home, and that he feared the police would beat him up. But in light
    of the evidence that Steele voluntarily participated in the police' s search for the stolen items, a
    fair -minded, rational person could reject Steele' s bare assertion that he thought he would be beaten
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    44840 -8 -II
    up if he did not comply. See Hill, 
    123 Wn.2d at 644
    . We hold that the trial court' s findings were
    supported by substantial evidence.
    Steele   also challenges       the trial   court' s   finding    that " [ alt   no point ...   did anyone engage in
    any direct or implied threats, promises, or coercive conduct in order to get the defendant to ( a)
    meet for an interview, (b) go to the truck stop to show the detectives where he claimed he had left
    the   stolen     property,   or ( c) go   to the   police station    to give    a   formal taped interview." CP at 71. For
    the same reasons described above, substantial evidence existed for the trial court to conclude that
    the police did not coerce Steele into speaking with them. We hold that the challenged findings of
    fact are binding on appeal.
    C.        Legal Inquiry
    Custody exists only if a reasonable person in Steele' s position would have believed that he
    freedom                              formal              State v. Lorenz,
    custody " with the loss                         associated with a                  arrest."
    was    in   police                                   of
    
    152 Wn.2d 22
    , 37, 
    93 P. 3d 133
     ( 2004).
    Here, a reasonable person in Steele' s position would not have believed that he was in police
    custody      during the      search   for the    stolen    items.    Steele voluntarily agreed to meet with the police,
    affirmatively came forward to contact the police on the day of the meeting, and voluntarily agreed
    to    show    the detectives      where     he   claimed     the    stolen   items   could     be found.     Steele had not been
    accused of any wrongdoing and would not have been arrested if he had refused to cooperate.
    Steele' s freedom was not curtailed during his interactions with the police; instead, he cooperated
    with    the investigation of        his    own accord,      because he        wanted    to do the    right   thing. We hold that
    Steele was not in custody until the detectives took him to the police station and gave him Miranda
    warnings. '
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    44840 -8 -II
    Steele also argues that his pre- warning statements tainted his post- warning statement at the
    police station.     We reject this argument because Steele' s pre -warning statements were voluntary
    and not the product of custodial interrogation, and the trial court properly admitted Steele' s pre -
    warning statements. We hold that the police did not violate Steele' s Miranda rights, and we affirm
    his convictions.
    II.       DOSA
    Steele argues that the trial court failed to exercise its discretion when it categorically denied
    his request for a DOSA. The State argues that the trial court properly considered and rejected the
    DOSA. We agree with the State and affirm the trial court.
    A.       STANDARD OF REVIEW
    The DOSA program authorizes trial judges to sentence eligible, non -violent offenders to a
    reduced sentence, substance abuse treatment, and increased supervision in an attempt to help the
    offender recover from addiction. State v. Grayson, 
    154 Wn.2d 333
    , 337 -38, 
    111 P. 3d 1183
     ( 2005).
    Whether to      give a   DOSA is   a   decision left to the trial judge'   s   discretion. Grayson, 
    154 Wn.2d at 335
    .      The trial court' s decision will not be disturbed on appeal unless the court' s decision is
    unreasonable or     based   on untenable grounds or untenable reasons. '        State v. Dye,
    manifestly
    
    178 Wn. 2d 541
    , 548, 
    309 P. 3d 1192
     ( 2013) (          quoting In re Marriage ofLittlefield, 
    133 Wn.2d 39
    ,
    46 -47, 
    940 P. 2d 1362
     ( 1997)).
    Generally,    the DOSA sentencing decision is          not reviewable.     Grayson, 
    154 Wn.2d at
    338
    citing RCW 9. 94A.585( 1);           State   v.   Bramme,   
    115 Wn. App. 844
    , 850, 
    64 P. 3d 60
     ( 2003)).
    However, an offender may always challenge the procedure by which a sentence is imposed.
    Grayson, 
    154 Wn.2d at 338
    . Here, Steele asserts that the trial court failed to exercise its statutory
    discretion by categorically refusing to consider him for a DOSA.
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    44840 -8 -II
    B.           CONSIDERATION OF DOSA SENTENCE
    Although no defendant is entitled to an exceptional sentence below the standard range,
    every defendant is entitled to ask the trial court for such a sentence " and to have the alternative
    actually    considered."           Grayson, 
    154 Wn.2d at 342
    .    When a trial court categorically refuses to
    consider a DOSA, or refuses to consider a DOSA for a class of offenders, the trial court fails to
    exercise    discretion      and    is   subject      to   reversal.    Grayson, 
    154 Wn.2d at 342
    . For example, when a
    trial court denies a DOSA for the " primary reason" that the trial judge believes there is inadequate
    the                    the    court commits reversible error.        Grayson, 
    154 Wn.2d at 342
    .
    funding to       support           program,
    In Grayson, the trial court failed to consider the defendant' s individualized circumstances
    on   the   record.       
    154 Wn.2d at 342
    .     Rather, the only reason for denying the DOSA that the judge
    articulated was          the judge'     s   belief that there       were    insufficient funds. Grayson, 
    154 Wn.2d at 342
    .
    Here, in        contrast,   the judge took Steele'              s     particular    circumstances     into   account.   At Steele' s
    sentencing hearing, the State pointed out that Steele had already had multiple opportunities to
    engage in substance abuse treatment. The court reviewed notes from a previous conviction after
    which Steele had also asked for a DOSA.
    After taking this information into account, the court stated that:
    Mr. Steele knew what his issues were. He knew when he asked for the last
    DOSA that if he didn' t change his ways, and specifically the examiner said if he
    doesn' t stop hanging with people that get him to use once again and cause him to
    relapse,     he' ll be      right     back in the    system.          Those were prophetic words in 2007
    when they were spoken.
    RP ( Apr. 30, 2013)          at   391.          The court reviewed Steele' s history relating to addiction and crime,
    relied on that information, and made a determination on the record that Steele should not receive
    a   DOSA.        Although the court also stated that " I also believe that people who have offender[ ]
    scores]       that   exceed nine shouldn'             t get the benefits of leniency,"     there is no indication that Steele' s
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    44840 -8 -II
    offender score was    the primary   reason   the court   denied the DOSA. RP ( Apr. 30, 2013) at 391.
    The court expressly relied on Steele' s failure to take advantage of prior treatment opportunities
    and to heed the advice of his examiner in a previous case. We hold the trial court did not abuse its
    discretion by denying the DOSA. Therefore, we affirm his convictions and sentence.
    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 in accordance with RCW
    2. 06. 040, it is so ordered.
    We concur:
    r   A.C.   al i
    irgen, A.C. J.
    10