State Of Washington v. Timothy A. Vaivaimuli ( 2020 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 79248-2-I
)
Respondent, ) DIVISION ONE
)
v. ) UNPUBLISHED OPINION
)
TIMOTHY AFAMASAGA VAIVAIMULI, )
)
Appellant. )
)
ANDRUS, A.C.J. — Timothy Afamasaga Vaivaimuli challenges his conviction
for first degree robbery, contending he unequivocally asserted his right to remain
silent following his Miranda 1 warnings and, as a result, the trial court erred by
admitting statements he made to detectives. We affirm.
FACTS
On May 1, 2018, Vaivaimuli stole two pairs of shoes from the Snohomish
Fred Meyer. As he ran to the getaway car, he dropped his cell phone, which broke
into pieces. When Vaivaimuli bent down to pick up the pieces of his broken phone,
he put the shoes on the ground. Fred Meyer’s loss prevention officer, Jeff Wiley,
approached Vaivaimuli, pointed to the badge on his belt, and told Vaivaimuli he
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Citations and pin cites are based on the Westlaw online version of the cited material.
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was in security. Vaivaimuli grabbed for the shoes as Wiley ran for them, knocking
them out of Vaivaimuli’s hands. Vaivaimuli punched Wiley in the face—breaking
his nose and his glasses and causing other injuries to his face. Vaivaimuli then
gathered the shoes, got in the car, and drove away.
Based on security footage, police identified the vehicle in which Vaivaimuli
fled and contacted its registered owner, Kyle Crumpton. Crumpton admitted he
was driving the vehicle when Vaivaimuli stole the shoes and identified Vaivaimuli
by his license photo.
Police arrested Vaivaimuli, and the State charged him with one count of first
degree robbery. At the CrR 3.5 suppression hearing, Detective Barker testified
that after arresting Vaivaimuli and reading the Miranda warnings, Vaivaimuli
“responded in the affirmative” when asked if he understood his rights. When
Detective Barker asked if Vaivaimuli would be willing to speak to him, Vaivaimuli
said “not really,” but “then he immediately followed that by asking a question about
what this was about.” Detective Barker remembered that Vaivaimuli was smiling
as he said this, and he took that as an indication that Vaivaimuli was willing to talk
to him. Detective Grieve testified that he found Vaivaimuli’s “not really” response
ambiguous.
Detective Barker then asked Vaivaimuli why he thought he was being
arrested. Vaivaimuli “said something to the effect of the thing at Fred Meyer.”
According to Detective Barker, Vaivaimuli’s response was instant—a “normal
conversational pace.” Detective Barker continued asking Vaivaimuli questions
about the robbery at Fred Meyer; Vaivaimuli continued to respond and never
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indicated that he wanted to end the conversation or stop answering the detective’s
questions.
The trial court admitted Vaivaimuli’s post-Miranda statements, concluding
that Vaivaimuli did not unequivocally invoke his right to remain silent and that his
“demeanor of smiling[,] saying ‘not really[,]’ and immediately [initiating
a] . . . conversation [with the arresting detectives] by asking, ‘what is this
about?’ . . . [amounted to] a valid waiver implied by continued conversation.”
The jury convicted Vaivaimuli as charged. He appeals.
ANALYSIS
Vaivaimuli argues the trial court erred when it concluded that his statement
to Detective Barker—that he did “not really” want to talk—was equivocal. He also
argues the trial court erred in concluding he impliedly waived his right to remain
silent by discussing the charged crime with detectives. Because we conclude that
Vaivaimuli’s decision to engage Detective Barker in a conversation constituted an
implied waiver of his right to remain silent, we need not determine whether his
initial statement of “not really” was unequivocal.
To safeguard a person’s Fifth Amendment right against self-incrimination,
before any custodial interrogation, “a suspect must be informed that ‘he has the
right to remain silent, that anything he says can be used against him in a court of
law, that he has the right to the presence of an attorney, and that if he cannot afford
an attorney one will be appointed for him prior to any questioning.’” State v.
Piatnitsky, 180 Wash. 2d 407, 412, 325 P.3d 167 (2014) (quoting Miranda v. Arizona,
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384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)). Miranda rights must
be invoked unambiguously. Id. at 413.
In this case, we need not determine if Vaivaimuli unequivocally asserted his
right to remain silent. The trial court concluded that Vaivaimuli, by voluntarily
engaging the detectives in a conversation after expressing his understanding of
his rights, impliedly waived his right to remain silent. We agree.
Even when a defendant unequivocally asserts a right to remain silent, that
right can be waived by reinitiating a conversation with police. In re Pers. Restraint
of Cross, 180 Wash. 2d 664, 682, 327 P.3d 660 (2014), abrogated on other grounds
by State v. Gregory, 192 Wash. 2d 1, 427 P.3d 621 (2018). Our courts have found
“[i]mplied waiver[s] . . . where the record reveals that a defendant understood his
rights and volunteered information [and] where the record shows that a defendant’s
answers were freely and voluntarily made without duress, promise[,] or threat and
with a full understanding of his constitutional rights.” State v. Terrovona, 105
Wash. 2d 632, 646-47, 716 P.2d 295 (1986); accord Berghuis v. Thompkins, 560 U.S.
370, 385, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010) (law generally presumes
“that an individual who, with a full understanding of his or her rights, acts in a
manner inconsistent with their exercise has made a deliberate choice to relinquish
the protection those rights afford”). We will infer a waiver when a defendant
voluntarily discusses the charged crime with police officers and indicates an
understanding of his rights. State v. Ellison, 36 Wash. App. 564, 571, 676 P.2d 531
(1984).
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Waiver is determined on the basis of the whole record before the court.
State v. Gross, 23 Wash. App. 319, 324, 597 P.2d 894 (1979); accord North Carolina
v. Butler, 441 U.S. 369, 374-75, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979) (“[T]he
question of waiver must be determined on ‘the particular facts and circumstances
surrounding that case, including the background, experience, and conduct of the
accused.’”) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L.
Ed. 1461 (1938)). The State bears the burden of showing, by a preponderance of
the evidence, that Vaivaimuli understood his rights and voluntarily waived them.
State v. Radcliffe, 164 Wash. 2d 900, 905-06, 194 P.3d 250 (2008). Because
Vaivaimuli has not assigned error to any of the trial court’s findings, we treat those
findings as verities on appeal and limit our review to whether the trial court reached
proper conclusions of law from its findings. State v. I.B., 187 Wash. App. 315, 320,
348 P.3d 1250 (2015).
Here, the trial court found that Vaivaimuli understood his right to remain
silent. Nevertheless, after being informed of his rights, Vaivaimuli initiated the
conversation with Detective Barker by asking why he was being arrested—and he
thereafter volunteered information about the charged crime. The trial court found
that Vaivaimuli “made statements [to the detectives] knowingly, voluntarily, and
without threats, promises, or coercion.” Under Cross, Terrovona, and Ellison, we
infer that Vaivaimuli waived his right to remain silent because his conduct was
inconsistent with exercising that right and demonstrated a deliberate choice to
relinquish the protection that right affords. See Gross, 23 Wash. App. at 324 (court
entitled to infer waiver from defendant’s understanding of his rights and from the
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voluntariness of his conversation with the officers). We conclude the trial court’s
findings of fact support its conclusion that Vaivaimuli impliedly waived his right to
remain silent. Accordingly, the trial court did not err by admitting Vaivaimuli’s post-
Miranda statements.
Affirmed.
WE CONCUR:
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