State Of Washington, V Jasper Levi Phillips ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 83433-9-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
JASPER LEVI PHILLIPS,
Appellant.
APPELWICK, J. — A jury convicted Phillips of multiple counts after a brutal
home invasion. Phillips contends the court erred by admitting his statements to
police officers and two notes allegedly passed to his coconspirator in the jail.
Phillips’s statements to police officers were properly admitted, because he did not
unequivocally revoke his waiver of his right to silence. However, the trial court
erred by admitting his notes from the jail. The State argued these notes served as
a basis for the jury to find as an aggravating circumstance that Phillips showed an
egregious lack of remorse. We affirm the convictions, but reverse the aggravating
circumstance finding and remand for resentencing.
FACTS
In the early hours of the morning, Jasper Phillips and his girlfriend Clara
Rood entered Robert Pullman’s home. Pullman, Rood’s stepfather, was sleeping.
He awoke to blows to his head. Phillips and Rood beat Pullman with a metal object
and then duct taped him to an office chair. Phillips and Rood spent about two
Citations and pin cites are based on the Westlaw online version of the cited material.
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hours going through the house and gathering various items and loading them into
Pullman’s two trucks. Then Phillips and Rood rolled Pullman, still taped to the
chair, into the bathroom. They closed him in the bathroom and secured the door
with a wire so Pullman could not open it. Phillips and Rood left in Pullman’s trucks.
After the pair left, Pullman managed to free an arm, reach for his moustache
scissors, and cut himself free from the tape. He was able to pull the door loose
from the wire. After escaping, Pullman discovered that Phillips and Rood had cut
the phone lines. He walked to the neighbors’ house, arriving at their door bleeding
profusely from his head with large wounds on his arms. The neighbors originally
thought Pullman had been attacked by a bear.
The police were alerted to the incident. A sheriff’s deputy saw Phillips
driving one of Pullman’s stolen vehicles. The deputy activated his lights and sirens
to stop the vehicle. Rather than yield, the truck increased its speed and led the
deputy on a chase. The truck crashed into a van and rolled. Phillips attempted to
flee the scene but was apprehended.
The State charged Phillips with two counts of theft of a motor vehicle and
one count each of attempted murder in the first degree, assault in the first degree,
robbery in the first degree, kidnapping in the first degree, burglary in the first
degree, and identity theft in the first degree.
Prior to the trial, the court conducted a CrR 3.5 hearing to determine the
admissibility of the statements Phillips made to a detective after his arrest. The
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detective testified that he took Phillips to an interview room and read his Miranda1
warnings. Phillips said that he understood his rights and began talking about the
car chase and accident. When the detective asked about the events at Pullman’s
house, Phillips asked something similar to, “You mean you could go get me an
attorney right now if I wanted one?” The detective responded that Phillips had the
right to an attorney if he wished. Phillips then went on to describe the incident at
Pullman’s house.
Phillips testified that he was taken to the hospital and given intravenous pain
medication that made everything “a little blurry.” Phillips was then transported to
jail and questioned. According to Phillips, he asked for an attorney but one was
not provided. He testified that he had memory issues and that events of that day
were “very fuzzy.” But, requesting an attorney “was one of the things that stands
out” in his memory.
The trial court concluded that Phillips understood his rights and intelligently
and voluntarily waived his right to remain silent. The court also determined that
Phillips did not make an unequivocal invocation of his right to an attorney.
“Indicating that he understood his rights and had asked if he could have the
attorney right now and being advised again that he did have a right to an attorney
is not an unequivocal invocation of his right to counsel in this case.” The trial court
ruled Phillips’s statements admissible.
1 Miranda v. Arizona, 384 U.S. 436, 461, 86 S. Ct. 1602, 16 L. Ed. 2d 694(1966).
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A jury acquitted Phillips of attempted murder in the first degree but convicted
him of the other charges. The jury also returned special verdicts finding Phillips
armed with a deadly weapon for several of the charges and that he demonstrated
“an egregious lack of remorse” on the first degree kidnapping charge.
The trial court sentenced Phillips to the top end of the sentencing range on
every offense. Based on the egregious lack of remorse aggravator, the trial court
imposed an exceptional sentence of life in prison for the kidnapping conviction.
The total sentence amounted to life plus 349 months of incarceration.
Phillips appeals.
DISCUSSION
I. Right to Counsel
Phillips argues that he made an unequivocal request for counsel and the
trial court erred by ruling his subsequent statements to police were admissible.
Phillips challenges the trial court’s findings that his statements were voluntary and
did not amount to a clear and unequivocal invocation of his rights.
The federal and Washington State Constitutions guarantee the right against
self-incrimination. U.S. CONST. amends V, VI, XIV; W ASH. CONST. art. I, § 9. Before
any custodial interrogation, a suspect must be advised of their Miranda rights to
silence and an attorney. State v. Piatnitsky, 180 Wn.2d 407, 412, 325 P.3d 167(2014). “The defendant may waive this right, but there can be no questioning if he
‘indicates in any manner or at any stage of the process that he wishes to consult
with an attorney before speaking.’” State v. Nysta, 168 Wn. App. 30, 41, 275 P.3d
1162 (2012) (emphasis omitted) (quoting Miranda v. Arizona, 384 U.S. 436, 444-
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45, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)). A suspect may request an attorney
at any time. State v. Radcliffe, 164 Wn.2d 900, 906, 194 P.3d 250 (2008). But,
once the right to counsel has been waived, the request for an attorney must be
explicit. Id. “[T]he suspect ‘must articulate his desire to have counsel present
sufficiently clearly that a reasonable police officer in the circumstances would
understand the statement to be a request for an attorney.’” Nysta, 168 Wn. App.
at 41 (quoting Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 129 L.
Ed. 2d 362 (1994)).
In reviewing a trial court’s decisions after a CrR 3.5 hearing on the
admissibility, we review the findings of fact to determine if they are supported by
substantial evidence. State v. Gasteazoro-Paniagua, 173 Wn. App. 751, 755, 294
P.3d 857 (2013). We review de novo whether the trial court’s conclusions of law
are properly derived from the findings of fact. Id.Phillips contends the trial court erred in the finding of fact that he “asked if
the Detective would be able to find an attorney for him” and the conclusion of law
that it “was not a clear and unequivocal invocation of his rights.” Phillips claims he
demonstrated his intent to have representation by an attorney. But, the detective’s
testimony shows that Phillips posed a question along the lines of “‘If I wanted an
attorney right now, you could you go get me one?’” or “‘Could you get me an
attorney right now if I wanted one.’” The detective stated that he did not believe
Phillips was requesting an attorney: “I don’t believe that that was his intentions at
that point, that he wanted an attorney right now. He was simply asking me if I
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could reach out to one.” According to the detective, Phillips “didn’t imply that he
was wishing to speak with an attorney.”
Phillips did not demand an attorney. Rather, he posed a question or
hypothetical to the detective. This was not a clear and unequivocal request for
counsel. The trial court did not err in concluding that Phillips properly waived his
right to counsel and did not subsequently invoke it.
II. Kidnapping in the First Degree
Phillips contends that the State presented insufficient evidence to convict
him of kidnapping in the first degree.
In a criminal prosecution, the State must prove all elements of the charged
crime beyond a reasonable doubt. State v. Armstrong, 188 Wn.2d 333, 343, 394
P.3d 373 (2017). “The test for determining the sufficiency of the evidence is
whether, after viewing the evidence in the light most favorable to the State, any
rational trier of fact could have found guilt beyond a reasonable doubt.” State v.
Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency
admits the truth of the State’s evidence and we draw all reasonable inferences
from the evidence in favor of the State. Id.According to the jury instructions, to convict on the charge of first degree
kidnapping, the jury was required to find beyond a reasonable doubt that Phillips
intentionally abducted Pullman “to facilitate the commission of robbery in the first
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degree or flight thereafter” or “to inflict bodily injury.”2 The jury instructions defined
“abduct” as “to restrain a person by either secreting or holding the person in a place
where that person is not likely to be found or using or threatening to use deadly
force.”
Phillips argues that the State failed to present sufficient evidence to
demonstrate that he restrained Pullman for a purpose independent of the intent to
commit robbery. But, the Washington Supreme Court rejected this argument in
State v. Berg, explicitly stating, “[W]hen kidnapping and robbery are charged
separately, whether the kidnapping activity is incidental to the robbery is immaterial
to the sufficiency of the evidence of kidnapping.” 181 Wn.2d 857, 860, 337 P.3d
310 (2014). The fact that Phillips restrained Pullman in order to facilitate the
robbery does not impact the sufficiency of the evidence analysis.
The State presented evidence that Phillips and Rood duct taped Pullman to
the office chair and took items from around the house. They rolled the chair into
the bathroom and secured the door closed from the outside. Phillips and Rood
also cut the phone lines. This evidence was sufficient for the jury to find beyond a
2
The jury instruction is based on first degree kidnapping as established by
RCW 9A.40.020:
A person is guilty of kidnapping in the first degree if he or she
intentionally abducts another person with intent:
(a) To hold him or her for ransom or reward, or as a shield or
hostage; or
(b) To facilitate commission of any felony or flight thereafter;
or
(c) To inflict bodily injury on him or her; or
(d) To inflict extreme mental distress on him, her, or a third
person; or
(e) To interfere with the performance of any governmental
function.
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reasonable doubt that Phillips secreted Pullman in a place where he was not likely
to be in order to complete the robbery and getaway.
III. Egregious Lack of Remorse Aggravator
Phillips argues the State provided insufficient evidence for the jury to
conclude that he demonstrated an egregious lack of remorse which the trial court
relied on to impose an exceptional sentence.
The Sentencing Reform Act of 1981 allows for imposition of a sentence
outside the standard sentencing range for an offense if there are compelling
reasons. RCW 9.94A.535. Among those reasons is the aggravating circumstance
that “[t]he defendant demonstrated or displayed an egregious lack of remorse.”
RCW 9.94A.535(3)(q). The facts supporting the aggravating circumstance must
be proved to a jury beyond a reasonable doubt. RCW 9.94A.535(3), .537(3).
“[L]ack of remorse must be of an aggravated or egregious character to constitute
an aggravating factor.” State v. Russell, 69 Wn. App. 237, 251, 848 P.2d 743(1993).
In reviewing the sufficiency of the evidence for an aggravating factor, we
use the same standard of review for the sufficiency of the elements of the crime.
State v. Zigan, 166 Wn. App. 597, 601, 270 P.3d 625 (2012). “We review the
evidence in the light most favorable to the State to determine whether any rational
trier of fact could have found the presence of the aggravating circumstances
beyond a reasonable doubt.” Id. at 601-02. Here, the court instructed the jury that
the egregious lack of remorse aggravator required that “the defendant’s words or
conduct demonstrated extreme indifference to harm resulting from the crime or
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were affirmatively intended to aggravate that harm.” The jury could consider,
“whether the defendant’s words or conduct (a) increased the suffering of others
beyond that caused by the crime itself; (b) were of a belittling nature with respect
to the harm suffered by the victim; or (c) reflected an ongoing indifference to such
harm.”
In support of the aggravating factor, the State relied on two jail notes
allegedly written between Phillips and Rood during their time in jail. The notes
include statements that the writer should have just killed Bob and was sorry that
they did not. In closing arguments, the State told the jury
I would argue the defendant saying in the jail note when talking about
whether they were going to kill Mr. Pullman, the defendant said,
“Sorry we didn’t.” Sorry we didn’t, meaning things would have been
a lot better off for him if they’d killed Mr. Pullman and gotten away
with it. That’s someone who has no remorse for what they did.
The jail notes provided the only evidence toward the egregious lack of remorse
aggravator.3
Phillips argues the notes were not sufficiently identified or authenticated
as required by ER 901(a).
We review a trial court’s admission of evidence for abuse of discretion.
State v. Bradford, 175 Wn. App. 912, 927, 308 P.3d 736 (2013). A trial court
abuses its discretion when its decision is manifestly unreasonable or based on
untenable ground. Id. Application of the wrong legal standard is an abuse of
discretion. State v. Salgado-Mendoza, 189 Wn.2d 420, 427, 403 P.3d 45 (2017).
The jury heard testimony that Phillips told the detective, “‘[I]f this morning
3
had gone worse for Bob it would have been better for us.’” The State did not raise
this statement during closing arguments.
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ER 901(a) provides, “The requirement of authentication or identification as
a condition precedent to admissibility is satisfied by evidence sufficient to support
a finding that the matter in question is what its proponent claims.” This requirement
is satisfied “if it introduces sufficient proof to permit a reasonable juror to find in
favor of authenticity or identification.” State v. Payne, 117 Wn. App. 99, 106, 69
P.3d 889 (2003). The purpose of the rule is to establish a threshold requirement
to ensure that evidence is what it purports to be. Id.Over Phillips’s objection, the trial court admitted two notes allegedly written
between Phillips and Rood in the jail. The court stated, “I think they become a part
of the case file. You have had them for some time. I’ll allow them to come in.”
The court’s ruling alludes to ER 904, which allows for certain documents to be
admissible without further identification if they are offered more than 30 days
before trial and unless objection is made within 14 days. But, ER 904 applies only
in civil cases. ER 904(a). To the extent that the trial court considered the length
of time the jail notes had been in the case file as a foundation for admission, it
relied on the incorrect rule. Application of the wrong legal standard is an abuse of
discretion. Salgado-Mendoza, 189 Wn.2d at 427. The trial court made no
assessment of the authenticity of the documents as required under ER 901.
Admission of the jail notes was an abuse of discretion.
Because the jail notes provided the sole foundation for the egregious lack
of remorse aggravator, their admission was prejudicial error. See State v. Tharp,
96 Wn.2d 591, 599, 637 P.2d 961 (1981) (“[E]rror is not prejudicial unless, within
reasonable probabilities, the outcome of the trial would have been materially
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affected had the error not occurred”). Without the jail notes, the evidence is
insufficient for the jury to have found the presence of the aggravating circumstance
beyond a reasonable doubt. Reversal and remand for resentencing is required.
Upon resentencing, the trial court should consider whether to strike the community
custody supervision fees.
We affirm the convictions, but reverse the aggravating circumstance finding
and remand for resentencing.
WE CONCUR:
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