State Of Washington, V. Wayne Hyman Alpert ( 2022 )


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  •         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION ONE
    STATE OF WASHINGTON,                             )       No. 82960-2-I-I
    )
    Respondent,          )
    )
    v.                            )
    )       UNPUBLISHED OPINION
    ALPERT, WAYNE HYMAN,                             )
    DOB: 07/03/1957,                                 )
    )
    Petitioner.          )
    BOWMAN, J. — In Wayne Alpert’s first appeal, we held that the trial court
    erred when it admitted his statements about the charged incidents after
    unequivocally invoking his right to counsel. We remanded for retrial and directed
    the trial court to suppress the tainted statements related to the murder charge.
    But the trial court held another suppression hearing on remand, considered
    additional testimony about whether a violation occurred, and did not suppress
    any statements. Because our mandate was the law of the case and binding on
    the lower court on remand, we grant discretionary review.1
    FACTS
    We repeat the relevant facts set forth in our prior opinion as necessary for
    the issues we address below. See State v. Alpert, No. 79147-8-I (Wash. Ct. App.
    1 Although ordinarily decided by an order, we exercise our discretion under RAP 17.6(b)
    to explain our decision to grant discretionary review by an opinion. Minehart v. Morning Star
    Boys Ranch, Inc., 
    156 Wn. App. 457
    , 460, 
    232 P.3d 591
     (2010).
    Citations and pin cites are based on the Westlaw online version of the cited material.
    No. 82960-2-I/2
    Dec. 21, 2022) (unpublished), https://www.courts.wa.gov/opinions/pdf/
    791478.pdf.
    In 2018, the State charged Alpert with second degree assault of Jeremy
    Gredvig while armed with a firearm and second degree murder of Seaton Jeffry
    Baker while armed with a firearm, stemming from two separate incidents that
    occurred on the same day in June 2017. Alpert claimed self-defense as to both
    charges. At a CrR 3.5 hearing in 2018, defense counsel argued statements
    Alpert made to officers about the incidents after his arrest violated CrR 3.1
    because he had invoked his right to counsel. The trial court determined Alpert
    made an equivocal request for counsel and denied his motion to suppress the
    statements. At trial, the court denied Alpert’s request to provide a jury instruction
    that he had no duty to retreat in either incident. A jury convicted Alpert as
    charged.
    On appeal, we affirmed Alpert’s assault conviction. Alpert, No. 79147-8-I,
    slip op. at 22. But we remanded for retrial on the murder charge because the
    trial court erred by (1) refusing to instruct the jury that Alpert had no duty to
    retreat during his encounter with Baker2 and (2) admitting evidence tainted by a
    violation of Alpert’s right to counsel under CrR 3.1. Id. at 11, 13. Specifically, we
    concluded that Alpert “unequivocally invoked his right to counsel” shortly after a
    detective began to question him at the scene of the shooting because he
    communicated his intent to terminate the interview and provided the name and
    2   The jury instruction is not an issue on discretionary review.
    2
    No. 82960-2-I/3
    contact information for an attorney:
    Here, Marysville police arrived at the apartment building
    shortly after Alpert shot Baker. Detective Craig Bartl questioned
    Alpert while standing “in the street” at the scene. Detective Bartl
    read Alpert Miranda3 warnings. Alpert waived his rights, agreed to
    speak to the detective, and gave Detective Bartl permission “to
    audio record” their conversation. But after about five minutes of
    questioning, Alpert announced, “I’m just going to be quiet now, cuz
    my attorney is named Michael J. Longyear. He’s at 801 2nd
    Avenue. 1415 Norton Building.” Detective Bartl asked, “So are you
    done talking?” Alpert replied, “Yes sir.” Detective Bartl again
    asked Alpert for his name and then terminated the interview
    because Alpert “invoked his . . . Constitutional Rights.” Officers
    placed Alpert in the back of a patrol car. Detective Bartl did not tell
    other officers that Alpert had invoked his rights or attempt to put
    Alpert in contact with an attorney.
    Id. at 13, 14-15.
    We determined that while a “reasonable officer” would have understood
    that Alpert was “expressing a desire to speak with that attorney,” Detective Bartl
    and other law enforcement officers “made no effort” to connect Alpert with
    Longyear or any other attorney.4 Alpert, No. 79147-8-I, slip op. at 15. As a
    result, we held that officers violated CrR 3.1(c)(2) by failing to facilitate Alpert’s
    access to counsel “[a]t the earliest opportunity”5 and that all of his “tainted”
    statements “must be suppressed.” Id. at 13-15. We identified Alpert’s tainted
    3   Miranda v. Arizona, 
    384 U.S. 436
    , 
    86 S. Ct. 1602
    , 
    16 L. Ed. 2d 694
     (1966).
    4 Officers first drove Alpert to the Marysville Municipal Jail to begin booking procedures.
    But because a K-9 officer bit Alpert during his arrest, they took him to the hospital to evaluate his
    injuries. After the evaluation, officers returned Alpert to the Marysville jail and placed him “on
    suicide watch.” They then booked him into the Snohomish County Jail early the next morning,
    where they finally gave him access to a phone. Alpert continued to speak with officers the entire
    time.
    5CrR 3.1(c)(2) provides:
    At the earliest opportunity a person in custody who desires a lawyer shall 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 communication with a lawyer.
    3
    No. 82960-2-I/4
    statements related to the second degree assault charge and concluded the error
    as to that charge was harmless. And we directed the trial court to identify and
    suppress for retrial “the statements related to Alpert’s murder charge” that were
    tainted by the violation of his right to counsel. Id. at 16.
    But on remand, in 2021, the trial court held another suppression hearing
    and viewed its task as determining “when did the violation occur, and whether the
    defendant’s unsolicited or volunteered statements are a waiver.” And although
    police officers testified at the initial 2018 suppression hearing about their actions
    after Alpert asked to speak with counsel, the trial court allowed the State to
    present additional testimony to support its position that the “earliest opportunity to
    provide [Alpert] access to a telephone occurred once he was cleared by
    emergency services and booked into the Snohomish County Jail.”6
    Based on the evidence presented at the 2021 suppression hearing, the
    trial court concluded that all of Alpert’s statements at the scene of the shooting
    were admissible because there was an “ongoing investigation” and it was
    “reasonable” to withhold access to a telephone or other means to communicate
    with a lawyer. The court likewise concluded that Alpert’s statements on the way
    to and at the Marysville jail were admissible because he was “actively being
    booked and transported to the hospital.” The court then deemed Alpert’s
    statements at the hospital admissible after finding that the Marysville jail has a
    “reasonable policy” that requires medical clearance before booking a suspect
    after contact with a police dog during the arrest process. The court further
    6   The court also admitted new evidence about the Marysville jail’s policy on K-9 officer
    bites.
    4
    No. 82960-2-I/5
    determined that Alpert’s statements after he was medically cleared and booked
    at the Marysville jail were admissible because custody officers placed Alpert on
    suicide watch and put him in a restraint chair, and providing a telephone to an
    inmate in those circumstances posed safety risks. Finally, the court concluded
    that Alpert’s right to counsel “accrued” many hours after his arrest when jail
    personnel removed him from the restraint chair.7 The court did not identify any
    statements to suppress but noted that “the State stipulates all statements made
    after being released from the restraint chair . . . are inadmissible.”8
    Alpert now seeks discretionary review of the trial court’s order following
    the 2021 suppression hearing.9
    ANALYSIS
    Alpert contends the court failed to comply with the mandate in the prior
    appeal to suppress all statements he made after invoking his right to counsel
    and, instead, held another suppression hearing to determine when and whether a
    CrR 3.1 violation occurred. He argues that the trial court “departed from the
    usual course of judicial proceedings,” warranting discretionary review under RAP
    2.3(b)(3).10 The State argues that our holding (1) did not require suppression of
    7 The record shows that Alpert invoked his right to counsel at 6:11 p.m. on the date of his
    arrest, June 11, 2017, and custody officers removed him from the restraint chair sometime after
    10:25 p.m., more than four hours later.
    8  Presumably, the court was referring to the time between releasing Alpert from the
    restraint chair at the Marysville jail and booking him at the Snohomish County Jail, where they
    eventually provided access to a phone.
    9 Alpert also moved to recall the mandate in the first appeal, raising the same grounds on
    which he seeks discretionary review. We denied the motion. A commissioner of this court
    referred Alpert’s motion for discretionary review to this panel for consideration. See RAP 17.2(b).
    10RAP 2.3(b)(3) allows discretionary review when “[t]he superior court has so far
    departed from the accepted and usual course of judicial proceedings . . . as to call for review by
    the appellate court.”
    5
    No. 82960-2-I/6
    all statements Alpert made after he requested counsel and (2) “left open the
    possibility that statements were not tainted for other reasons.” The State
    maintains that the proceedings on remand aligned with our decision and
    instructions on appeal. We agree with Alpert.
    The appellate court’s mandate determines the scope of remand, which
    governs the proceedings in the trial court on remand. State v. Kilgore, 
    167 Wn.2d 28
    , 42, 
    216 P.3d 393
     (2009); State v. Schwab, 
    134 Wn. App. 635
    , 644,
    
    141 P.3d 658
     (2006), aff’d, 163 Wn2d 664, 
    185 P.3d 1151
     (2008); see also RAP
    12.2 (“Upon issuance of the mandate of the appellate court . . . , the action taken
    or decision made by the appellate court is effective and binding on the parties to
    the review and governs all subsequent proceedings in the action in any court.”).
    “[T]he trial court cannot ignore the appellate court’s specific holdings and
    directions on remand.” Bank of America, N.A. v. Owens, 
    177 Wn. App. 181
    , 189,
    
    311 P.3d 594
     (2013). This is the principle behind the law of the case doctrine.
    Owens, 177 Wn. App. at 181.
    The law of the case doctrine defines “ ‘the binding effect of determinations
    made by the appellate court on further proceedings in the trial court on remand.’ ”
    Lutheran Day Care v. Snohomish County, 
    119 Wn.2d 91
    , 113, 
    829 P.2d 746
    (1992) (quoting 15 LEWIS H. ORLAND & KARL B. TEGLAND, W ASHINGTON PRACTICE:
    JUDGMENTS § 380, at 55 (4th ed. 1986)). In other words, when a prior appeal
    determines an issue of law, the law of the case doctrine ordinarily precludes
    revisiting the same legal issue. State v. Worl, 
    129 Wn.2d 416
    , 425, 
    918 P.2d 905
    (1996); Sambasivan v. Kadlec Med. Ctr., 
    184 Wn. App. 567
    , 576, 
    338 P.3d 860
    6
    No. 82960-2-I/7
    (2014). In all of its iterations, the law of the case promotes finality and efficiency.
    Roberson v. Perez, 
    156 Wn.2d 33
    , 41, 
    123 P.3d 844
     (2005) (citing 5 AM. JUR. 2D
    APPELLATE REVIEW § 605 (1995)). Courts apply the doctrine to “ ‘avoid indefinite
    relitigation of the same issue, to obtain consistent results in the same litigation, to
    afford one opportunity for argument and decision of the matter at issue, and to
    assure the obedience of lower courts to the decisions of appellate courts.’ ”
    State v. Harrison, 
    148 Wn.2d 550
    , 562, 
    61 P.3d 1104
     (2003) (quoting 5 AM. JUR.
    2D APPELLATE REVIEW § 605).
    Here, we ruled as a matter of law that the State violated Alpert’s rights
    under CrR 3.1 and that the trial court erred when it admitted statements tainted
    by the violation. We identified as tainted several statements Alpert made at the
    hospital that related to the second degree assault charge. But we remanded for
    the court to “identify and suppress” for retrial those statements “related to Alpert’s
    murder charge” that were tainted by the violation of his CrR 3.1 right to counsel.
    Alpert, No. 79147-8-I, slip op. at 16. Indeed, Alpert made most of the statements
    admitted at trial in the hours following his arrest—at the scene of the shooting, on
    the way to the Marysville jail, at the Marysville jail, and at the hospital. We did
    not remand for the court to reconsider “when did the violation occur, and whether
    the defendant’s unsolicited or volunteered statements are a waiver.” Contrary to
    our mandate, the trial court on remand re-evaluated whether a violation occurred,
    then again ruled in error that Alpert’s custodial statements admitted in the first
    trial were admissible and that no CrR 3.1 violation occurred. Ultimately, the trial
    7
    No. 82960-2-I/8
    court’s ruling on remand does not suppress any statements presented in the first
    trial.
    The State suggests that applying the law of the case doctrine would “work
    a manifest injustice to the [S]tate” because it did not have a chance to argue that
    officers gave Alpert access to an attorney at the earliest opportunity at the 2018
    CrR 3.5 hearing. Rather, the State focused its argument on whether Alpert made
    an unequivocal request to speak to an attorney. But it was clear at the outset of
    the 2018 suppression hearing that Alpert alleged a CrR 3.1 violation. The State
    chose the witnesses to call in response to the motion and, as a matter of
    strategy, focused its argument on whether Alpert unequivocally requested to
    speak with an attorney. All witnesses had the opportunity to testify fully about the
    issue and some did testify about their opportunities to connect Alpert with an
    attorney following his arrest. The State had ample opportunity to address all
    aspects of Alpert’s CrR 3.1 challenge at the initial suppression hearing.
    While Washington strongly disfavors interlocutory review, it is available in
    “rare instances” when, as here, “the alleged error is reasonably certain and its
    impact on the trial manifest.” Minehart v. Morning Star Boys Ranch, Inc., 
    156 Wn. App. 457
    , 462, 
    232 P.3d 591
     (2010). And while our courts infrequently
    invoke RAP 2.3(b)(3) as a basis for review, it applies here where circumstances
    call for the “ ‘exercise of revisory’ ” authority, even absent “senseless or
    inappropriate” conduct by the trial judge. See Geoffrey Crooks, Discretionary
    Review of Trial Court Decisions under the Washington Rules of Appellate
    Procedure, 
    61 Wash. L. Rev. 1541
    , 1548 (1986) (quoting RAP 2.3 cmt. b). Here,
    8
    No. 82960-2-I/9
    the trial court lacked authority on remand to revisit our determination that officers
    violated CrR 3.1 when Alpert invoked the right to counsel and no one facilitated
    his request. See Wahler v. Dep’t of Soc. & Health Servs., 
    20 Wn. App. 571
    , 575-
    76, 
    582 P.2d 534
     (1978) (concluding that reviewing court departed from “the
    accepted and usual course of judicial proceedings” by reviewing issues not
    actually decided by the administrative agency).
    We recognize that the trial court worked diligently on this matter and did
    not intentionally disregard our binding decision. Nevertheless, the court
    misperceived the scope of our remand, and in doing so, so far departed from the
    accepted and usual course of judicial proceedings that it calls for appellate
    review.11 We grant Alpert’s motion for discretionary review. Our court
    administrator/clerk will set a perfection schedule.
    WE CONCUR:
    11 RAP 2.3(b)(3). Because we grant discretionary review on this basis, we need not
    reach Alpert’s arguments in support of review under RAP 2.3(b)(1) (obvious error) and (2)
    (probable error).
    9