State Of Washington, V. Rickie Millender, Jr. ( 2023 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 85682-1-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
RICKIE GEORGE MILLENDER, JR.,
a/k/a Jason Miller, Kevin George,
Kevin Millender, Rickie G. Millender,
Rickie Millender, Jr., Ricky George
Millender Jr., Ricky Millender,
Appellant.
BIRK, J. — Rickie Millender, Jr. appeals his conviction for first degree
unlawful possession of a firearm, arguing the trial court failed to enter written
findings of fact and conclusions of law in violation of CrR 3.5(c) and CrR 3.6(b).
While the trial court erred by not entering written findings and conclusions as
required by those rules, we hold the error to be harmless and affirm.
I
The State charged Millender with first degree unlawful possession of a
firearm.1 In advance of trial, Millender filed a motion under CrR 3.6 to suppress
evidence obtained after an allegedly unlawful search. When the parties appeared
for trial on October 31, 2022, the court began by conducting a hearing under CrR
1 Three other charges were dismissed before the matter was submitted to
the jury.
No. 85682-1-I/2
3.5, on Millender’s CrR 3.6 motion, and on a motion Millender filed under CrR 8.3
that is not a subject of this appeal.
A
The trial court held the CrR 3.5 hearing first. The State called police officers
Jeffrey Robillard and Matthew Riche, and the defense called Millender.
Robillard, a retired police officer formerly employed by the Tacoma Police
Department, testified he was on patrol duty on April 30, 2020. Then-Officer
Robillard wore a Tacoma Police Department jumpsuit and rode as a passenger in
a marked patrol vehicle. Officer Robillard’s student officer, Arturo Campos, was
driving.
While on patrol, the officers observed a vehicle being driven on a city street,
and Officer Robillard noticed there was significant damage to the back of the
vehicle, which made it impossible to read the rear license plate. The officers
attempted to perform a traffic stop, but the driver of the vehicle did not attempt to
stop, sped off, and quickly turned into an alley. Officer Campos activated the patrol
vehicle’s emergency lights. Officer Robillard observed the vehicle’s driver and the
sole occupant, whom he later identified as Millender, raise his hands and exit the
vehicle while it was still moving. Officer Robillard testified he commanded
Millender to stop, but Millender did not respond to those commands. Officer
Robillard noticed Millender was carrying a black backpack in his hands.
Millender fled on foot, running between houses, and Robillard pursued him.
Officer Robillard did not have his gun drawn, and used his shoulder radio to report
someone was fleeing from a traffic stop and he was in pursuit. Millender scaled a
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homeowner’s fence and entered into the backyard. Officer Robillard waited for the
owner to open the gate to the yard and continued searching for Millender. Officer
Robillard found Millender crouched down near a house and shed in another yard.
Officer Robillard ordered Millender to get on the ground, and Millender responded
by standing up and moving towards Officer Robillard. No other officers were
present with Officer Robillard at that time. Officer Robillard struck Millender and
used an armbar technique to put Millender on the ground. Officer Robillard
testified that Millender said, “Don’t kill me.” Millender was handcuffed while behind
the shed and house. At some point, Officer Robillard told Millender he was under
arrest and was taking him to jail, but did not remember when. The backpack was
not with Millender, and after detaining and escorting Millender back to his patrol
car, Officer Robillard advised other officers that he had observed Millender
previously carrying a backpack.
Officer Robillard testified Millender made several pre-Miranda2 statements,
but could not remember what encouraged him to make them. Millender told Officer
Robillard “that he had the gun for his protection and that he was going to jail,” “I
never should have run,” and “when I saw the lights come on, I was like ‘oh, fuck.’ ”
Officer Robillard testified he typically would advise a detained individual
about their rights by reading them either from a police advisement of rights form or
a card Robillard carried in his pocket. The card is the same as the police
advisement of rights form but “shrunken down and laminated.” Officer Robillard
read Millender his Miranda rights when Millender was handcuffed in his patrol car,
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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No. 85682-1-I/4
and Officer Robillard put Millender’s “exact answers to my questions” on the
bottom of the document. When asked if Millender understood each of the rights
explained by Officer Robillard as read from the form, Millender replied, “Yes, sir.”
Millender gave the same response when asked if he voluntarily wished to answer
any questions now.
Officer Robillard testified that after he advised Millender of his Miranda
rights, Millender admitted that he “knew he had a suspended license,” “the gun
apparently in the backpack was his,” and “he had had it for ten years for protection
as he had been shot in the neck previously” but “never fired it.” Millender also
admitted that “he shouldn’t have run and that he was trying to avoid being seen by
the police.”
Officer Robillard testified that Millender did not appear to be under the
influence of any drugs or alcohol, have any problems communicating with Officer
Robillard, or have any difficulty speaking English. While Officer Robillard spoke
with him, Millender did not request an attorney, invoke his rights, or appear to be
confused about waiving his rights. Officer Robillard testified that neither he nor
anyone else made threats or promises to Millender to get him to answer any
questions. Officer Robillard testified he saw the missing backpack after other
police officers located it.
On cross-examination, defense counsel noted that according to the “CAD
[computer aided dispatch] report,” Officer Robillard called out to report the chase
at “9:30,” Millender was detained at about “9:37,” but Millender was not read his
Miranda rights until “9:53.” Defense counsel asked, “Why would that be?” Officer
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No. 85682-1-I/5
Robillard said, “There were lots of things going on. I had to escort him back to the
car. The backpack turned up. I had to examine the contents of the backpack.” In
the backpack, officers found a 9 millimeter semi-automatic firearm and a shoulder
holster that contained a loaded magazine. The backpack also contained an
envelope with Millender’s name and “Department of Corrections paperwork.”
Officer Robillard stated that Millender made no complaints at that time about
Officer Robillard’s treatment. When asked during cross-examination, Officer
Robillard denied striking Millender after handcuffing him, and stated that Millender
said he soiled himself. When asked whether he made fun of Millender for soiling
himself, Officer Robillard testified, “No, I don’t think I did.” When asked whether it
was normal police procedure to “laugh at a client,” Robillard testified he “did not
laugh at the client,” but also did not know if he laughed at that time.
Riche worked as a Tacoma Police Department detective at the time of the
hearing. On April 30, 2020, then-Officer Riche was on duty as a patrol officer at
9:30 a.m. On that day, he wore a patrol uniform in a marked patrol vehicle. After
reviewing surveillance footage and retrieving the backpack, Officer Riche returned
to Millender in Robillard’s patrol car. Officer Riche heard Millender say, “ ‘I’m going
to jail. I got a gun for protection. I was shot in the neck,’ ” and “the gun was not
sold.” On cross-examination, Officer Riche testified he did not remember whether
he was present when Millender was read his Miranda rights.
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No. 85682-1-I/6
Millender testified that when Officer Robillard approached him while he was
hiding, Officer Robillard said only “get down” when Millender was already on the
ground. Officer Robillard then handcuffed Millender from behind and placed “his
knee in the back of my neck and stuff, and that’s how he picked me up after he
cuffed me.” Officer Robillard struck Millender in his face with his fist “[a]bout two,
three times.” Millender kept saying, “ ‘Please don’t kill me.’ ” Millender stated he
was scared for his life, because “lately I’ve been having a lot of reports of police
killing people,” and he ran because he did not have a license and did not want to
go to jail. The location of the traffic stop and arrest made Millender nervous
because there were no witnesses in the area, just Officer Robillard and Millender.
Millender testified he soiled himself after Robillard handcuffed him and that
Robillard said, “ ‘You stink.’ ” Millender testified Officer Robillard made “a lot of
jokes” such as telling Officer Riche that Millender “ ‘crapped his pants’ ” and “they
all laughed and then they kept talking about it over and over again.”
Millender denied making statements while outside the patrol car. Millender
testified he was never advised of his Miranda rights and was never told he could
answer or not answer questions. Millender did not sign “any more documents”
with Officer Robillard. Millender denied that the signature on the advisement of
rights was his and did not recognize it as anyone else’s signature. Millender also
denied making the following statements: “yes, sir,” “ ‘I’m going to jail,’ ” “ ‘the gun
is for protection because I was shot in the neck,’ ” and “it’s not stolen.” Millender
never told Officer Robillard he was trying to avoid the police or possessed a gun.
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No. 85682-1-I/7
On cross-examination, Millender denied having a backpack. Millender
admitted that he had had more than one contact with law enforcement in his life,
had received Miranda warnings in the past, was aware of those rights, speaks and
understands English, and understands the consequences of making statements to
law enforcement.
After hearing argument by the parties, the trial court made its CrR 3.5 ruling
orally on the record. The court found none of Millender’s prior convictions to be
“particularly probative of credibility.” Millender’s prior contacts with law
enforcement and knowledge of police procedures may have had a bearing on “how
he may have acted or what he may have remembered; I don’t know.”
The court found Officer Robillard’s testimony to be “very specific” and “very
detailed.” Officer Robillard “freely admitted when he didn’t remember things, even
though it may have been to the State’s advantage for him to have remembered
them.” For example, whether or not the signature on the Miranda form is
Millender’s or not. The court concluded Officer Robillard was credible overall.
The court found Millender “credible for certainly part of his testimony.” The
court attributed the differences between Millender’s and Officer Robillard’s
testimony to “an honest disagreement over what happened.” The court said, “[T]he
Miranda warnings may not be what stands out in [Millender’s] memory from this
encounter” “if he’s in fear for his life.” The court found not credible Millender’s
“absolute denial of knowing anything about the backpack or having possessed the
backpack.” That absolute denial led the court to believe Officer Robillard more
credible “at least on all material points where his testimony differed from Mr.
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No. 85682-1-I/8
Millender’s,” “so this Court will adopt Officer Robillard’s testimony as the Court’s
findings of fact.”
The court found Millender’s pre-Miranda statements were not in response
to interrogation. The court found Millender then received Miranda warnings and
verbally replied that he was willing to waive those rights without being subjected to
threats, promises, or under the influence of anything. Millender did not express
any confusion regarding his rights. Taken together, the court concluded Millender
“made a knowing, voluntary, and intelligent waiver of his Miranda warnings and
made the statements voluntarily. So the statements are admissible.”
B
The trial court then held the CrR 3.6 hearing. The State called Police
Officers Riche and Zachary Spangler.
Officer Riche testified he conducted a search for a backpack after he was
called to the scene. Officer Riche first searched the backyard of the residence
where Officer Robillard found and arrested Millender. Officer Riche’s initial search
was unsuccessful, so he climbed up the ladder of an RV (recreational vehicle) or
trailer in the same backyard to “get an overview of the entire yard.” Officer Riche
found the backpack on top of the RV, and passed it down to Officer Spangler.
Officer Riche testified Officer Spangler advised him that there was a firearm in the
backpack.
On cross-examination, Officer Riche could not describe the backpack,
believed it to be Millender’s backpack because of its proximity to where Millender
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No. 85682-1-I/9
was found, and admitted “it was potentially anybody’s.” Officer Riche did not look
in the backpack.
Officer Spangler was on duty on April 30, 2020 at approximately 9:30 a.m.
and responded to the incident involving Millender. After arriving at the scene,
Officer Robillard advised Officer Spangler that there was a backpack in the area
and asked him and Officer Riche to look for it. Officer Spangler testified that after
they canvassed the backyards of some homes, Officer Riche mounted an RV in
one of the backyards and found the backpack on top. Officer Riche handed the
backpack down to Officer Spangler, who saw the main “compartment was
unzipped.” Officer Spangler could see inside and found a handgun and holster.
He did not see anything else in the backpack.
On cross-examination, Officer Spangler admitted that when handed down
the backpack, he did not know who it belonged to and “in that way it was private
property.” Officer Spangler denied removing anything from the backpack or taking
pictures of the backpack. He denied that anything fell out of the backpack.
The State argued the backpack should not be suppressed because
Millender abandoned it and therefore relinquished any protected privacy interest
in it, the search of the backpack is supported by the plain view doctrine, and the
backpack was discovered as part of a search incident to arrest. The trial court
rejected admitting the backpack evidence under the plain view doctrine or search
incident to arrest warrant exception. But the court found the testimony of Officer
Spangler to be credible and that “whatever privacy interest Mr. Millender had in
that backpack was relinquished when he decided to abandon it in a place where
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No. 85682-1-I/10
he had no expectation of privacy.” The court denied Millender’s motion to
suppress.
C
At trial, Officer Robillard, Officer Riche, and Officer Spangler testified
consistent with their statements summarized above. Officer Robillard also testified
that in addition to a handgun, the black backpack contained a shoulder holster, a
loaded gun magazine, and an envelope addressed to Millender from the
Department of Corrections. Tacoma Police Department Detective Jeffrey Maahs
testified he test fired the handgun and concluded it was operable. Millender
stipulated that he had a prior conviction that rendered him ineligible to possess a
firearm. The jury found Millender guilty of first degree unlawful possession of a
firearm. The court imposed a standard range sentence.
II
Millender first argues on appeal the trial court erred by failing to enter written
findings of fact and conclusion of law as required under CrR 3.5(c) and contends
a remand is appropriate for the entry of written findings and conclusions. We
disagree.
The rule provides the court must state in writing “(1) the undisputed facts;
(2) the disputed facts; (3) conclusions as to the disputed facts; and (4) conclusion
as to whether the statement is admissible and the reasons therefor.” CrR 3.5(c).
“The trial court’s failure to comply is error, but such error is harmless if the court’s
oral findings are sufficient for appellate review.” State v. France, 121 Wn. App.
394, 401, 88 P.3d 1003 (2004). In State v. Smith, “Although the deputy prosecuting
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No. 85682-1-I/11
attorney told the trial court that written findings of fact and conclusions of law from
the suppression hearing would be prepared, no such findings [were] prepared or
filed.” 76 Wn. App. 9, 13, 882 P.2d 190 (1994). We held, “A court’s failure to enter
written findings of fact and conclusions of law following a suppression hearing”—
in that case as required by CrR 3.6—“is harmless error if the court’s oral opinion
and the record of the hearing are ‘so clear and comprehensive that written findings
would be a mere formality.’ ” Id. at 16 (quoting State v. Smith, 68 Wn. App. 201,
208, 842 P.2d 494 (1992)). In Smith, the trial court’s oral ruling made it clear “what
its findings would have been had it formally entered findings,” such that the
“absence of written findings did not prejudice [the defendant] and [did] not impede
review.” 76 Wn. App. at 17.
Here, the trial court erred by not entering written findings of fact and
conclusions of law following the CrR 3.5 hearing. However, this error is harmless.
The court unambiguously adopted Officer Robillard’s testimony as the findings of
fact. The court admitted Millender’s pre-Miranda statements and post-Miranda
statements, because he made a “knowing, voluntary, and intelligent waiver of his
Miranda warnings and made the statements voluntarily. So the statements are
admissible.” The record does not show that Millender has been prejudiced by the
lack of additional written findings mirroring this analysis. These findings, along
with Officer Robillard’s detailed testimony, are sufficient to permit appellate review,
they support the trial court’s ruling, and a remand to enter written findings and
conclusions under CrR 3.5(c) is unnecessary.
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No. 85682-1-I/12
III
Millender argues the trial court erred by failing to enter written findings of
fact and conclusions of law as required under CrR 3.6(b) and contends a remand
is required for the entry of written findings and conclusions. We disagree.
Following an evidentiary hearing on motions to suppress physical, oral, or
identification evidence, the trial court must enter written findings of fact and
conclusions of law. CrR 3.6(a), (b). The failure to enter findings of fact and
conclusions of law is error, but such error is harmless if the trial court’s oral findings
are sufficient to permit appellate review. State v. Richards, 11 Wn. App. 2d 84, 87,
450 P.3d 1238 (2019).
The trial court erred by not entering written findings of fact and conclusions
of law following the CrR 3.6 hearing, but this error is harmless. The court found
Officer Spangler credible. The trial court also found the particular circumstances
here to be analogous to those in State v. Reynolds, 144 Wn.2d 282, 27 P.3d 200(2001) and State v. Young, 86 Wn. App. 194, 200, 935 P.2d 1372 (1997).
In Reynolds, a law enforcement officer conducted a traffic stop and while
speaking to the driver, noticed a green coat lying on the passenger side floorboard
in front of the defendant, who was the vehicle’s only passenger. 144 Wn.2d at
284. The officer later arrested the driver and asked the defendant to remain in the
vehicle. Id. The officer then came back to the defendant and asked him to step
outside so he could search the vehicle. Id. The officer noticed the coat was no
longer on the floorboard but was lying on the ground, stuffed underneath the
passenger side of the vehicle. Id. at 284-85. The defendant claimed the coat was
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No. 85682-1-I/13
not his and denied placing it under the vehicle. Id. After searching the coat, the
officer found a white powdery substance, which yielded a positive field test for the
presence of a controlled substance, and drug paraphernalia. Id. The trial court
denied the defendant’s motion to suppress, and the Reynolds court affirmed,
rejecting the defendant’s contention that he involuntarily abandoned the coat in
response to alleged unlawful police conduct. Id. at 286, 291. The court held,
“Needing neither a warrant nor probable cause, law enforcement officers may
retrieve and search voluntarily abandoned property without implicating an
individual’s rights under the Fourth Amendment or under article I, section 7 of our
state constitution.” Id. at 287.
In Young, a law enforcement officer made social contact with the defendant
in an area known for high drug activity. 86 Wn. App. at 197. As the officer drove
away, he requested a criminal records check and discovered that the defendant
had an extensive criminal background involving drugs. Id. The officer turned
around and activated the car spotlight, illuminating the defendant and the
surrounding area. Id. The defendant walked rapidly toward some trees, tossed
“ ‘an apparent package or something’ ” behind a tree, walked quickly away from
the trees, and then resumed a normal walk down the sidewalk. Id. The officer
stopped the defendant, detained him, and retrieved the object, which was a
charred can containing a substance the officer believed to be crack cocaine. Id.
at 197-98. The trial court granted the defendant’s motion to suppress all evidence
gained from the arrest, ruling the defendant’s seizure occurred at the time the
officer flashed his spotlight. Id. at 198. The Young court reversed, holding the
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No. 85682-1-I/14
officer properly retrieved the charred can as voluntarily abandoned property and
the trial court erred in excluding the evidence. Id. at 200-01, 203. The court said,
“Discarded property is voluntarily abandoned unless there is unlawful police
conduct, and a causal nexus exists between that conduct and the abandonment.”
Id. at 201 (citing State v. Whitaker, 58 Wn. App. 851, 856, 795 P.2d 182 (1990)).3
Millender contends the trial court’s reliance on Reynolds and Young was
insufficient because the court failed to discuss the facts of this case, did not resolve
any disputed facts, and did not explain how the facts of this case established
abandonment. Unlike the CrR 3.5 hearing, Millender did not present evidence
conflicting with Officer Spangler’s testimony. While Officer Spangler
acknowledged on cross-examination that the backpack may have belonged to a
private party, the trial court’s finding that Millender abandoned the backpack and
therefore relinquished any privacy interest in the backpack resolved that issue in
the State’s favor. By adopting Officer Robillard’s testimony as findings of fact, the
trial court necessarily found that Millender possessed a backpack when Officer
Robillard watched Millender flee his car on foot, Officer Robillard later noticed the
backpack was missing, and Officer Riche and Office Spangler found the backpack
in close proximity to where Officer Robillard detained Millender. These findings
closely resemble the factual circumstances described in Reynolds and Young.
Based on the foregoing, the trial court concluded Millender abandoned the
3 This quotation from Young reflects, as Reynolds also held, that the
principle supporting warrantless retrieval and search of voluntarily abandoned
property is limited by the corollary that “property cannot be deemed voluntarily
abandoned (and thus subject to search) if a person abandons it because of
unlawful police conduct.” Reynolds, 144 Wn.2d at 287.
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No. 85682-1-I/15
backpack. Despite the trial court’s error in not entering written findings and
conclusions, its oral ruling is sufficient to permit appellate review and a remand is
unnecessary.
Affirmed.
WE CONCUR:
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