State of Washington v. Mark Njoroge Nyutu ( 2018 )

FILED
APRIL 19, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 34936-5-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
MARK NJORGE NYUTU, )
)
Appellant. )
LAWRENCE-BERREY, C.J. — Mark Njorge Nyutu appeals after his conviction for
second degree assault. He argues that the trial court erred by admitting his custodial
statements without adequate proof that the arresting officer provided proper Miranda1
warnings. Mr. Nyutu did not raise this argument below. Because the claimed error is not
manifest, we decline to review it and affirm Mr. Nyutu’s conviction.
FACTS
Faatuiolemoutu Laolagi was working as a bouncer at Stubblefields, a large bar in
Pullman, Washington. All bouncers at Stubblefields wear a shirt that says “Stubblefields”
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 34936-5-III
State v. Nyutu
on the front and “Staff” on the back. Report of Proceedings (RP) at 116. Shortly before
closing time at 2:00 a.m., Mr. Laolagi noticed Mr. Nyutu leaning up against the bar with
his back, which is against bar policy. Mr. Laolagi approached Mr. Nyutu, moved him
away from the bar, and told him he could not lean against the bar. Mr. Nyutu refused, and
Mr. Laolagi told him he was a bouncer. Mr. Nyutu became upset and agitated, and began
swearing at and threatening Mr. Laolagi. Several security cameras at the bar recorded
portions of the incident.
Because Mr. Nyutu was making threats, Mr. Laolagi signaled other employees to
come over and informed Mr. Nyutu that he had to leave the bar. DeMaundray Woolridge,
another employee, came over to assist Mr. Laolagi. At the same time, Mr. Nyutu signaled
one of his friends to come over. After a brief conversation, the employees began moving
Mr. Nyutu down some stairs and out of the bar. Mr. Nyutu had a beer bottle in his left
hand.
At this point, Mr. Nyutu swung at and punched Mr. Laolagi with his right hand
and said, “man, I told you.” RP at 164. Mr. Laolagi tackled him in response and the two
men both went down. The beer bottle shattered at some point. Mr. Laolagi was on top of
Mr. Nyutu, who continued to punch Mr. Laolagi in the head but now with the hand
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No. 34936-5-III
State v. Nyutu
holding the beer bottle. Mr. Laolagi suffered substantial injuries to his head. Law
enforcement officers arrived at the scene.
Officer Thomas Cornish conducted a preliminary investigation and determined
there was probable cause to arrest Mr. Nyutu. Officer Cornish provided Miranda
warnings to Mr. Nyutu, and Mr. Nyutu said he wanted to provide a statement. At the
police station, Officer Cornish told Mr. Nyutu that the interview was being recorded.
During the interview, Mr. Nyutu acknowledged he knew he had a broken beer bottle in
his hand when he punched Mr. Laolagi.
The State charged Mr. Nyutu with second degree assault. The trial court held a
CrR 3.5 hearing to determine the admissibility of Mr. Nyutu’s statements to police. At
the hearing, the State submitted Officer Cornish’s affidavit of probable cause. Mr. Nyutu
did not object to the State’s submission; had he, it likely would have prompted the State
to call Officer Cornish as a witness. The State did not call any witnesses. The trial court
asked Mr. Nyutu whether he had any evidence to offer, and he said he did not.
The trial court considered Officer Cornish’s affidavit and read it into the record.
The portion relevant to the appeal reads:
“I placed Nyutu under arrest for assault in the second degree. Nyutu
was advised of his constitutional rights, and that he was being audio and
digitally recorded. Nyutu said he understood. Once at the station, Nyutu
said he wanted to tell his side of the story. Nyutu said Laolagi pushed him
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State v. Nyutu
at the bar. He said Laolagi was not wearing a staff shirt, and he did not
know Laolagi was an employee. He said he reacted and punched Laolagi
with his right hand. He said they both fell to the ground. He said he
punched Laolagi because he felt like he was getting attacked. He said the
beer bottle was in his hand, but he was unsure how the bottle got broken.
He said it happened so fast he could not recall his exact actions after being
pushed.”
RP at 8-9 (emphasis added).
The State provided argument why Mr. Nyutu’s statements were admissible at trial.
The trial court then asked Mr. Nyutu if he had any argument. Mr. Nyutu replied, “No
comment, Your Honor. We’ll just let the Court rely on the record.” RP at 10.
The court then orally ruled:
According to this report, defendant was placed under arrest, given
his full Miranda warnings . . . . He did acknowledge that he understood the
rights . . . [and] once he arrived at the police station, Mr. Nyutu . . . initiated
making a statement saying he wanted to tell his side of the story . . . .
[T]he Court is satisfied that he was advised of [his constitutional]
rights, acknowledged that he understood, he initiated the contact to tell his
side of the story. So my conclusion here will be that Miranda was honored,
that he understood his rights, and he knowingly, voluntarily, and
intelligently made the decision to waive those rights, so I will admit all
statements at trial.
RP at 10-11.
At trial, Officer Cornish testified about Mr. Nyutu’s statements. The State also
showed the jury portions of the recording containing Mr. Nyutu’s statements. During
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State v. Nyutu
closing arguments, the State again referred to Mr. Nyutu’s statements and played the
recording.
The jury found Mr. Nyutu guilty of second degree assault, and the trial court
sentenced Mr. Nyutu to three months of confinement. He now appeals.
ANALYSIS
RESORT TO ORAL FINDINGS AND CONCLUSIONS
Preliminarily, Mr. Nyutu notes that the trial court failed to enter findings and
conclusions following the CrR 3.5 hearing. He recognizes that remand for entry of such
findings and conclusions is not necessarily required.
A trial court’s failure to enter written findings and conclusions is harmless when
the court’s oral ruling is sufficient to permit appellate review. State v. Cunningham, 116
Wn. App. 219, 226, 65 P.3d 325 (2003). Here, the trial court’s oral ruling is sufficient for
our review.
FAILURE TO PRESERVE ISSUE
Mr. Nyutu contends the State did not meet its burden to prove law enforcement
gave him adequate Miranda warnings. His central argument is that the State only
provided Officer Cornish’s probable cause affidavit at the CrR 3.5 hearing, which was
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State v. Nyutu
not specific enough to support the trial court’s finding that adequate warnings were given.
But Mr. Nyutu did not make this argument below.
A party generally may not raise an argument on appeal that the party did not make
to the trial court. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).
“There is great potential for abuse when a party does not raise an issue below because a
party so situated could simply lie back, not allowing the trial court to avoid the potential
prejudice, gamble on the verdict, and then seek a new trial on appeal.” State v. Lazcano,
188 Wn. App. 338, 356, 354 P.3d 233 (2015).
RAP 2.5(a)(3) is a commonly invoked exception that permits review of an
unpreserved claim of error. “To meet RAP 2.5(a) and raise an error for the first time on
appeal, an appellant must demonstrate that (1) the error is manifest and (2) the error is
truly of constitutional dimension.” State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756(2009). “If the facts necessary to adjudicate the claimed error are not in the record on
appeal, no actual prejudice is shown and the error is not manifest.” McFarland, 127
Wn.2d at 333.
Here, the facts necessary to adjudicate the claimed error are not present in the
record before us. Specifically, we do not know exactly what rights and warnings Officer
Cornish provided to Mr. Nyutu prior to custodial questioning. As mentioned previously,
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No. 34936-5-111
State v. Nyutu
Mr. Nyutu offered no evidence or argument at the CrR 3.5 hearing. He did not argue that
the Miranda warnings were inadequate. Because Mr. Nyutu failed to make this argument
below, the State did not request to reopen the record so it could call Officer Comish to
explain the nature and extent of the warnings he provided. We conclude that the
unpreserved claim of error is not manifest and decline to consider Mr. Nyutu's argument.
Affirmed. 2
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
I CONCUR:
2Although the record on appeal is insufficient for us to consider Mr. Nyutu's
claimed error, he may raise the issue in a personal restraint petition. McFarland, 127
Wn.2d at 335.
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No. 34936-5-III
State v. Nyutu (Concurrence in result)
No. 34936-5-III
SIDDOWAY, J. (concurring in result)- I agree that Mark Njorge Nyutu's
conviction should be affirmed. "Where the record indicates there is substantial evidence
upon which a trial court could find by a preponderance of evidence that a confession was
given voluntarily, the trial court's determination of voluntariness will not be disturbed on
appeal." State v. Woods, 34 Wn. App. 750, 759, 665 P.2d 895 (1983) (citing State v.
Snook, 18 Wn. App. 339,348,567 P.2d 687 (1977)). While the affidavit of probable
cause stated only that "Nyutu was advised of his constitutional rights," Clerk's Papers
at 3, there was no evidence presented to the trial court during the CrR 3.5 hearing to
suggest that Mr. Nyutu's advisement of his rights was not adequate. Given the applicable
burden of proof and nothing to suggest an insufficient advisement, the trial court could
reasonably find from the statement in the affidavit of probable cause that the officer or
officers who undertook to advise Mr. Nyutu of his rights did so correctly and sufficiently.
1