State Of Washington, V. Daniel Powell ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON ,
No. 83344-8-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
DANIEL R. L. POWELL,
Appellant.
APPELWICK, J. — Powell appeals from his conviction for second degree
assault. He challenges admission at trial of his statements made to law
enforcement officers, without the benefit of Miranda1 warnings, while he was not
under arrest, but also, not free to leave. We affirm.
FACTS
Daniel Powell was temporarily staying with his friend Tovia Cuty and her
boyfriend Scott Spencer. When Cuty notified Powell that he needed to leave,
Powell became angry and they argued for hours. Spencer returned home during
the argument. The two men had a physical altercation, with Powell punching
Spencer in the head and squeezing his neck. Spencer could not breathe and he
lost consciousness. Cuty screamed and tried to pull Powell off of Spencer. When
she heard Spencer gurgle and try to catch his breath, she threatened to call the
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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police. Powell stopped and asked Cuty not to call the police. She told Powell to
leave immediately.
Unbeknownst to Cuty and Spencer, Powell spent the night in his car outside
the house. The next day, Cuty and Spencer opened the garage door to take out
the garbage and discovered that Powell was still outside the house. Powell was
angry and cold after sleeping in his car. He tried to get into the garage. Cuty and
Spencer had to close the garage door to prevent Powell from forcing his way
inside. Powell remained on the property, and at one point was “circling the house.”
Spencer eventually called the police.
Two Clark County Sheriff’s deputies arrived. One spoke with Spencer who
informed them about the incident the previous evening. Powell exited his car, and
the other deputy made contact with him. The deputy questioned Powell about his
relationship with Spencer and the altercation the previous evening.
The State charged Powell with second degree assault for strangling
Spencer.
The trial court held a CrR 3.5 hearing on the admissibility of Powell’s
statements to law enforcement. During the hearing, the deputy testified that he
did not tell Powell that Powell was not free to leave. Nor did he threaten to arrest
Powell if Powell did not answer his questions. The deputy also did not recall Powell
asking to leave the scene. The deputy did not handcuff or place Powell in his
patrol vehicle until after Powel was arrested.
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Powell testified that he asked the deputies whether he was under arrest.
The deputies responded that he was not under arrest, they were just asking some
questions. Powell asked whether he “may leave if need be,” and “was told no.”
The trial court made several findings of fact. The court identified that the
testimony differed as to whether Powell was free to leave, and accepted Powell’s
testimony that he “asked the deputies if he was free to leave and was told no.” The
court concluded that Powell was not “in custody” when he spoke with law
enforcement outside the residence because his “freedom of movement was not
curtailed to a degree that would be considered formal trappings of arrest.” The
court also determined that Powell’s statements to the deputies were knowingly,
intelligently, and voluntarily made. The court ruled the statements admissible.
A jury convicted Powell of second degree assault as charged. He received
a sentence at the low end of the standard sentencing range.
Powell appeals.
DISCUSSION
I. Statements to Police
Powell contends the trial court should have suppressed the statements he
made to the Clark County Sheriff’s Office deputies because he was interrogated in
custody without Miranda warnings. The federal and Washington State
constitutions guarantee the right against self-incrimination. U.S. CONST. amends
V, VI, XIV; WASH. CONST. art. I, § 9. Miranda warnings were developed to protect
the right against self-incrimination “while in the coercive environment of police
custody.” State v. Heritage, 152 Wn.2d 210, 214, 95 P.3d 345 (2004). To serve
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this purpose, Miranda warnings must be given before custodial interrogation of a
criminal suspect by an agent of the state. Id. We presume statements obtained
in violation of Miranda requirements are involuntary. Id.For purposes of Miranda, “custodial” refers to “whether a defendant’s
movement was restricted at the time of questioning.” State v. Lorenz, 152 Wn.2d
22, 36, 93 P.3d 133 (2004). In contrast to custodial arrest, an officer may conduct
a Terry2 stop to briefly detain a person for questioning without a warrant if the
officer has reasonable suspicion that the person is or is about to be engaged in
criminal activity. State v. Fuentes, 183 Wn.2d 149, 158, 352 P.3d 152 (2015). An
officer making an investigative stop “may ask a moderate number of questions to
determine the identity of the suspect and to confirm or dispel the officer’s
suspicions without rendering the subject ‘in custody’ for the purposes of Miranda.”
Heritage¸152 Wn.2d at 219 (quoting Berkemer v. McCarty, 468 U.S. 420, 439-40,
104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984)). A Terry stop constitutes a seizure under
constitutional analysis but is “‘substantially less police dominated’” than police
interrogations contemplated by Miranda. Id. at 152 Wn.2d at 218 (internal
quotation marks omitted) (quoting Berkemer, 468 U.S. at 439.
An investigatory detention does not convert into a custodial arrest requiring
a Miranda warning just because the suspect is not free to leave. State v. Marcum,
149 Wn. App. 894, 910, 205 P.3d 969 (2009). The objective measure of custody
is whether a reasonable person would believe they are in custody “to a degree
associated with formal arrest.” Lorenz, 152 Wn.2d at 36-37. We review a trial
2 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
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court’s custodial determination de novo. Id. at 36. We give great deference to a
trial court’s resolution of the circumstances surrounding the encounter. State v.
Harrington, 167 Wn.2d 656, 662, 222 P.3d 92 (2009). Challenged findings of fact
that are supported by substantial evidence are binding.3 State v. Johnson, 8 Wn.
App. 2d 728, 737, 440 P.3d 1032 (2019). Unchallenged findings are verities on
appeal. Id.Powell contends the trial court erred by concluding that his freedom of
movement was not curtailed to the degree of a formal arrest because he was not
free to leave. Powell fails to recognize the difference between seizure and
custodial arrest for the purposes of Miranda.
The deputies arrived at Cuty’s house in response to a reported disturbance.
Powell exited the car voluntarily and spoke with the deputies for approximately 10
minutes about the reported incident and Powell’s relationship with Spencer. While
Powell was not free to leave, the deputies did not pressure, threaten, or coerce
Powell into answering their questions. And, deputies expressly informed Powell
he was not under arrest. A reasonable person would not have believed they were
in custody “to a degree associated with formal arrest.” See Lorenz, 152 Wn.2d at
36. The encounter was a Terry stop to investigate, conducted to confirm or dispel
3 Powell challenges one finding of fact. Finding of fact 6 states, “[t]he
defendant was not in handcuffs and not placed in a patrol vehicle prior to
questioning. His movements were not restricted.” Powell argues that substantial
evidence supports that “[h]is movements were not restricted” only as it relates to
physical restraints. According to Powell, “[t]o the extent that part of Finding 6 might
be read to indicate there was no seizure as a matter of law, it is not a finding, it is
a conclusion of law, and must be reviewed de novo.” We do not disagree with
these claims.
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Powell’s involvement in the reported disturbance. The fact that the deputies told
Powell he was not free to leave did not escalate the contact to custodial arrest for
the purposes of Miranda.
Powell argues that State v. France, 129 Wn. App. 907, 120 P.3d 654 (2005),
supports his claim that he was in custody because no reasonable person would
have felt free to leave. In France, police stopped the defendant as a suspect in a
domestic violence incident. Id. at 908. They informed the defendant that “he would
not be allowed to go until the matter was cleared up.” Id. at 910. As a result, the
duration of the detention was unlimited and “police did not limit the detention to
verify specific information France voluntarily provided.” Id. As a result, “neither
France nor any reasonable person in his position would have felt that he was free
to leave until he satisfactorily explained” the assault. Id. at 911. The court noted
that “police had probable cause to make an arrest but delayed doing so to avoid a
Miranda warning.” Id.
Powell’s situation differs significantly from the facts in France. The deputies
did not have probable cause to arrest Powell, they were investigating in response
to a reported disturbance. The conversation between Powell and the deputies was
not unlimited or open ended. It was short, voluntary, and confined to Powell’s
relationship to Spencer and the incident the previous night. And, Powell was
clearly informed that he was not under arrest. France does not persuade us that
Powell was under custodial arrest at the time he made his statements to the
deputies.
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II. Bail and CrR 3.2
Powell argues the trial court denied his rights under CrR 3.2 and the
constitution by improperly imposing financial conditions on his pretrial release.
But, Powell has already been convicted at trial, we can no longer provide effective
relief for a pretrial bail issue. See State v. Ingram, 9 Wn. App. 2d 482, 490, 447
P.3d 192 (2019), review denied, 194 Wn.2d 1024 456 P.3d 401 (2020). The issue
is moot. State v. Gentry, 125 Wn.2d 570, 616, 888 P.2d 1105 (1995) (“A case is
moot if a court can no longer provide effective relief”). We may consider a moot
issue that involves matters of continuing and substantial public interest. State v.
Cruz, 189 Wn.2d 588, 598, 404 P.3d 70 (2017). In determining whether a case
satisfies this exception we consider (1) the public or private nature of the issue, (2)
whether guidance on the issue is desirable, and (3) the likelihood the issue will
recur. Id. While the bail issue is public and likely to recur, recent case law has
provided guidance on this issue. See Ingram, 9 Wn. App. 2d at 496; State v.
Huckins, 5 Wn. App. 2d 457, 468-69, 426 P.3d 797 (2018). There is no need for
us to address the issue again.
Affirmed.
WE CONCUR:
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