State v. Butler

• Decision Date: 05 January 2012
• Docket Number: No. 29187–1–III.,29187–1–III.
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Thomas Allen BUTLER, Appellant.

165 Wash.App. 820

269 P.3d 315

STATE of Washington, Respondent,

v.Thomas Allen BUTLER, Appellant.

No. 29187–1–III.

Court of Appeals of Washington, Division 3.

Jan. 5, 2012.

Janet G. Gemberling, Janet Gemberling PS, Spokane, WA, for Appellant.

Mark Erik Lindsel, Spokane County Prosecuting Attorney, Spokane, WA, for Respondent.

OPINION PUBLISHED IN PART

SWEENEY, J.

[165 Wash.App. 824] ¶ 1 This appeal follows convictions for first degree kidnapping, first degree burglary, conspiracy to commit first degree robbery, first degree robbery, and two counts of first degree assault. The defendant and another man broke into a home intent on stealing drugs and money. The defendant pistol-whipped and seized one victim, and then threatened him at gunpoint. The defendant makes a number of assignments of error on appeal. He contends the court should have suppressed the statement he gave to police while he was a patient in the hospital because he was on medication and could not then voluntarily consent to the police interview. The court found and concluded otherwise and we conclude that the court's findings are supported by the record and support the court's refusal to suppress the statement. The defendant also contends that any kidnapping was incidental to his robbery and therefore must be dismissed for insufficient evidence. We conclude that the kidnapping here did not merge with the robbery. We affirm the convictions.

FACTS

¶ 2 Thomas Butler and Derick Taylor broke into a home occupied by Brandon Benson, Taylor Robertson, and Shelsey Carpenter on March 30, 2009. Mr. Butler and Mr. Taylor punched Mr. Benson in the face. Mr. Butler hit Mr. Benson in the face with a handgun and demanded drugs and money. Mr. Benson told Mr. Butler to take his wallet and television, but that he did not have any drugs. Mr. Benson also told Mr. Butler “[l]et's go upstairs,” hoping that the commotion would wake up his roommates. Clerk's Papers (CP) at 185. Mr. Butler then dragged Mr. Benson out of bed and led him, at gunpoint, up the stairs to the home's main floor.

¶ 3 Meanwhile, Mr. Taylor rifled through the roommates' stuff and packed things to steal. Mr. Robertson was in his bedroom on the main floor; he woke up with the yelling and armed himself with a gun. He cracked open his bedroom door and saw Mr. Butler holding a gun to Mr. Benson's head and Mr. Taylor rummaging through things. Mr. Butler saw Mr. Robertson open the door, at which point he turned his gun from Mr. Benson to Mr. Robertson. Mr. Butler and Mr. Robertson exchanged gunshots; Mr. Butler was injured.

¶ 4 Police found Mr. Butler hiding underneath a neighbor's deck. He had two gunshot wounds. Mr. Butler was transported by ambulance to a hospital. He remained in a coma and in intensive care for several days. On April 6, Mr. Butler was still in the intensive care unit, but was no longer in a coma. On that date, Mr. Butler consented to a surgery to remove a bullet near his spine. Mr. Butler also met with Detective John Miller from the Spokane Police Department.

¶ 5 David Henry was the nurse assigned to Mr. Butler; and he controlled access to Mr. Butler. Mr. Henry concluded that Mr. Butler was well enough to speak to Detective Miller even though Mr. Butler was required to lay flat in a bed and was on pain medication. Detective Miller introduced himself and asked if Mr. Butler would speak with him. Detective Miller also concluded after talking to Mr. Butler that he was coherent enough to be interviewed. The detective then read Mr. Butler Miranda¹ warnings. Mr. Butler said he understood and agreed to talk to Detective Miller.

¶ 6 Mr. Butler did not complain of difficulty understanding and his answers to questions made sense to the detective. Detective Miller stopped the interview once Mr. Butler became too tired to continue and was having difficulty speaking.

¶ 7 The State charged Mr. Butler with first degree kidnapping, first degree burglary, conspiracy to commit first degree robbery, three counts of first degree robbery, and two counts of first degree assault. Mr. Butler moved to suppress the statements he gave to Detective Miller in the hospital. He argued that he was too debilitated to give a knowing, voluntary, and intelligent waiver of his rights. He also argued that Detective Miller failed to assess whether Mr. Butler was coherent enough to answer questions. The court listened to testimony from Mr. Henry, Detective Miller, Mr. Butler, and Mr. Butler's mother, Colleen Butler. The court concluded that the interview did not implicate Miranda because it was noncustodial, but even if it was custodial, Mr. Butler had the necessary capacity to waive his Miranda rights. The court denied Mr. Butler's motion to suppress and entered appropriate supporting findings of fact and conclusions of law.

¶ 8 The prosecution then proceeded to a jury trial. The court included, on its own motion, a jury instruction on when the occupant of a home can defend himself and others with deadly force. Mr. Butler objected to the jury instruction as a comment on the evidence. The jury convicted Mr. Butler of first degree kidnapping, first degree burglary, conspiracy to commit first degree robbery, first degree robbery, and two counts of first degree assault, all while armed with a firearm.

DISCUSSION

Statements To Police—Voluntary

¶ 9 Mr. Butler contends that the court erred by concluding that his statements to Detective Miller were free and voluntary. He argues that the record shows that he was on strong pain medications, bedridden, and therefore hardly capable of understanding what was going on and certainly not capable of intelligently consenting to talk to police.

[165 Wash.App. 827] ¶ 10 Mr. Butler's challenge to the court's refusal to suppress his statements implicates two separate standards here on appeal: one (substantial evidence) we apply to the court's findings of fact, and the second (de novo) we apply to the court's conclusion that his statements were freely and voluntarily given. State v. Grogan, 147 Wash.App. 511, 516, 195 P.3d 1017 (2008). Mr. Butler does not challenge the trial court's findings and we therefore accept them as true. State v. Broadaway, 133 Wash.2d 118, 131, 942 P.2d 363 (1997). So the only question before us is a question of law; that is, whether the court's factual findings support the court's conclusion that Mr. Butler's statements were free and voluntary.

¶ 11 The court concluded that Mr. Butler was not in custody, and that even if he was in custody, his statement was voluntary. We address both holdings in order.

¶ 12 The conclusion that a suspect is in custody turns on “whether a reasonable person in the individual's position would believe he or she was in police custody to a degree associated with formal arrest.” State v. Lorenz, 152 Wash.2d 22, 36–37, 93 P.3d 133 (2004). “Custody” depends on “whether the defendant's movement was restricted at the time of questioning,” and necessarily that the police restricted that movement. Id. “Custody” does not refer to whether police intend to arrest, whether the environment was coercive, or whether there was probable cause to arrest at the time of the questioning. Id. at 37, 93 P.3d 133. It refers instead to whether the suspect's movement is restricted at the time of questioning. Id. at 36–37, 93 P.3d 133.

¶ 13 In State v. Kelter, for example, the court addressed whether a suspect was in custody when police interviewed him in his hospital room. 71 Wash.2d 52, 54, 426 P.2d 500 (1967). Mr. Kelter was in the hospital and under investigation for causing a fatal car crash. The court refused to conclude that Mr. Kelter was in custody even though he was confined to his hospital room because he had not “been placed under arrest or otherwise restrained by the police.” Id. Mr. Kelter was restricted to a hospital room, by his own injuries, not by police. Mr. Butler similarly was restricted to his hospital room because of his injuries. No police were stationed inside or outside Mr. Butler's room. And it was Mr. Butler's nurse, Mr. Henry, who ultimately controlled access to Mr. Butler. These facts support the court's conclusion that Mr. Butler was not in custody when he spoke with Detective Miller.

¶ 14 Moreover, custody or not, we, like the trial court, would conclude that Mr. Butler's statements were voluntary. A suspect can “voluntarily waive his Miranda rights even when he is in the hospital, on medication, and in pain.” United States v. George, 987 F.2d 1428, 1430 (9th Cir.1993). If a suspect speaks to police while on narcotic drugs, the admissibility of the statement depends on the “unique facts of the case.” State v. Gregory, 79 Wash.2d 637, 642, 488 P.2d 757 (1971), overruled on other grounds by State v. Rogers, 83 Wash.2d 553, 520 P.2d 159 (1974). The court found that Mr. Gregory's “rationality” was not “hindered, diminished or in any manner affected by [Codeine and Demerol].” Gregory, 79 Wash.2d at 642, 488 P.2d 757. And that Mr. Gregory “freely and unhesitatingly answered questions” even though he was tired. Id.

¶ 15 Again, the facts supporting the court's refusal to suppress are unchallenged. He answered the detective's questions appropriately. Report of Proceedings (RP) at 29, 30; CP at 108. His attending nurse, Mr. Henry, thought he was well enough to speak to detectives. There is no showing that the detective took advantage of his weakened condition. Indeed he stopped the questioning when Mr. Butler became too tired to talk. Detective Miller read Mr. Butler the Miranda warnings. And Detective Miller left after the interview and did not arrest him until weeks later. CP at 108. We affirm the court's denial of Mr. Butler's motion to suppress his statements to police.

Kidnapping—Sufficient Evidence

¶ 16 Mr. Butler next argues that any kidnapping here was “incidental” to the robberies because abduction requires restraint and the restraint here was merely incidental to the robbery and is not enough then to support an...