State v. Calo
| Decision Date | 27 December 2018 |
| Docket Number | No. 49794-8-II,49794-8-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. WILLIAM MANUEL ALVAREZ CALO, Appellant. |
JOHANSON, J. — William Manuel Alvarez Calo appeals his jury trial convictions for first degree felony murder and first degree burglary, as well as his conviction for attempted first degree robbery that merged with this first degree felony murder conviction. He argues that (1) the trial court erred in admitting audio and video recordings of four interviews that he gave to the police before he was charged with the current offenses, (2) the evidence is insufficient to support the attempted first degree robbery conviction, and (3) the trial court erred when it failed to remove all references to the merged attempted first degree robbery conviction from the judgment and sentence. Calo also raises numerous claims in his statement of additional grounds for review (SAG).1 Additionally, in supplemental briefing, Calo challenges the imposition of certain legal financial obligations (LFOs) in light of our legislature's 2018 amendments to the LFO statutes.
We hold that (1) the trial court did not err when it denied Calo's motion to suppress the four police interviews, (2) the evidence is sufficient to support the attempted first degree robbery conviction, and (3) the judgment and sentence must be amended to strike all references to the vacated attempted first degree robbery conviction. We further hold that Calo is not entitled to relief based on any of the grounds he raises in his SAG. Finally, we hold that because the 2018 amendments apply to this case, the trial court should reexamine the $200 filing fee, the $100 deoxyribonucleic acid (DNA) collection fee, and the interest provisions it originally imposed in light of those amendments. Accordingly, we affirm the convictions but remand this matter to the trial court for further action consistent with this opinion.
On November 12, 2012, Robert Smith, Jiffary Mendez, Michael Rowland, Fidel Gaytan Gutierrez, Mazzar Robinson, and Ray Turner arrived at Juan Hidalgo-Mendoza's apartment in an area of Lakewood, Washington, known as Chocolate City because of its reputation as a place to go to obtain heroin, intending to steal drugs and money. Upon entering the apartment, one of the men shot and killed Jaime Diaz-Solis. All of the men immediately fled.
Hidalgo-Mendoza, who had been in another room when the shooting occurred, fled the apartment through the bedroom window and had a neighbor contact the police. He then returned to the apartment and discovered that Diaz-Solis had been shot. Hidalgo-Mendoza moved Diaz-Solis outside and then removed a gun, drugs, and $38,000 from the apartment and put them under the neighbor's deck and in his truck. When the paramedics arrived, they attempted to revive Diaz-Solis, but they were unable to do so. Diaz-Solis died from the gunshot wound.
During the murder investigation of Diaz-Solis, officers found the items Hidalgo-Mendoza had hidden under the deck. Law enforcement officers later discovered large amounts of heroin and methamphetamine hidden inside the walls of Hidalgo-Mendoza's apartment. Hidalgo-Mendoza and his cousin Alberto Mendoza Ortega, who was also known as Yeto,3 were subsequently charged with drug trafficking related to the drugs found in the apartment. But several months passed without a lead in the murder investigation.
In February 2013, Calo was charged in Lakewood with a misdemeanor driving offense and in Pierce County with second degree identity theft and third degree driving with a suspended license. On February 11, Calo asked Kristin Fay, his attorney in the Lakewood misdemeanor matter, to put him in contact with the officers who were investigating Diaz-Solis's murder. Calo told Fay that he wanted to provide information on the murder in exchange for the dismissal of hisLakewood and Pierce County cases. Fay continued the Lakewood case so she could consult her supervisor Ken Harmell.
Fay consulted Harmell and attempted to contact Mary Kay High, Calo's counsel on his Pierce County felony charge. Fay was unable to contact High. Sometime after February 11, Fay "caused a message to be sent to Detective [Les] Bunton" about Calo's request. Clerk's Papers (CP) at 232.
On February 22, Calo, who was in custody on a felony charge in Pierce County, was brought from the Pierce County Jail to the Lakewood Municipal Court for a hearing on the Lakewood matter. Harmell assumed Calo's representation in the Lakewood matter. Detective Bunton and Lakewood Police Department Investigator Jason Catlett were also present, and they talked to Harmell about speaking with Calo.
Harmell then met with Calo and an interpreter to discuss whether Calo should talk to the officers. During the 20- to 30-minute meeting, Harmell told Calo that he (Harmell) thought it "was a bad idea to talk with the detectives" and expressed his concern about Calo's safety due to the type of information Calo was planning to provide. CP at 233. Calo dismissed Harmell's attempt to talk him (Calo) out of meeting with the officers and "was not concerned about being implicated and was positive that he would not get caught up with the murder." CP at 233. Despite Harmell's advice, Calo agreed to talk to the officers at the Lakewood Police Station.
Detective Bunton and Investigator Catlett transported Calo to the Lakewood Police Station for the interview.5 At that time, Calo was in jail clothing and was handcuffed. Because he was in custody on the Pierce County charges, Calo was not free to leave.
At no point during the interview process did the officers advise Calo of his Miranda6 rights. Calo told the officers about his contacts and involvement with a narcotics cartel, identified the photographs of some of the people he was talking about, and implicated some of his associates in the murder.7
Although "Harmell [had] declined to accompany . . . Calo to the interview," Harmell subsequently talked to the prosecutors in both matters about dismissing the pending charges against Calo. CP at 233. Harmell also attempted to contact High about the felony case. Calo's Lakewood misdemeanor case was dismissed on March 5. On March 13, the Pierce County felony case was dismissed, and Calo ultimately pleaded guilty to an amended charge of one count of second degree driving while license suspended.
On March 18, Calo, who was no longer in custody, met with the officers for a second time at the Lakewood Police Department. The officers did not advise Calo of his Miranda rights during this interview.
During this interview, Calo provided more information about the murder and drug trafficking activities and identified some suspects from photo montages. The officers questioned Calo about other evidence they had obtained that contradicted part of his February 22 statement.
At this time, Investigator Catlett agreed to pay Calo, and Calo "was acting as a paid informant." CP at 234. Calo met with Investigator Catlett at least two more times before March 26, but these meetings were not recorded.
On March 26, Calo, who was still not in custody, met for a third time with the officers at the police station. Again, the officers did not advise Calo of his Miranda rights despite having probable cause to believe that Calo was "a co-conspirator or was rendering criminal assistance." CP at 234.
During this interview, Calo "made incriminating statements including that he had a part in arranging the hit to happen." CP at 234. After this meeting, the officers spoke to the prosecutor and had probable cause to arrest Calo for murder and conspiracy.
On June 21, Calo met with the officers in an unmarked police vehicle. This time, the officers advised Calo of his Miranda rights.
Investigator Catlett read Calo his rights in English because Calo told them that he was dyslexic and did not read English well. After signing the waiver form and talking to the officers for 45 minutes to an hour, the officers arrested Calo.
The State charged Calo with first degree felony murder (count I), conspiracy to commit first degree murder (count II), first degree burglary (count III), attempted first degree robbery (count IV), and tampering with a witness based on Calo having contact with Mendez while in jail (count V). The State alleged that the predicate offense for the felony murder charge was either first degree robbery or first degree burglary. Calo was assisted by an interpreter throughout proceedings on these charges. The trial court later dismissed the conspiracy to commit first degree murder charge.
Before trial, Calo moved to suppress the statements he made during the February 22, March 18, March 26, and June 21 interviews. Calo argued that his statements should be suppressed because Harmell and Fay provided ineffective assistance of counsel by "encourage[ing] him to submit to a custodial interrogation providing information about involvement in a murder without ever advising him of the risks and possible consequences." CP at 1. He further argued that the statements were inadmissible because (1) he was in custody when he made the statements and was not advised of his Miranda rights and (2) despite having probable cause, the officers delayed his arrest in order to obtain his statements.
Detective Bunton, Investigator Catlett, Fay, Harmell, High, and Pierce County Deputy Prosecutor Sven Nelson testified at the suppression hearing. The video and audio tapes of the four interviews were played for the trial court.
In the video of the February 22 interview, Detective Bunton and Investigator Catlett heard from Calo about his involvement in drug trafficking with several individuals, including Yeto andGerardo Hernandez-Sandoval, whom Calo knew as Borrego....
To continue reading
Request your trial