State v. Curry, No. 27455-1-III (Wash. App. 10/15/2009)

• Decision Date: 15 October 2009
• Docket Number: No. 27750-0-III.,No. 27455-1-III.
• Citation: State v. Curry, No. 27455-1-III (Wash. App. 10/15/2009), No. 27455-1-III., No. 27750-0-III. (Wash. App. Oct 15, 2009)
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. JEROME CURRY JR., Appellant. In the Matter of the Personal Restraint of: JEROME CURRY JR., Petitioner.

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Unpublished Opinion

STATE OF WASHINGTON, Respondent, v. JEROME CURRY JR., Appellant In the Matter of the Personal Restraint of: JEROME CURRY JR., Petitioner.

No. 27455-1-III.

No. 27750-0-III.

Court of Appeals of Washington, Division Three.

Filed: October 15, 2009.

Appeal from Spokane Superior Court. Docket No: 07-1-04532-6. Judgment or order under review. Date filed: 09/23/2008. Judge signing: Honorable Tari S Eitzen.

Counsel for Appellant(s), William D. Edelblute, Attorney at Law, 300 N Argonne Rd Ste 203, Spokane Valley, WA, 99212-2839.

Counsel for Respondent(s), Mark Erik Lindsey, Spokane County Prosecuting Attorneys, 1100 W Mallon Ave, Spokane, WA, 99260-2043.

UNPUBLISHED OPINION

SWEENEY, J.

This is a prosecution for assault and harassment. The appellant assigns error to a number of the court's rulings including the admission of his confession and the admission of evidence of his prior bad acts. We conclude that the rulings are supported by tenable reasons and we affirm the convictions.

FACTS

Jerome Curry Jr. and his ex-wife, Bonnie Curry, lived together with their two children at the home of Ms. Curry's parents. Mr. Curry became angry one night because Ms. Curry drank with friends after work without telling him. The next day Mr. Curry told Ms. Curry he was going to damage her car while she was at work at Walmart. The police searched for but did not find Mr. Curry in the Walmart parking lot.

Mr. Curry met Ms. Curry at her car when she got home that night and pushed her against it. He then followed her inside the house and told her he was going to burn it down.

Mr. and Ms. Curry went outside again. Mr. Curry picked up a box knife. He grabbed Ms. Curry's shirt and demanded the car keys. He made Ms. Curry get into the car with him and threatened to drive the car through the house where their children were sleeping. He told Ms. Curry she was lucky he did not have a gun and that he wanted to hurt her "really bad." Report of Proceedings (RP) at 183. He also said he was going to drive the car through a school to kill himself. Mr. Curry eventually let Ms. Curry out of the car, and he drove away. Ms. Curry's mother called the police.

Mr. Curry had returned to the house and was sitting in the car when Corporal David Staben and Officers Michael Russo and David Beckley arrived. Dispatch had warned the officers that Mr. Curry might be carrying a switchblade or a weapon. The officers ordered Mr. Curry out of his car, handcuffed him, and frisked him for weapons.

Officer Russo then read Mr. Curry his Miranda¹ rights. Mr. Curry acknowledged and waived his rights. He then talked to Officer Russo and Corporal Staben.

Corporal Staben believed Mr. Curry was impaired by drugs or alcohol. Mr. Curry told Corporal Staben he had taken a depressant and smoked marijuana. Corporal Staben asked Mr. Curry to perform several field sobriety tests. Mr. Curry tried but then told the corporal he could not do them. Corporal Staben also asked Mr. Curry to submit to a drug recognition evaluation. Mr. Curry refused. Corporal Staben determined that Mr. Curry was impaired based on Mr. Curry's performance on the field sobriety tests and arrested him. Mr. Curry became agitated and told Corporal Staben to take him to jail.

The State charged Mr. Curry with one count of fourth degree assault for assaulting Ms. Curry. It also charged him with one count of harassment for threatening to kill Ms. Curry or another person and for placing her in reasonable fear that he would carry out the threats.

Mr. Curry moved to suppress the statements he made to police. He argued that he was too intoxicated to waive his Miranda rights and that his statements were coerced.

The court concluded that Mr. Curry knowingly and voluntarily waived his rights and that his statements to police were therefore admissible. It based its conclusions on several findings:

• Officer Russo read Mr. Curry his rights when he was in custody;

• Mr. Curry said he understood his rights;

• Mr. Curry waived his rights;

• Mr. Curry was impaired;

• He was able to track and respond coherently to the corporal's questions and instructions;

• He was able to make volitional decisions; and

• He understood that he was under arrest.

RP at 90-92.

The trial court also ruled on several motions in limine. Mr. Curry moved to exclude evidence of his prior misconduct. The court did not rule but told the lawyers to instruct their witnesses not to talk about these past events without getting permission.

Ms. Curry's mother, Rose Bacon, testified that "when [Mr. Curry] gets mad, he gets violent." RP at 126. And Ms. Curry testified that she feared Mr. Curry was going to carry out his threat to damage her car because he had done so before. She also testified that she feared Mr. Curry would make good his threat to burn down her parents' house because he had grabbed a gas can and made the same threat before. Mr. Curry objected.

The trial court concluded that the evidence was relevant to show that Ms. Curry had a reason to fear Mr. Curry and overruled the objection. The court also allowed Corporal Staben and Officer Beckley to testify that dispatch warned them Mr. Curry might have been armed with a switchblade.

A jury found Mr. Curry guilty of harassment and fourth degree assault.

DISCUSSION

Motion to Suppress Statements

Mr. Curry first contends that the trial court erred by admitting statements he made to police. We review a trial court's refusal to suppress a defendant's statements by first deciding whether substantial evidence supports the trial court's findings and next deciding whether those findings support the court's conclusions. State v. Grogan, 147 Wn. App. 511, 516, 195 P.3d 1017 (2008). Unchallenged findings are verities on appeal.

State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997).

Mr. Curry first argues that the trial court's decision should be reversed because the court failed to enter written findings and conclusions after the CrR 3.5 hearing. A court must make written findings and conclusions following a suppression hearing. CrR 3.5(c). The trial court did not do that here. But it made oral findings that are sufficient to permit review. Grogan, 147 Wn. App. at 516.

A trial court properly admits a defendant's statements where the court's findings and the record support the court's conclusion that the defendant was informed of his Miranda rights and knowingly and intelligently waived those rights before making the statements. State v. Reuben, 62 Wn. App. 620, 624, 814 P.2d 1177 (1991). A defendant knowingly waives his rights if he is fully aware of the rights being waived and the consequences of waiver. State v. Corn, 95 Wn. App. 41, 58, 975 P.2d 520 (1999). And he voluntarily waives his rights if he does so by free choice, not by intimidation, coercion or deception. Id. at 57-58.

Mr. Curry asserts that he could not knowingly and voluntarily waive his Miranda rights because he was under the influence of drugs. Intoxication is a factor that courts consider when determining whether a waiver was made knowingly, but it does not automatically invalidate a waiver. State v. Aten, 130 Wn.2d 640, 664, 927 P.2d 210 (1996); State v. Saunders, 120 Wn. App. 800, 810, 86 P.3d 232 (2004).

The trial court found that Officer Russo advised Mr. Curry of his rights and that he waived them. There is no showing in this record that police intimidated, coerced, or deceived Mr. Curry into waiving his rights. The court also found that Mr. Curry "understood [the police officers'] instructions and questions, . . . compl[ied] with the questions, [and made] a volitional decision to answer them or not answer them" even though Mr. Curry was under the influence of drugs. RP at 92. The record shows that Mr. Curry coherently answered officers' questions about the event and whether he had been drinking. It shows that he told Corporal Staben he could not do a field sobriety test after the officer gave Mr. Curry instructions and after he tried to follow those instructions.

The record shows that he refused to submit to a voluntary drug recognition evaluation.

All of this supports the court's conclusion that Mr. Curry's waiver was knowing and voluntary. And the court then properly refused to suppress those statements.

Prior Misconduct

Mr. Curry next contends that the court should have suppressed evidence of his prior bad acts, specifically testimony that

• when Mr. Curry gets mad, he gets violent;

• Mr. Curry has caused physical damage to Ms. Curry's car;

• Mr. Curry has obtained a gas can and threatened to burn down the house.

We review a trial court's decision to admit evidence of prior misconduct for abuse of discretion. State v. Fisher, 165 Wn.2d 727, 745, 202 P.3d 937 (2009). A court abuses its discretion when it exercises its discretion on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

Evidence of a defendant's prior misconduct is not admissible if the only purpose is to show the defendant's character or general propensities. ER 404(b). Prior bad acts generally show propensity to commit the crime or a crime. The evidence must be offered for some other reason. ER 404(b). And there were other reasons for admitting the evidence here. The State offered the evidence, and the court admitted it, to show why Ms. Curry had reason to fear Mr. Curry. State v. Barragan, 102 Wn. App. 754, 759, 9 P.3d 942 (2000); State v. Ragin, 94 Wn. App. 407, 411-12, 972 P.2d 519 (1999). The jury was entitled, in fact required, to pass on whether Ms. Curry's fear was reasonable.

Barragan, 102 Wn. App. at 759-60; Ragin, 94 Wn. App. at 411-12.

The court also balanced the probative value of this evidence against its prejudicial effect. The record the trial court made here convinces us that the court properly applied the two-part test for admitting ER 404(b) evidence. It provided tenable reasons for admitting the evidence. There was no abuse...