State v. Ferguson, 31104-2-I

• Decision Date: 17 January 1995
• Docket Number: No. 31104-2-I,31104-2-I
• Citation: 886 P.2d 1164,76 Wn.App. 560
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Respondent v. Deaon L. FERGUSON, Appellant.

Page 560

76 Wn.App. 560

886 P.2d 1164

The STATE of Washington, Respondent v. Deaon L. FERGUSON, Appellant.

No. 31104-2-I.

Court of Appeals of Washington,

Division 1.

Jan. 17, 1995.

Brett A. Purtzer, Law Office of Monte Hester, Tacoma, for appellant.

Michael Thomas Jeremiah Hogan, Deputy Pros. Atty., Seattle, for respondent.

KENNEDY, Judge.

Deaon Ferguson appeals his conviction of vehicular homicide, contending (1) that the trial court erred in failing to suppress his inculpatory statements made to police officers at the scene of the fatal accident before Ferguson was given his Miranda warnings; ¹ and (2) that the trial

court erred in refusing to instruct the jury that vehicular homicide by disregard for the safety of others (aggravated negligence) is a lesser included offense of vehicular homicide by operating a vehicle in a reckless manner. Finding no error, we affirm.

FACTS

Shortly after 11:30 p.m. on June 8, 1991, defendant Ferguson drove his Volkswagen Fox northbound on 124th Street into the intersection of 124th and the Kent-Kangley Road, headlong into the passenger side of an eastbound Nissan Pulsar which was passing through the intersection at the same time. Raymond Carver, an occupant of the Pulsar, died at the scene of the accident. Terrina Rowan, the other occupant of the Pulsar, was seriously injured. Ferguson was injured slightly when his head struck the windshield of his car, cracking the windshield.

From the disputed evidence at the trial, a rational jury could have concluded either that Ferguson ran a red light or that the Pulsar ran a red light or that the Pulsar made a left turn directly in front of the Volkswagen, both vehicles entering the intersection on a green light. ²

The speed limit for the Kent-Kangley Road was 45 m.p.h. The speed limit for 124th was 35 m.p.h. The State's expert believed that the Pulsar and the Volkswagen each entered the intersection at or about the posted speed limit for its respective direction of travel. The Volkswagen skidded 52 feet from the point of impact, at a post-collision speed between 24 and 33 m.p.h. The Pulsar, which was essentially The first police officer to arrive on the scene was an off-duty sheriff's deputy, Officer Garnett, who happened to be driving by. By department policy, he was required to render assistance until on-duty police arrived. After learning that 911 had been called and that a licensed practical nurse (Audrey Hall) was trying to help Carver and Rowan, Officer Garnett approached Ferguson. Ferguson was out of his car, seated on a grassy knoll at the northeast corner of the intersection.

                torn in half by the impact, travelled 90 feet from the point of impact, dragging its semi-severed rear passenger compartment behind it. 3  The State's [886 P.2d 1166] expert was not able to determine the post-collision speed of the Pulsar
                

Garnett asked Ferguson if he had been driving the Volkswagen. Ferguson answered yes. Garnett asked for Ferguson's driver's license. Ferguson responded that it was in his vehicle. From Ferguson's facial expression and general demeanor, Garnett believed Ferguson to have been drinking. He asked Ferguson if this was so. Ferguson stated that he had been drinking. Garnett asked how much. Ferguson admitted to two mixed drinks.

Garnett then assisted with traffic control, but kept an eye on Ferguson, as a bystander had said Ferguson had been trying to leave the area.

Trooper Larrigan of the Washington State Patrol arrived at the scene shortly after midnight. Garnett handed him Ferguson's driver's license and told him Ferguson had been drinking. Larrigan approached Ferguson and asked if he had been drinking. Ferguson said that he had had a couple of drinks. By this time, an aid crew was assisting Ferguson. Larrigan told the crew not to transport Ferguson to the hospital just yet, and went to check on the people in the Pulsar and to get his accident report forms out of his patrol car.

Learning that Carver had died at the scene, Larrigan returned to Ferguson, who by then had been strapped to a backboard and placed in an ambulance. Larrigan told Ferguson he was under arrest for vehicular homicide and read him his Miranda rights. Ferguson stated that he wanted to talk to a lawyer. He was asked no further questions.

Larrigan asked a member of the aid crew to draw blood samples from Ferguson, and this was done. Ferguson was then transported to the hospital. Two hours later, Ferguson was released, not to police custody but into the care of his roommate.

Ferguson's blood test revealed a .19 blood alcohol level, ⁴ nearly twice the legal limit for drivers in this state.

Ferguson was charged with vehicular homicide by two of the three statutory alternative means, the driving while under the influence (DWI) means and the recklessness means. ⁵

In a pretrial suppression hearing, Ferguson sought to have his statements to Officer Garnett and Trooper Larrigan that he had been drinking suppressed, in that these statements were made before he was given his Miranda warnings.

Officer Garnett testified at the suppression hearing that Ferguson had not been free to leave the scene at the time Garnett questioned him. Referring to Ferguson's statutory duty to remain at the scene of an injury accident, Garnett stated that if Ferguson had tried to leave, Garnett would have restrained him. ⁶ Trooper Larrigan testified that Ferguson The trial judge denied Ferguson's motion to suppress, ruling that Ferguson was not "in custody" as defined by Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) and State v. Sargent, 111 Wash.2d 641, 762 P.2d 1127 (1988) at the time he responded to the questions of Officer Garnett and Trooper Larrigan. The case then proceeded to trial.

was free to leave the scene at the time Larrigan first contacted him.

After both sides had rested, Ferguson asked the trial judge to instruct the jury that operation of a motor vehicle with disregard for the safety of others, the third (uncharged) statutory means of committing vehicular homicide, is a lesser included offense of operation of a motor vehicle in a reckless manner. ⁷ This the trial judge declined to do, although he did instruct the jury that DWI and negligent driving were lesser included offenses, respectively, of negligent homicide by the DWI and recklessness means. ⁸

The jury returned a general verdict of guilty of vehicular homicide. This timely appeal followed.

DISCUSSION

I Custodial Interrogations

Ferguson first contends that the trial court erred in determining that he was not "in custody" for purposes of Miranda ⁹ when Officer Garnett and Trooper Larrigan questioned him about his drinking as he sat on the grassy knoll at the scene of the accident. The trial court did not err.

"Custody" for the purposes of Miranda is narrowly circumscribed and requires formal arrest or restraint on freedom of movement to a degree associated with formal arrest. State v. Post, 118 Wash.2d 596, 606, 826 P.2d 172, 837 P.2d 599 (1992); State v. Sargent, 111 Wash.2d at 649-50, 762 P.2d 1127. The inquiry into restraint is an objective one: how would a reasonable person in the suspect's position have understood the situation? Berkemer, 468 U.S. at 442, 104 S.Ct. at 3151. The issue is not whether a reasonable person would believe he or she was not free to leave, but rather "[w]hether such a person would believe he was in police custody of the degree associated with formal arrest". 1 W. LaFave & J. Israel, Criminal Procedure § 6.6, at 105 (Supp.1991).

In Berkemer, the United States Supreme Court said:

[T]he usual traffic stop is more analogous to a so-called "Terry stop", see Terry v. Ohio, 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889] (1968), than to a formal arrest. Under the Fourth Amendment, we have held, a policeman who lacks probable cause but whose observations lead him reasonably to suspect that a particular person has committed ... a crime, may detain that person briefly in order to investigate the circumstances that provoke suspicion. [T]he stop and inquiry must be reasonably related in scope to the justification for their initiation. Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond.... The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not "in custody" for the purposes of Miranda.

(Footnotes, citations and some quotation marks omitted.) Berkemer, 468 U.S. at 439-40, 104 S.Ct. at 3150. Accord, Heinemann v. Whitman Cy., 105 Wash.2d 796, 808, 718 P.2d 789 (1986) (request for performance of field sobriety tests during routine traffic stop does not amount to custody so as to require Miranda warnings). ¹⁰

Ferguson argues that Berkemer does not apply because there is nothing "ordinary" or "routine" about the investigation of a vehicular homicide. We disagree. The seriousness of the potential traffic charge does not alter the analysis. Certainly, a driver who is involved in a fatality road accident is likely to be detained longer than a driver who is pulled over for committing a relatively minor traffic infraction. But as the Supreme Court noted in Berkemer, 468 U.S. at 439, 104 S.Ct. at 3150 (quoting Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)), " '[t]he stop and inquiry must be reasonably related in scope to the justification for their initiation.' "

An argument similar to Ferguson's was rejected in Cordoba v. Hanrahan, 910 F.2d 691 (10th Cir.), cert. denied, 498 U.S. 1014, 111 S.Ct. 585, 112 L.Ed.2d 590 (1990). There, the driver also argued that he was in custody...