State v. Madrid
| Decision Date | 01 April 2021 |
| Docket Number | No. 37482-3-III,37482-3-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. ADRIAN ADAME MADRID, Appellant. |
SIDDOWAY, J. — Adrian Adame Madrid appeals his conviction for second degree burglary. He contends that because the verbal notice that he was trespassed from a Moses Lake convenience store was unconstitutionally vague, the State failed to prove his entry was unlawful; it was error to admit, as evidence, police officer body camera video that was recorded in violation of Washington's privacy act; and he received ineffective assistance of counsel.
Finding no error and no merit to issues raised by Mr. Adame Madrid in a pro se statement of additional grounds, we affirm.
On October 14, 2019, Kimberly Andrews, an evening shift supervisor at Half Sun Travel Plaza in Moses Lake, told Adriane Adame Madrid that he was no longer welcome at the business. Police officers on a break happened to arrive at the plaza's convenience store at that time, and Ms. Andrews asked if they would trespass Mr. Adame Madrid from the Travel Plaza. Mr. Adame Madrid was still outside, and one of the officers, Sergeant Kyle McCain, spoke to him, telling him he was not welcome at the business and if he came back, he could be arrested.
Less than a month later, Mr. Adame Madrid returned to the store. Rosa Arnold, a store employee, saw him take a $10.99 "air chuck"1 from a shelf in the store's automotive aisle, put it in his left pants pocket and walk out without paying. Report of Proceedings (RP2) at 57-58. She and another employee followed Mr. Adame Madrid, stopped him, and asked him to turn out his pockets. He removed the air chuck from his pocket, placed it on the ground, and turned out his pockets as requested.
The police were called, and upon their arrival one of the officers, Colton Ayers, read Mr. Adame Madrid his Miranda3 rights. Mr. Adame Madrid agreed to speak to the officers and told them he was not aware that he was not supposed to return to the property. He asked the officers to show him any written trespass notice issued against him. Evidently, no written notice was prepared on October 14.
Mr. Adame Madrid was charged with second degree burglary.
A CrR 3.5 hearing was conducted, at which the State called Sergeant McCain, Officer Ayers, and a third officer to whom Mr. Adame Madrid had made statements, and each testified generally about the statements made by Mr. Adame Madrid and the circumstances under which the statements were made. The trial court found all the statements to be admissible, subject to any motions in limine about their substance. No body camera video was presented during the CrR 3.5 hearing, but at the conclusion of the hearing, the prosecutor mentioned that he intended to provide to defense counsel by the following week "the parts of the body cams that the State intends to display." RP (Nov. 8, 2019) at 42. Defense counsel voiced no objection.
At Mr. Adame Madrid's one-day jury trial, the State called as witnesses Ms. Andrews, Ms. Arnold, Sergeant McCain, and Officer Ayers. Without objection by the defense, the State played redacted sections of the video captured by Sergeant McCain's and Officer Ayers's body cameras during their contact with Mr. Adame Madrid.
In the video that was presented of Sergeant McCain's contact, the following exchange took place:
Ex. 5, 30 sec. to 1 min., 48 sec.
In the video that was played of Officer Ayers's contact, the following was said:
Ex. 6, 0.00 sec. to 2 min., 22 sec. Mr. Adame Madrid continued to protest that he was never given a written notice of trespass and insisted, "[S]ometimes they'll just kick you off somebody's property for a little bit." Ex. 6, 2 min., 58 sec. to 3 min., 3 sec.
The defense presented no evidence.
The jury found Mr. Adame Madrid guilty. He appeals.
Mr. Adame Madrid makes a dozen assignments of error on appeal that fall into four categories. He (1) argues that Ms. Andrews's and Sergeant McCain's statements that he was not allowed on the Travel Plaza premises did not afford him due process; (2) challenges the sufficiency of the evidence; (3) contends that the body camera video presented at trial was recorded in violation of the "Privacy Act," chapter 9.73 RCW; and (4) argues that his trial lawyer provided ineffective assistance by failing to object to admission of the video and failing to request a jury instruction on a lesser included charge of third degree theft.
Clerk's Papers (CP) at 27; RCW 9A.52.030. The jury was instructed that "[a] person enters or remains unlawfully in or upon premises when he or she is not then licensed, invited, or otherwise privileged to so enter or remain." CP at 26.
"A private property owner may restrict the use of its property . . . so long as the restrictions are not discriminatory." State v. Kutch, 90 Wn. App. 244, 247, 951 P.2d 1139 (1998) (citing State v. Blair, 65 Wn. App. 64, 67, 827 P.2d 356 (1992)). A person's presence may be rendered unlawful by a revocation of the privilege to be there. Id. at 249 (citing State v. Collins, 110 Wn.2d 253, 258, 751 P.2d 837 (1988)). "The right to exclude extends even if the property is otherwise open to the public." Id. at 247 (citing State v. McDaniels, 39 Wn. App. 236, 240, 692 P.2d 894 (1984)).
While it is a common practice for businesses and police to create a written record when notifying a person that his privilege to enter premises is revoked and to provide the person with a copy, neither is required. Id. at 248. "A verbal notice might just as adequately inform [a person] that his invitation has been revoked." Id. In McDaniels, for instance, the juvenile defendant and two friends entered a church that was open for worship or prayer. 39 Wn. App. at 240. A church member who concluded the youths had not entered for evening services confronted them and implicitly told them to leave. They did, but McDaniels then surreptitiously reentered and stole a coat. McDaniels was charged with second degree burglary. Evidence of the church member's verbal directiveto leave was sufficient to prove that McDaniel was not licensed, invited, or privileged to re-enter the church.
Mr. Adame Madrid nonetheless argues that he was denied due process because Ms. Andrews's and Sergeant McCain's directives to leave the Travel Plaza and not come back were vague.
The due process vagueness doctrine under the Fourteenth Amendment to the United States Constitution and article I, section 3 of the Washington...
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