State v. Mayer

• Decision Date: 22 October 2015
• Docket Number: No. 90846–0.,90846–0.
• Citation: 362 P.3d 745,184 Wash.2d 548
• Parties: STATE of Washington, Respondent, v. Nicholas Keith MAYER, Petitioner.
• Court: Washington Supreme Court

184 Wash.2d 548

362 P.3d 745

STATE of Washington, Respondent,

v.Nicholas Keith MAYER, Petitioner.

No. 90846–0.

Supreme Court of Washington, En Banc.

Argued June 11, 2015.

Decided Oct. 22, 2015.

Barbara L. Corey, Attorney at Law, Tacoma, WA, for Petitioner.

Rachael Rogers Probstfeld, Clark County Prosecuting Attorney's Office, Vancouver, WA, for Respondent.

WIGGINS, J.

¶ 1 We must determine whether a deputy sheriff Inadequately advised the defendant of his rights under Miranda¹ when he initially told the defendant that a lawyer would be appointed for him prior to questioning if he could not afford one but also said that no lawyer would be appointed for him unless he was arrested, jailed, and taken to court. The deputy did not clarify that the defendant was not obligated to respond to questions until he had the opportunity to confer with a lawyer. We hold that although this Miranda advisement was contradictory and confusing and thus violated the defendant's Miranda rights, the error was harmless in light of the overwhelming untainted evidence of Nicholas Mayer's guilt. Accordingly, we affirm the Court of Appeals and sustain the defendant's conviction.

FACTS

¶ 2 One evening, two hooded gunmen robbed KC Teriyaki, a casual restaurant in Salmon Creek, while the employees were closing the restaurant for the day. The masked gunmen pushed one of the employees inside the restaurant; pointed a gun at the employee; grabbed a bag from inside; and then fled with the bag, which contained cash from the day's sales. Police responded to the scene and interviewed the employees as well as the restaurant's owner.

¶ 3 The timing and method of the robbery led police to suspect that someone with inside knowledge was involved in the planning of the robbery. The owner identified Emily Mayer as a disgruntled ex-employee, and Emily and her brother—Mayer, the defendant in the instant case—became suspects.² An anonymous tipster called 911 shortly thereafter and told police that he had overheard Mayer bragging about robbing a restaurant. The caller provided a description of Mayer's vehicle. Police then stopped the vehicle, detained Mayer and the vehicle's other occupants, and transported them to the police station for questioning regarding the robbery.³

¶ 4 Deputy Tom Dennison of the Clark County Sheriff's Office questioned Mayer in an interview room at the police station. Dennison began by reading Mayer his Miranda rights and asking if he could record the interview. Mayer initially waived his Miranda rights and agreed to the recording. Once recording began, Dennison again advised Mayer of his Miranda rights:

You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right at this time to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before questioning if you wish. You can decide at any time to exercise these rights and not answer any questions or make any statements.

This time, however, Mayer asked Dennison to clarify how he could obtain appointed counsel:

DEPUTY DENNISON: ... Do you understand each of these rights as I've explained them to you?

MR. MAYER: Yes. Um, If I wanted an attorney and I can't afford one, what—what would—?

DEPUTY DENNISON: If you wanted an attorney—you know, if you were charged with a crime and arrested, if you wanted an attorney and couldn't afford one, the Court would be willing to appoint you one. Do you want me to go over that with you again?

MR. MAYER: Yeah, but how would that work? Will you be—how it—how I—

DEPUTY DENNISON: You're not under arrest at this point, right?

MR. MAYER: Oh, okay. Okay.

DEPUTY DENNISON: So, if you were, then you would be taken to jail and then you'd go before a judge and then he would ask you whatever at that point, if you were being charged, you would [sic] afforded an attorney if you couldn't hi—you know, if you weren't able to afford one.

MR. MAYER: All right. I understand.

DEPUTY DENNISON: Understand?

MR. MAYER: Yeah.

DEPUTY DENNISON: Okay. So you do understand your rights?

MR. MAYER: Yes.

After this exchange, Mayer waived his Miranda rights, agreed to speak with Dennison regarding the robbery, and made incriminating statements. Mayer admitted, among other things, that on the day of the robbery he met with his sister Emily, who drove the getaway car, and John Taylor, the other robber; they drove to the teriyaki restaurant; Mayer entered the restaurant with Taylor; Taylor was armed with a handgun, and Mayer had a knife; Mayer told the employees "give me the money"; Taylor grabbed the deposit bag containing money; Mayer ran from the restaurant with Taylor; they were picked up by Emily; and Mayer split the proceeds of the robbery with Taylor.

¶ 5 Mayer was arrested and charged with 11 criminal counts (later reduced to 10 counts), including robbery in the first degree. Mayer moved to suppress the incriminating statements he made during his interview with Dennison, but the superior court denied the motion after a hearing.

¶ 6 During the five-day trial, the State introduced Mayer's confession and called several witnesses who testified regarding the events surrounding the robbery and Mayer's involvement in the robbery. Among the witnesses were Mayer's accomplice and sister Emily; his other accomplice, John Taylor; Mayer's girlfriend, Sarah Baker; Mayer's friend Brandon Sheldon, to whom Mayer entrusted a revolver around the time of the robbery; restaurant employee and robbery victim Al Juarismi Ortiz Garcia (Ortiz); eyewitness Bobbie Woodworth; and Matthew Scott, the tipster who alerted the police to Mayer's whereabouts.

¶ 7 Ortiz and Woodworth described the robbery, both testifying that two masked gunmen entered KC Teriyaki, pushed one of the employees inside, pointed a gun at the employee, and then fled. Ortiz testified that one of the robbers carried a revolver and pointed it at Ortiz and demanded money. One of the two robbers then grabbed the money bag before fleeing.

¶ 8 Because both robbers were masked, neither Ortiz nor Woodworth identified them, but several other witnesses implicated Mayer as one of the two robbers. Mayer's two accomplices, Emily and Taylor, testified at length regarding the planning and execution of the robbery, including the details of Mayer's involvement. Emily testified that she drove her brother and Taylor to a gas station near the restaurant and picked them up when they called shortly afterwards. Mayer and Taylor then sat in the backseat, counting the money taken during the robbery. Taylor testified that the Mayer siblings had approached him with a plan to rob KC Teriyaki; that he agreed to help; that he and the defendant went to the restaurant armed, respectively, with a "Glock" and a revolver; and that both he and Mayer wore bandannas over their faces. Taylor further testified that after they entered the restaurant, Mayer pointed his gun at an employee and demanded the money; that Mayer told the employee to " ‘[g]ive me the money’ "; that he (Taylor) grabbed the money off a stool; and that after they fled the restaurant, Mayer called his sister, who picked them up and drove them away.

¶ 9 Mayer's girlfriend, Baker, testified that Mayer had called her on the date of the robbery and told her that he had "robbed someplace" and "was running from the cops." Baker further testified that when she met Mayer later that night, he told her that the place he had robbed was a "Chinese or Teriyaki place." He then showed her cash and bragged that he had obtained it from the robbery. Scott, Mayer's friend who provided the anonymous tip that led to Mayer's arrest, also testified that he saw Mayer with a "good wad of cash" shortly after the robbery.

¶ 10 Another friend of Mayer's, Sheldon, testified that Mayer gave him a revolver wrapped In a bandanna (Sheldon called it a "handkerchief") around the time of the robbery. A sample taken from blood found on the bandanna matched a DNA (deoxyribonucleic acid) sample taken from Mayer.

¶ 11 The jury ultimately convicted Mayer on all 10 pending counts. The trial court sentenced Mayer to 306 months of imprisonment. The Court of Appeals unanimously affirmed the conviction and sentence in an unpublished opinion. State v. Mayer, noted at 183 Wash.App. 1016, 2014 WL 4363178. Mayer petitioned for discretionary review on three separate grounds; we granted review on his Miranda challenge only.⁴

STANDARD OF REVIEW

¶ 12 The trial court issued findings of fact and conclusions of law in its order denying Mayer's motion to suppress. We review the trial court's findings of fact for substantial evidence. State v. Garvin, 166 Wash.2d 242, 249, 207 P.3d 1266 (2009). The trial court's legal conclusions regarding the adequacy of the Miranda warnings are issues of law that we review de novo. See State v. Daniels, 160 Wash.2d 256, 261, 156 P.3d 905 (2007) ; State v. Johnson, 94 Wash.App. 882, 897, 974 P.2d 855 (1999). The test for whether a constitutional error is harmless is whether the untainted evidence of the defendant's guilt is so overwhelming that it necessarily leads to the same outcome. In re Pers. Restraint of Cross, 180 Wash.2d 664, 688, 327 P.3d 660 (2014) (citing State v. Guloy, 104 Wash.2d 412, 426, 705 P.2d 1182 (1985) ).

ANALYSIS

I. Miranda violation

¶ 13 The first question presented in this case is whether Dennison's explanation of Mayer's rights satisfies Miranda's requirements.⁵ Under Miranda and its progeny, the State bears the burden of demonstrating that a suspect knowingly and intelligently waived his Miranda rights before it may introduce incriminating statements made during the course of custodial interrogation. Miranda, 384 U.S. at 475, 86 S.Ct. 1602. "Only if the ‘totality of the circumstances surrounding the interrogation’ reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." Moran v. Burbine, 475 U.S. 412,...