State v. McKeown, 2914-III

• Decision Date: 19 June 1979
• Docket Number: No. 2914-III,2914-III
• Citation: 596 P.2d 1100,23 Wn.App. 582
• Parties: STATE of Washington, Respondent, v. Larry Lee McKEOWN, Appellant.
• Court: Washington Court of Appeals

Page 582

23 Wn.App. 582

596 P.2d 1100

STATE of Washington, Respondent, v. Larry Lee McKEOWN, Appellant.

No. 2914-III.

Court of Appeals of Washington, Division 3, Panel Four.

June 19, 1979.

Richard L. Cease, Public Defender, Earl A. Hicks, Asst. Public Defender, Spokane, for appellant.

Donald C. Brockett, Pros. Atty., Terence M. Ryan, Deputy Pros. Atty., Spokane, for respondent.

ROE, Judge.

On August 23, 1977, Spokane Police Officer Jennings, working undercover, met Steve Burr at a local tavern. They discussed the sale of drugs: Jennings purchased 1 pound of marijuana with an agreement to meet Burr the following evening to negotiate a larger purchase. On August 24, Jennings and Burr met at the same tavern; Burr left and, on his return, stated that "he could do a hundred pounds of marijuana that night." During his absence, Burr had contacted Gerald Leighton about the bulk sale. In subsequently scouting out several taverns for one Gordon (a potential seller), Leighton met defendant/appellant McKeown, who said he possibly knew someone "that had some." After apparently making a phone call, McKeown told Leighton, "I believe I have got some for you."

Leighton and McKeown left the tavern in Leighton's car, and McKeown directed them to Richard Schierman's house. After a discussion about the sale in Schierman's living room, the marijuana was obtained. Arrangements were made with Burr to meet at Sambo's Restaurant on North Division in Spokane. Leighton subsequently testified that McKeown, who was riding with him and 6 pounds of the marijuana, stated, "Let's call it off," or words to that effect. However, the parties proceeded to the Taco Bell parking lot to complete the sale. McKeown got out of the car, stood by Schierman's van and watched the transfer of marijuana from that vehicle to the undercover police van. Detectives from the Spokane Police Department arrived and began arresting those at the scene. McKeown started to walk across the parking lot towards the street when Officer Kennedy stopped him and asked whether McKeown knew any of the arrested persons or what was going on; McKeown answered "No." Kennedy then took McKeown back to the scene where he was placed under arrest.

McKeown was charged with delivery of a controlled substance as an accomplice of Leighton, Burr, and Schierman, and convicted by a jury.

At trial, Officer Kennedy testified to McKeown's parking-lot denial. McKeown did not object. Even though no one had requested a CrR 3.5 pretrial hearing, McKeown contends that the trial court erred in allowing the introduction of his denial.

Ordinarily, failure to object to error at trial will preclude appellate review. If the error amounts to an invasion of constitutional rights, then it need not be raised at trial to secure review. State v. Lampshire, 74 Wash.2d 888, 447 P.2d 727 (1968).

CrR 3.5 is a mandatory rule: before introducing evidence of any statement of the defendant, the court Must hold a hearing to determine if the statement was freely given and not the product of coercion. State v. Joseph, 10 Wash.App. 827, 520 P.2d 635 (1974). If the defendant acts knowingly and intentionally, he may waive this right. State v. Myers,86 Wash.2d 419, 545 P.2d 538 (1976). It is doubtful from the record that McKeown made a knowing and intelligent waiver of the hearing, and waiver should not be presumed from his failure to request one. Further, there is no indication that McKeown was ever advised of his right to the hearing. Despite this, remand for a determination of voluntariness is unwarranted.

Although the rule is mandatory,

mere failure to hold a hearing does not make the statement inadmissible. The appellate court may examine the record and make its own determination of voluntariness.

State v. Mustain, 21 Wash.App. 39, 42-43, 584 P.2d 405, 407 (1978); State v. Vandiver, 21 Wash.App. 269, 584 P.2d 978 (1978), and

If a review of the record discloses that there can be no issue concerning voluntariness, rights have not been violated by failure to hold such a hearing.

State v. Vandiver, supra at 272, 584 P.2d at 981, quoting State v. Toliver, 6 Wash.App. 531, 534, 494 P.2d 514 (1972).

McKeown did not testify at trial. He does not maintain that the statement was made involuntarily, or that it was the product of duress, coercion, promises or inducements of any kind. An independent review of the record reveals that it was freely given under the test stated in State v. Riley, 17 Wash.App. 732, 735, 565 P.2d 105, 107 (1977):

To be admissible, a confession must be voluntary; and the test is whether the officer's behavior overcame the defendant's will to resist and brought about an admission that was not freely self-determined. The probable truth or falsity of the confession is not to be considered. Whether a confession is free and voluntary is not determined by whether the officer's conduct is shocking or the confession is cruelly extorted, but whether it was extracted by any sort of threats, violence, or direct or implied promises, however slight.

See also, State v. Lopez, 67 Wash.2d 185, 406 P.2d 941 (1965). Therefore, there is no issue of voluntariness concerning his answer to Kennedy's question.

McKeown claims that the lack of a 3.5 hearing prevented his effective cross-examination to determine if he was in custody and therefore entitled to Miranda ¹ warnings at the time he made the statement. Under these facts, McKeown was not in custody when questioned by Officer Kennedy.

The touchstone of admissibility is whether the defendant's statement was given in the course of custodial interrogation. State v. Berkins, 2 Wash.App. 910, 471 P.2d 131 (1970). Not every interrogation is custodial within the meaning of Miranda. Our courts have recognized the

right to temporarily detain and interrogate before Miranda warnings are given under circumstances where because of the police presence the citizen is in fact temporarily not free to leave pending questioning.

State v. Webster, 20 Wash.App. 128, 135, 579 P.2d 985, 990 (1978); State v. Baker, 68 Wash.2d 517, 413 P.2d 965 (1966).

In State v. Sinclair, 11 Wash.App. 523, 523 P.2d 1209 (1974), the defendant was riding in a truck which contained a stolen T.V. Two officers followed the truck which stopped near defendant's residence. When defendant alit from the vehicle, both officers recognized him, placed him inside the squad car, and questioned him about his age, identity, and the T.V. The police ran a "check," discovered an outstanding warrant for Sinclair's arrest on a traffic charge, and then arrested him both for the traffic charge and for grand larceny. The denial of Sinclair's motion to suppress was affirmed on appeal; this court relied on State v. Gluck, 83 Wash.2d 424, 426, 518 P.2d 703, 705 (1974), for the proposition that

where officers entertain a well-founded suspicion not amounting to probable cause, they may stop the suspected person, identify themselves and require the suspect to identify himself and explain his activity without being adjudged to have made a formal arrest.

and held that

A police officer, in the discharge of his routine law enforcement duties prior to having probable cause to believe that a person he seeks to question has committed a crime for which an arrest may be made, may detain and question that suspect concerning his knowledge of the commission of a crime, including one in process of being committed or about to be committed, without the detention or questioning being considered an arrest and without the necessity of the police officer first giving the person questioned Miranda warnings.

State v. Sinclair, supra, 11 Wash.App. at 528, 523 P.2d at 1213. ²

McKeown assigns error to the trial court's denial of his motion to dismiss for insufficient evidence at the close of the State's case. A challenge to the sufficiency of the evidence requires that the evidence be interpreted most strongly against the moving party and in the light most favorable to the opposing party. State v. Bishop, 90 Wash.2d 185, 580 P.2d 259 (1978); State v. Young, 89 Wash.2d 613, 574 P.2d 1171 (1978). Further, a jury verdict can be overturned on review only when there is no substantial evidence to support it. Lamborn v. Phillips Pacific Chemical Co., 89 Wash.2d 701, 575 P.2d 215 (1978). To determine whether the necessary quantum of proof exists, the appellate court need not be convinced of defendant's guilt beyond a reasonable doubt; it need only be satisfied that there was substantial evidence to support the State's case. State v. Green, 91 Wash.2d 431, 588 P.2d 1370 (1979).

Substantial evidence of accomplice liability must be predicated on more than mere physical presence and knowledge of the crime. State v. Renneberg, 83 Wash.2d 735, 522 P.2d 835 (1974). The accomplice must associate himself with the venture and "participates in it as something he wishes to bring about, and by action to make it succeed," State v. Boast, 87 Wash.2d 447, 456, 553 P.2d 1322, 1327 (1976).

McKeown relies heavily on State v. Gladstone, 78 Wash.2d 306, 474 P.2d 274 (1970), claiming that there was insufficient nexus with Burr, Leighton, or Schierman to support his conviction. Gladstone is factually distinguishable: there, an undercover agent asked defendant where marijuana could be obtained. Gladstone named one Kent and drew a rough sketch of his location. The subsequent sale was made directly between Kent and the officer. There was no evidence that Gladstone had any agreement, arrangement, or association with Kent to aid or persuade him in the sale of the drug. The Supreme Court reversed Gladstone's conviction as an accomplice in the sale, finding his information to the officer no more than "a statement of opinion and possibly no more than campus gossip, rumor or innuendo."

That vital element a nexus between the accused and the party whom he is charged with aiding and abetting in the commission of a crime is missing. The record contains no evidence whatever that...