State v. Metcalf, No. 26898-5-III (Wash. App. 7/2/2009), 26898-5-III.
| Decision Date | 02 July 2009 |
| Docket Number | No. 26974-4-III.,No. 26898-5-III.,26898-5-III.,26974-4-III. |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. JAMES CARL METCALF, Appellant. In re Personal Restraint Petition of: JAMES CARL METCALF |
Appeal from Spokane Superior Court. Docket No: 04-1-00874-4. Judgment or order under review. Date filed: 02/19/2008. Judge signing: Honorable Kathleen M O'connor.
Counsel for Appellant(s), Cece Lana Glenn, Attorney at Law, 1309 W Dean Ave Ste 100, Spokane, WA, 99201-2018.
Counsel for Respondent(s), Brian Clayton O'brien, Spokane Co Pros Atty, 1100 W Mallon Ave, Spokane, WA, 99260-2043.
UNPUBLISHED OPINION
James Metcalf appeals his second degree murder conviction for the 2004 death of Denise McCormick and his exceptional sentence based on jury findings of sexual-motivation and victim-vulnerability aggravating factors. Mr. Metcalf contends the trial court erred in denying his CrR 3.5 motion to suppress his pre-Miranda statements and in making certain evidence rulings. Mr. Metcalf argues insufficient evidence supports the aggravating factors and that the court erred by imposing an exceptional sentence based on victim vulnerability due to intoxication. Pro se, Mr. Metcalf raises additional grounds of ineffective assistance of counsel and alleges improper use of sexual motivation as an aggravating factor. In his consolidated personal restraint petition (PRP), Mr. Metcalf again alleges ineffective assistance of counsel. We affirm. Mr. Metcalf's PRP is denied.
On the evening of February 27, 2004, Mr. Metcalf, his co-worker Anthony Martin, and Mr. Martin's girl friend, Nicolette Kershaw, were drinking at Rick's Ringside Bar.
The party then went to the Season Ticket, where they ran into Ms. McCormick who was a friend and former co-worker of Ms. Kershaw's. The group continued to drink and bar hop with Mr. Metcalf as the driver. While riding in the seat-less back of Mr. Metcalf's van, Ms. McCormick fell over and bumped her head. The group eventually ended up at Mr. Martin's and Ms. Kershaw's house.
While at the Martin/Kershaw residence, Ms. McCormick continued to drink beer. Ms. Kershaw observed she was "getting pretty intoxicated." Report of Proceedings (RP) at 378. Mr. Martin was not paying close attention to how much Ms. McCormick was drinking but he was "sure" she was intoxicated, although she was still "walking and talking." RP at 423. Mr. Martin observed Mr. Metcalf was also intoxicated.
Antonio Volpe, a friend the party met at one of the bars, also returned to the Martin/Kershaw residence. He described Ms. McCormick as intoxicated and holding hands with Mr. Metcalf when she decided to go home. Mr. Metcalf offered her a ride.
Instead of going home, Ms. McCormick went back to Mr. Metcalf's house where he claimed they watched pornography and then began to have sex. During sex, Mr. Metcalf testified Ms. McCormick took his hands and placed them around her neck and began to squeeze. After sex, he saw Ms. McCormick was not moving and then discovered she was dead. Mr. Metcalf testified he then panicked and drove to the Long Lake area where he rolled her body down a hill toward the lake.
A few hours later, a man looking for a fishing location discovered Ms. McCormick's body. On March 1, 2004, Detective David Baskin and Detective Benjamin Paramore of the Stevens County Sheriff's Department contacted Mr. Metcalf at his home. Mr. Metcalf let the detectives in and agreed to speak to them. Another officer stood inside the residence near the door, talking to Mr. Metcalf's son. Several other officers remained outside. Detective Baskin and Detective Paramore did not provide Miranda1 warnings to Mr. Metcalf.
The detectives opined that if Mr. Metcalf had asked them to leave they would have. He was not under arrest. The detectives stated that Mr. Metcalf was free to not answer their questions. Mr. Metcalf then related his version of the events. Concerned over inconsistencies, the detectives then took him to the police station to answer more questions. At the police station, Mr. Metcalf was read his Miranda warnings. Mr. Metcalf agreed to waive his rights and again related his version of events.
Officers outside Mr. Metcalf's home observed a diamond-patterned floor mat in the back of his van. A diamond-shaped pattern was discovered on the back of Ms. McCormick's legs. Additionally, Ms. McCormick's blood was found in the back of the van. A vaginal swab of Ms. McCormick revealed a DNA (deoxyribonucleic acid) match with Mr. Metcalf.
The State charged Mr. Metcalf with second degree murder with sexual motivation. The State further alleged the aggravating factors of victim vulnerability and sexual motivation. The trial court denied Mr. Metcalf's CrR 3.5 motion to suppress his statements made to the detectives at his home, concluding he was not in custody so Miranda warnings were not required.
During trial, Dr. Marco Ross testified regarding Ms. McCormick's autopsy. He concluded her cause of death was asphyxia due to strangulation, with contributing blunt force head injuries. Her blood alcohol level was .24. Ms. McCormick had injuries to the back, top, and side of her head caused before or at the time of death, which Dr. Ross opined was consistent with a physical assault rather than an accident. Dr. Ross also opined that based on injury to the neck and the amount of hemorrhage present in the neck, a person applying pressure to the neck would know that the victim was being harmed (i.e., strangulated). After viewing a picture of a steel bar found in Mr. Metcalf's van, Dr. Ross testified it could have been used to cause Ms. McCormick's injuries.
The steel bar (Ex. 121) and a picture of the bar (Ex. 116) were admitted over defense objection. The bar was left in Mr. Metcalf's van until right before trial, which took place over three and one-half years after his arrest and the van's impoundment. The State had provided a photograph of the bar to defense counsel at the beginning of the case. The bar was not forensically tested.
Defense witness Jay Wiseman, an educator on alternative sexuality issues, testified regarding auto-erotic asphyxiation — sexual gratification that may occur through the act of choking. Mr. Metcalf claimed this was the activity Ms. McCormick was engaged in when she allegedly brought his hands to her neck, and he denied hitting her with the pipe. On cross-examination, Mr. Wiseman conceded that this type of activity would not involve someone being hit on the head repeatedly or cause severe injuries. Another defense witness, Dr. Mark Mays opined that the more alcohol consumed the less likely an individual is able to defend herself or himself.
The jury found Mr. Metcalf guilty as charged, and found aggravating factors of sexual motivation and victim vulnerability. Mr. Metcalf's standard range sentence was 123-220 months, but the court enhanced Mr. Metcalf's sentence to a minimum of 360 months and a maximum of life due to the aggravating factors. He appealed.
The issue is whether the trial court erred in denying Mr. Metcalf's CrR 3.5 motion to suppress his statements made to detectives at his residence. Mr. Metcalf contends the statements were made during a custodial interrogation, requiring Miranda warnings.
Under the federal and state constitutions, a defendant possesses rights against self-incrimination. U.S. Const. amend. V; Const. art. I, § 9. Miranda warnings protect these rights in custodial interrogation situations. State v. Lorenz, 152 Wn.2d 22, 36, 93 P.3d 133 (2004). But outside the context of custodial interrogation, Miranda does not apply. Roberts v. United States, 445 U.S. 552, 560, 100 S. Ct. 1358, 63 L. Ed. 2d 622 (1980).
Our courts determine if an interrogation is custodial using an objective standard, "whether a reasonable person in the individual's position would believe he or she was in police custody to a degree associated with formal arrest." Lorenz, 152 Wn.2d at 36-37 (citing Berkemer v. McCarty, 468 U.S. 420, 440, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984)). We examine a trial court's findings from a CrR 3.5 hearing for substantial evidence, but we review the trial court's determination of custody de novo. Lorenz, 152 Wn.2d at 36 (citing State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997)).
In State v. N.M.K., 129 Wn. App. 155, 160-61, 118 P.3d 368 (2005), officers questioning a juvenile did not handcuff the juvenile and never told the juvenile he was not free to leave. The court held Miranda warnings were not required. Division One of this court in State v. S.J.W., ___ Wn. App. ___, 206 P.3d 355, 364 (2009), recently noted the significance of the interview taking place "in a private residence familiar [to the defendant]."
Here, the court found Mr. Metcalf let Detective Baskin and Detective Paramore into his home and that if Mr. Metcalf had asked to leave, he would have been allowed to do so. These findings are unchallenged and, therefore, verities on appeal. Broadaway, 133 Wn.2d at 131. Further, Mr. Metcalf was not handcuffed nor was he told he could not leave. Given these facts, Mr. Metcalf's statements were made outside the context of custodial interrogation; therefore, the court did not err in deciding Miranda did not apply. Moreover, any error would be harmless. Mr. Metcalf has maintained the same defense; the death was an accident occurring during consensual sex play. While some inconsistencies in his statements exist between his pre-Miranda statement and his post-Miranda statement, the crux of his story has not changed.
The next issue is whether the trial court erred by abusing its discretion in admitting the steel bar found in Mr. Metcalf's van and a photograph of the bar. Mr. Metcalf contends this evidence should have been excluded because its probative value is outweighed by unfair prejudice and because Mr. Metcalf was...
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