State v. Nysta

• Decision Date: 07 May 2012
• Docket Number: No. 65774–7–I.,65774–7–I.
• Citation: 275 P.3d 1162
• Parties: STATE of Washington, Respondent, v. Daven NYSTA, Appellant.
• Court: Washington Court of Appeals

275 P.3d 1162

STATE of Washington, Respondent,
v.
Daven NYSTA, Appellant.

No. 65774–7–I.

Court of Appeals of Washington, Division 1.

May 7, 2012.

[275 P.3d 1165]

Oliver Ross Davis, Wash.App. Project, Seattle, WA, for Appellant.

Dennis John McCurdy, King Co. Pros. Office, Seattle, WA, for Respondent.

BECKER, J.

¶ 1 Invocation of the right to counsel and double jeopardy are the two principal issues raised in this appeal. First, during a custodial interrogation, police asked appellant Daven Nysta if he would take a polygraph. Nysta said, “shit man I gotta talk to my lawyer.” Because this statement was an unequivocal invocation by Nysta of his right to an attorney, the interrogation should have stopped. The trial court erred by denying the motion to suppress the statements that followed. The error was harmless, however, because the statements that followed were no more incriminating than the statements that went before.

¶ 2 Second, Nysta claims his convictions for second degree rape and felony harassment were for the same offense because the same death threat that proved felony harassment might have also proved the forcible compulsion element of the rape. The State erroneously concedes a double jeopardy violation. Because the death threat was not necessary to prove forcible compulsion, the two crimes were not the same in law and fact.

FACTS

¶ 3 The State proved two counts of rape and one count of felony threat through the testimony of S.F., the victim. S.F. testified that Nysta began a relationship with her in February 2009 and moved some of his possessions into her residence. When Nysta drank, he became aggressive and angry. He threatened to beat up S.F. if she ever cheated on him.

¶ 4 On the night of July 31, 2009, Nysta borrowed one of S.F.'s cars. When he returned, the back window of the car was broken. S.F. told Nysta she wanted to break up. Nysta got angry and left.

¶ 5 S.F. heard a knocking at her door early the next morning. When she opened the door, Nysta pushed his way into the house. He appeared intoxicated. S.F. told Nysta their relationship was over and she had gone out with another man.

¶ 6 S.F. testified that Nysta grabbed her, threw her on a bed, and forced his fingers into her vagina and anus. When she tried to move off the bed, he kicked her in the face, began punching and biting her, and repeated the rape with his fingers. “He started asking me questions about who I was with and what we did. Any every time I answered him, he would hit me in the face or arms or anywhere.” S.F. heard her infant daughter crying in the next room. Nysta kept up the violent assault, kicking, punching, and even biting S.F. Eventually he accompanied S.F. into the next room, so she could take care of

[275 P.3d 1166]

the baby. Nysta held the baby, told S.F. to kneel, and urinated on her. Nysta then ordered S.F. to take a shower. When this was done, Nysta took S.F. and the baby back into the other room. While the child sat quietly by the wall, Nysta again asked S.F. who she had been with and again punched her in the face. He attempted intercourse, then made S.F. sit on the floor and perform oral sex. “And he had gotten out a lighter and was going to burn me with it.... And he kept talking to me about how 1 was a bitch, and to keep doing what he asked. And he continually would hit me in the head ... and I had to continue with the oral sex.” ¹

¶ 7 The entire ordeal lasted more than two hours. At one point, Nysta threatened to kill S.F. and her two children and to “bury all three of us where nobody would find us.”

¶ 8 S.F. left with her baby when Nysta passed out. Police arrived in response to a 911 call and arrested Nysta.

¶ 9 Despite a no-contact order, Nysta made hundreds of calls to S.F. from jail. These calls were recorded. Nysta professed his love for S.F. and claimed not to remember what happened. He asked her to drop the charges.

¶ 10 The State charged Nysta with first degree rape for the rape that occurred before the child was brought into the room, because it was during this episode that S.F. sustained the worst of her physical injuries; second degree rape for forcing S.F. into acts of oral sex after the child was brought into the room; and felony harassment for the threat to kill S.F. and her children. Other charges were two counts of misdemeanor violation of a court order and tampering with a witness. The State alleged that the second degree rape was an aggravated offense of domestic violence, deserving an enhanced sentence because it was committed in front of the minor child. See RCW 9.94A.535(3)(h)(ii). A jury convicted Nysta as charged and found by special verdict that the second degree rape was an aggravated domestic violence offense.

¶ 11 The standard range for the first degree rape was 240 to 318 months. For the second degree rape, it was 210 to 280 months. For these two crimes, the court imposed an exceptional sentence by running both sentences consecutively for a total of 450 months. This was based not only on the jury's special verdict but also on aspects of Nysta's criminal history that did not require a jury finding. This appeal followed.

INVOCATION OF THE RIGHT TO COUNSEL

¶ 12 The trial court held a hearing under CrR 3.5 to determine the admissibility of statements made by Nysta during an interrogation at the City of Kent Corrections Facility on August 3, 2009. The principal witness was Detective Robert Jones. Detective Jones, an officer with the Auburn Police Department, was investigating Nysta as a suspect in a first degree burglary that occurred in Auburn earlier on the same night as Nysta's attack on S.F. Also present was Detective Derrick Focht, an officer with the Kent Police Department who was investigating Nysta's crimes against S.F.

¶ 13 The transcript of the interrogation shows that Nysta, having been advised of his Miranda ² rights, agreed to waive them and speak with the detectives about the burglary. Responding to questions from Detective Jones, Nysta denied being in Auburn on the night of July 31. He said he was drinking and gambling all night at a casino until he went home to S.F.'s place in Kent. He admitted that when he got there, he slapped S.F. and then “went blank” until he woke up in handcuffs. Nysta continued to deny being in Auburn even when Detective Jones told him that witnesses had positively identified him at the scene of the burglary.

¶ 14 Detective Jones asked Nysta if he would be willing to take a polygraph examination in connection with the burglary investigation. Nysta at first was willing. “Man we can do it I don't give a damn.” But he began to express reluctance when told the

[275 P.3d 1167]

polygraph was a tool to find out if he was telling the truth.

DETECTIVE JONES: Hm?

THE DEFENDANT: I don't give a damn I just know that I was in the casino.

DETECTIVE JONES: Okay that's what you're sayin' but I don't know that.

THE DEFENDANT: I know.

DETECTIVE JONES: And that's one thi', that's a tool that I can use to see if you're bein' truthful that you were casino or you're at this house beatin' somebody's ass.

THE DEFENDANT: Come on man

DETECTIVE JONES: So.

THE DEFENDANT: I might beat some, the only (sniffs) person I remember slappin' around was my girl that's it and I'm not gonna deny I didn't slap my girl.

....

DETECTIVE JONES: Is the deal, this is where I am is I've got you as positively identified in this incident okay....

....

DETECTIVE JONES: Okay. Simple question, are you willin' to do a poly?

THE DEFENDANT: Do I have to do it though?

DETECTIVE JONES: Absolutely not. It is voluntary. It would be up to you if you wanted to do it or not.

THE DEFENDANT: Man I don't see why I gotta do it though. That thing is a machine man.

DETECTIVE JONES: It's an instrument absolutely. Is it accurate? Absolutely. If you have a polygraph examiner that knows what he's doin'.

....

THE DEFENDANT: It's just a um ah computer mean it's.

DETECTIVE JONES: Well it kinda is but the deal is that it it deals with your (inaudible) nervous system okay it deals with ah um (pause) physiological changes in your body.

THE DEFENDANT: Um hmm.

DETECTIVE JONES: Alright that can tell me if you're bein' truthful or not alright it is very very accurate. And if you decide you wanna take that I will set that up and make sure it happens but again it's voluntary. I don't wanna waste my time if you're saying' no I don't wanna do it.³

¶ 15 It was at this point during the interrogation that Nysta expressed a desire to talk to a lawyer.

THE DEFENDANT: Um hmm (pause) shit man I gotta talk to my lawyer someone.

DETECTIVE JONES: Okay.

THE DEFENDANT: (inaudible) man if it's cool which you then I take it then.

DETECTIVE JONES: Okay.

THE DEFENDANT: If it's not, fuck it.

DETECTIVE JONES: Okay fair enough. This is what I'll do I'll leave my number in your property.

THE DEFENDANT: Um hmm.

DETECTIVE JONES: And if you decide that you wanna take that all you gotta do is call me or have your attorney call me and I'll set it up alright?

THE DEFENDANT: Man that's crazy why people wanna fuckin' put shit on me man. (pause) This is fuckin' bullshit man.

Pretrial Exhibit 1 at 17 (emphasis added).

¶ 16 Detective Jones continued with more questions pertinent to the burglary and a few about what happened when Nysta went back to S.F.'s house. On that topic, Nysta repeated his earlier admission that he slapped S.F. and then “went blank.” ⁴

¶ 17 The trial court concluded that Nysta did not unequivocally invoke his right to an attorney at any point during the questioning. The court found that at the beginning of the interrogation, after Detective Jones asked several clarifying questions, Nysta waived his rights and agreed to be interviewed. The court found that when Nysta later requested to speak with an attorney, it was only for the purpose of deciding whether to take a polygraph examination:

[275 P.3d 1168]

6. About half-way through the interview Det. Jones asked the defendant if he would be willing to submit to a polygraph examination....