State v. Nyutu, 041918 WACA, 34936-5-III

• Opinion Judge: LAWRENCE-BERREY, C.J.
• Party Name: STATE OF WASHINGTON, Respondent, v. MARK NJORGE NYUTU, Appellant.
• Judge Panel: I CONCUR: Korsmo, J. SIDDOWAY, J. (concurring in result)
• Case Date: April 19, 2018
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent,

v.

MARK NJORGE NYUTU, Appellant.

No. 34936-5-III

Court of Appeals of Washington, Division 3

April 19, 2018

UNPUBLISHED OPINION

LAWRENCE-BERREY, C.J.

Mark Njorge Nyutu appeals after his conviction for second degree assault. He argues that the trial court erred by admitting his custodial statements without adequate proof that the arresting officer provided proper Miranda¹warnings. Mr. Nyutu did not raise this argument below. Because the claimed error is not manifest, we decline to review it and affirm Mr. Nyutu's conviction.

FACTS

Faatuiolemoutu Laolagi was working as a bouncer at Stubblefields, a large bar in Pullman, Washington. All bouncers at Stubblefields wear a shirt that says "Stubblefields" on the front and "Staff on the back. Report of Proceedings (RP) at 116. Shortly before closing time at 2:00 a.m., Mr. Laolagi noticed Mr. Nyutu leaning up against the bar with his back, which is against bar policy. Mr. Laolagi approached Mr. Nyutu, moved him away from the bar, and told him he could not lean against the bar. Mr. Nyutu refused, and Mr. Laolagi told him he was a bouncer. Mr. Nyutu became upset and agitated, and began swearing at and threatening Mr. Laolagi. Several security cameras at the bar recorded portions of the incident.

Because Mr. Nyutu was making threats, Mr. Laolagi signaled other employees to come over and informed Mr. Nyutu that he had to leave the bar. DeMaundray Woolridge, another employee, came over to assist Mr. Laolagi. At the same time, Mr. Nyutu signaled one of his friends to come over. After a brief conversation, the employees began moving Mr. Nyutu down some stairs and out of the bar. Mr. Nyutu had a beer bottle in his left hand.

At this point, Mr. Nyutu swung at and punched Mr. Laolagi with his right hand and said, "man, I told you." RP at 164. Mr. Laolagi tackled him in response and the two men both went down. The beer bottle shattered at some point. Mr. Laolagi was on top of Mr. Nyutu, who continued to punch Mr. Laolagi in the head but now with the hand holding the beer bottle. Mr. Laolagi suffered substantial injuries to his head. Law enforcement officers arrived at the scene.

Officer Thomas Cornish conducted a preliminary investigation and determined there was probable cause to arrest Mr. Nyutu. Officer Cornish provided Miranda warnings to Mr. Nyutu, and Mr. Nyutu said he wanted to provide a statement. At the police station, Officer Cornish told Mr. Nyutu that the interview was being recorded. During the interview, Mr. Nyutu acknowledged he knew he had a broken beer bottle in his hand when he punched Mr. Laolagi.

The State charged Mr. Nyutu with second degree assault. The trial court held a CrR 3.5 hearing to determine the admissibility of Mr. Nyutu's statements to police. At the hearing, the State submitted Officer Cornish's affidavit of probable cause. Mr. Nyutu did not object to the State's submission; had he, it likely would have prompted the State to call Officer Cornish as a witness. The State did not call any witnesses. The trial court asked Mr. Nyutu whether he had any evidence to offer, and he said he did not.

The trial court considered Officer Cornish's affidavit and read it into the record. The portion relevant to the appeal reads: "I placed Nyutu under arrest for assault in the second degree. Nyutu was advised of his constitutional rights, and that he was being audio and digitally recorded. Nyutu said he understood. Once at the station, Nyutu said he wanted to tell his side of the story. Nyutu said Laolagi pushed him at the bar. He said Laolagi was not wearing a staff shirt, and he did not know Laolagi was an employee. He said he reacted and punched Laolagi with his right hand. He said they both fell to the ground. He said he punched Laolagi because he felt like he was getting attacked. He said the beer bottle was in his hand, but he was unsure how the bottle got broken. He said it happened so fast he could not recall his exact actions after being pushed."

RP at 8-9 (emphasis added).

The State provided argument why Mr. Nyutu's statements were admissible at trial. The trial court then asked Mr. Nyutu if he had any argument. Mr. Nyutu replied, "No comment, Your Honor. We'll just let the Court rely on the record." RP at 10.

The court then orally ruled: According to this report, defendant was placed under arrest, given his full Miranda warnings .... He did acknowledge that he understood the rights . . . [and] once he arrived at the police...