State v. Rogers

• Decision Date: 19 July 1993
• Docket Number: No. 14348-8-II,14348-8-II
• Citation: 855 P.2d 294,70 Wn.App. 626
• Parties: The STATE of Washington, Respondent, v. William C. ROGERS, Appellant. Division 2
• Court: Washington Court of Appeals

Page 626

70 Wn.App. 626

855 P.2d 294

The STATE of Washington, Respondent, v. William C. ROGERS, Appellant.

No. 14348-8-II.

Court of Appeals of Washington,

Division 2.

July 19, 1993.

John A. Hayes, Longview, for appellant

C.C. Bridgewater, Pros. Atty., and Douglas S. Boole, Deputy Pros. Atty., Kelso, for respondent.

ALEXANDER, Chief Judge.

William C. Rogers appeals his conviction on a charge of vehicular homicide. Rogers assigns error to the trial court's admission into evidence of: (1) testimony regarding his invocation of his right to remain silent; (2) statements he made to a deputy sheriff after his arrest; (3) tests of his blood; and (4) a video tape showing a driver's view, at various speeds, of the road where the accident occurred. Rogers also asserts that the trial court erred in refusing to instruct the jury that reckless driving and negligent driving were lesser included offenses of vehicular homicide, as charged. We affirm.

William C. Rogers was charged in Cowlitz County Superior Court with vehicular homicide and vehicular assault. The charges arose out of an accident that occurred in Longview at approximately 6:25 p.m. on November 14, 1989, when Rogers's truck smashed into a smaller truck driven by Michelle Slatum. Slatum died minutes after the crash. Slatum's passenger sustained only minor injuries. ¹

Cowlitz County Deputy Sheriff Charles Rosenzweig arrived at the scene of the accident shortly after it occurred and found two men holding Rogers by the wrists in an apparent effort to prevent him from departing from the scene. As Rosenzweig took hold of Rogers's wrist, he smelled alcohol on Rogers's breath. Rosenzweig asked Rogers for his name; whether he owned the larger truck; if he had been driving it; if he was hurt; and if he had been drinking. Rogers gave Rosenzweig his name and stated that he was not injured. He also told the deputy that he was the driver and the owner of the larger truck, and that he had been drinking. When Rogers was asked whether he had attempted to leave the scene, he stated, "I got to go get my wife, I have got to go call my wife." Rosenzweig arrested Rogers and placed him in handcuffs. Paramedics Rosenzweig proceeded to the hospital where he advised Rogers of his constitutional rights. He then questioned Rogers. Rogers answered all of Rosenzweig's questions, until Rosenzweig asked him how much he had had to drink that evening. To that question Rogers replied, "I would just as soon leave that."

then arrived and transported Rogers to the emergency room of a Longview hospital.

Before trial Rogers moved, pursuant to CrR 3.5, to suppress the statements he made to Rosenzweig at the scene of the accident and at the hospital. The hearing judge ruled that all of the statements Rogers made to Rosenzweig were admissible.

At trial, the State called Officer Rosenzweig and Officer Michael Giles of the Washington State Patrol. Giles, who was trained in accident investigation, testified that he took measurements at the scene. He said, also, that he participated in filming a video tape from inside a patrol vehicle which was driven at speeds of 30, 40 and 50 miles per hour, over the path that Rogers's truck had travelled before the accident. In each "run", the driver of the patrol car applied the brakes as soon as he saw a patrol car that was parked in the approximate position Slatum's truck had occupied before Slatum pulled it out onto the roadway and was struck. The video taping was done during daylight hours and in good weather. Rogers objected to the admission of the video tape. The trial court admitted it, but gave the jury a limiting instruction relating to this evidence. ² It allowed Giles to narrate to the jury what the video tape purported to show.

Rogers's counsel took exception to the trial court's failure to give his proposed instructions on the lesser included offenses of reckless driving and negligent driving. The jury found Rogers guilty of vehicular homicide. Following sentencing he appealed.

MENTION OF INVOCATION OF RIGHT TO REMAIN SILENT

Rogers argues, for the first time on appeal, that his motion to suppress should have been granted to the extent of precluding Rosenzweig from testifying about Rogers's refusal to disclose how much he had had to drink before the crash. He asserts that the testimony drew inappropriate attention to Rogers's invocation of his right to remain silent.

The State contends that Rogers cannot raise this issue on appeal because it was not raised below. Although Rogers concedes that he failed to raise this issue or make mention of his right to remain silent at the CrR 3.5 hearing or at trial, he avers that the issue is, nonetheless, reviewable. Rogers correctly observes that a party may raise for the first time in an appellate court a manifest error affecting a constitutional right. RAP 2.5(a)(3). Rogers, citing Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), suggests that Rosenzweig's testimony violated his due process rights. In Doyle, the U.S. Supreme Court stated:

Silence in the wake of [Miranda ] warnings may be nothing more than the arrestee's exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial.

(Footnotes and citations omitted.) 426 U.S. at 617-18, 96 S.Ct. at 2244-45; see also State v. Belgarde, 110 Wash.2d 504, 511-12, 755 P.2d 174 (1988); State v. Fricks, 91 Wash.2d 391, 395, 588 P.2d 1328 (1979).

Even assuming that Rogers is correct in his contention that the admission of Rosenzweig's testimony was error, we do not believe that it occurred in such a manner as to rise to constitutional the extent to which it was called to the jury's attention, and the possibility that from that evidence the jury may have drawn an inference unfavorable to the defendant.

                proportion. 3  In State v. Johnson, 42 Wash.App. 425, 712 P.2d 301 (1985), review denied, 105 Wash.2d 1016 (1986), we held that it is only when the prosecutor unfairly uses evidence of post-arrest silence against a defendant that there is a due process violation.   We said that in making a determination as to whether the evidence is prejudicial, courts should examine the context in which the evidence is revealed to determine
                

Johnson, 42 Wash.App. at 431, 712 P.2d 301. Here, there was no real prejudice to Rogers. The record shows that Rosenzweig's testimony regarding Rogers's refusal to say how much he had had to drink was not highlighted. Indeed, it was quickly elicited and then passed over. Furthermore, the answer that Rogers gave, "I would just as soon leave that", did not reflect unfavorably on Rogers. The fact that defense counsel did not object to the question posed to Rosenzweig or ask for a curative instruction suggests that it was of little moment in the trial. Because Rosenzweig's testimony was not unfairly used against Rogers so as to deprive him of is due process right to a fair trial, the error in admitting the evidence was harmless and does not require reversal. We are satisfied, as we must be, that the outcome of the trial would not have been different if the alleged error had not occurred. State v. Jackson, 102 Wash.2d 689, 689 P.2d 76 (1984).

ADMISSION OF STATEMENTS AND BLOOD TEST

Rogers argues that Deputy Rosenzweig lacked probable cause to arrest him at the scene, and that that illegal arrest tainted the blood alcohol test and interrogation which occurred at the hospital. Probable cause for a warrantless arrest Here, Deputy Rosenzweig had probable cause to arrest Rogers at the scene. The extent of the injuries to Slatum's passenger and the damage to the two trucks evidenced a high-speed collision. Furthermore, Rogers told Rosenzweig that he was the owner and driver of the larger truck and he admitted, at the scene, that he had been drinking alcohol prior to the accident. In addition, Rosenzweig noticed a strong, "obvious" smell of alcohol on Rogers's breath and observed that Rogers was being restrained at the scene by two persons, who told Rosenzweig that Rogers had attempted to flee. When questioned about his alleged attempt to leave the scene, Rogers told Rosenzweig that he needed to leave in order to call his wife. Finally, when Rosenzweig took hold of Rogers's wrist to prevent him from fleeing, Rogers resisted the officer's grip.

                exists when facts and circumstances within the arresting officer's knowledge are sufficient to cause a person of reasonable caution to believe that a crime has been committed.  State v. Fricks, 91 Wash.2d 391, 588 P.2d 1328 (1979) (citing State v. Gluck, 83 Wash.2d 424, 426-27, 518 P.2d 703 (1974)).   The officer need not have evidence sufficient to prove every element of the crime beyond a reasonable doubt.  State v. Knighten, 109 Wash.2d 896, 903, 748 P.2d 1118 (1988)
                

We conclude from these facts that, at the very least, Rosenzweig had sufficient cause to believe that Rogers had committed the offenses of driving while under the influence of alcohol and vehicular assault. Because Rosenzweig had probable cause to arrest Rogers, the arrest was not illegal. Accordingly, the trial court did not err in admitting the results of the blood alcohol test and the...