State v. Unga

• Decision Date: 26 November 2008
• Docket Number: No. 80020-1.,80020-1.
• Parties: STATE of Washington, Respondent, v. Leaa' Esola UNGA, (D.O.B. 2/17/89), Petitioner.
• Court: Washington Supreme Court

196 P.3d 645

165 Wn.2d 95

STATE of Washington, Respondent, v. Leaa' Esola UNGA, (D.O.B. 2/17/89), Petitioner.

No. 80020-1.

Supreme Court of Washington, En Banc.

Argued March 18, 2008.

Decided November 26, 2008.

Dana M. Lind, Nielsen Broman & Koch PLLC, Seattle, WA, for Petitioner.

Yarden F. Weidenfeld, King County Prosecutor, Kent, WA, Prosecuting Atty. King County, King Co. Pros/App Unit Supervisor, Dennis John McCurdy, King County Prosecutor's Office, Seattle, WA, for Respondent.

MADSEN, J.

¶ 1 After he confessed to writing graffiti on the interior of a stolen car, petitioner Leaa' Esola Unga (Unga) was convicted of vehicle prowling and taking a motor vehicle without permission. He argues that his confession was involuntary and should not have been admitted at trial because it was coerced by a detective's promise that he would not be charged with a crime for the graffiti. The Court of Appeals affirmed the conviction. We affirm the Court of Appeals because Unga's confession was not coerced.

FACTS

¶ 2 On February 7, 2005, a teacher at an elementary school in the City of SeaTac reported that her car had been stolen from the school parking lot. When Tukwila police recovered the car two days later, the steering column and ignition had been damaged and someone had written on the dashboard in black marker "F[___] Oficer [sic] Gilette [sic] 4rm C-loc, Bear, Bam Bam, Don't trip." Clerk's Papers (CP) at 2.

¶ 3 On May 26, 2005, King County Sheriff Deputy Timothy Gillette, a SeaTac school resource officer, arrested Unga on an unrelated outstanding warrant. He suspected that Unga or a friend might have written the graffiti on the dashboard of the stolen car based on information he obtained that Unga and his friends were involved in "gang activity that includes graffiti." CP at 2. Gillette asked Sheriff Detective Ryan Mikulcik to speak to Unga about the graffiti in the car and ongoing graffiti threats that had been made against Officer Gillette. Mikulcik had known Unga, who was 16 years old, since Unga was in middle school and had a friendly relationship with him. Mikulcik and Unga met in an interview room. Mikulcik advised Unga of his constitutional rights. After Unga signed a statement that stated he acknowledged these rights and voluntarily waived them, Detective Mikulcik asked Unga about the stolen vehicle. He showed Unga a picture of the graffiti on the dashboard and asked whether he had written it. At first Unga denied having written the graffiti. Mikulcik asked Unga to write Officer Gillette's name to compare handwriting and noted similarities to the writing on the dashboard. Mikulcik asked Unga what "4rm" meant, and Unga responded that "4rm" is the way he writes "from." Verbatim Tr. of Adjudicatory Hr'g (VT) at 41. He asked Unga to write "4rm" and when he did, Mikulcik again noted the writing was similar.

¶ 4 Detective Mikulcik testified that he told Unga that he "wouldn't charge him with about another crime" that had to do with graffiti and then clarified that he probably used the word "vandalism" rather than "malicious mischief." VT at 38-39. He testified it was possible that he told Unga he would not be charged "with the graffiti," but added that he normally did not say that. VT at 39. Detective Mikulcik's intention was to find out who was making death threats against Officer Gillette, and he was hoping that Unga would be able tell him. He did not intend to get Unga to confess to motor vehicle theft. Unga testified that he thought that Mikulcik "meant the whole car, the whole charge of the car" — that he would not be charged with any crime in connection with the car. VT at 56. Unga confessed to writing the graffiti on the dashboard and signed the following written confession:

I was in a Honda Civic that was stolen. I was in the passenger seat and I cannot remember who was driving. I have been in many stolen cars and I know this one was stolen because the ignition was damaged. I used a marker and wrote on the dash board "F[___] Oficer Gilette 4rm c-loc, bear bam bam, don't trip." I have not written anything else about Officer Gillette and have never written anything threatening. This is the only thing I have written about him. I hope it wasn't taken as a threat or the wrong way.

State Ex. 2.

¶ 5 The State charged Unga with one count of taking a motor vehicle without permission in the second degree and one count of vehicle prowl in the second degree. Unga moved to suppress his confession on the ground that he was coerced into confessing by Mikulcik's promise that he would not be charged with a crime. On October 17, 2005, a CrR 3.5 hearing was held. Following the hearing, the juvenile court concluded that "[w]hile Detective Mikulcik's statement that he would not charge the respondent with the graffiti to the dashboard may have been deceptive to some extent, some police deception is permitted by the Washington courts under State v. Burkins, 94 Wash.App. 677 (1999)." CP at 46. The court held the confession was admissible because Mikulcik's conduct was "not so overbearing as to overcome" Unga's "will to resist" and Unga knowingly, intelligently, and voluntarily waived his right to remain silent. Id. The adjudicatory hearing immediately followed, and based on the confession and other evidence presented, the court convicted Unga of second degree vehicle prowl and second degree taking a motor vehicle without permission.

¶ 6 Unga appealed, arguing that the juvenile court erred when it refused to suppress the confession. He also contended that his two convictions violated double jeopardy proscriptions. The Court of Appeals affirmed. State v. L. U., 137 Wash.App. 410, 153 P.3d 894 (2007).

ANALYSIS

¶ 7 Unga maintains that his confession was coerced in violation of his right not to incriminate himself. The Fifth Amendment to the United States Constitution states that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." U.S. CONST. amend. V. Article I, section 9 of the Washington State Constitution states that "[n]o person shall be compelled in any criminal case to give evidence against himself." The protection provided by the state provision is coextensive with that provided by the Fifth Amendment. State v. Earls, 116 Wash.2d 364, 374-75, 805 P.2d 211 confession at trial violates both provisions.

[T]he determination whether statements obtained during custodial interrogation are admissible against the accused is to be made upon an inquiry into the totality of the circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forgo his rights to remain silent and to have the assistance of counsel.

Fare v. Michael C., 442 U.S. 707, 724-25, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979); Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Miranda v. Arizona, 384 U.S. 436, 475-77, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Because the Fifth Amendment protects a person from being compelled to give evidence against himself or herself, the question whether admission of a confession constituted a violation of the Fifth Amendment does not depend solely on whether the confession was voluntary, rather, "coercive police activity is a necessary predicate to the finding that a confession is not `voluntary.'" Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Thus, both the conduct of law enforcement officers in exerting pressure on the defendant to confess and the defendant's ability to resist the pressure are important. United States v. Brave Heart, 397 F.3d 1035, 1040 (8th Cir.2005).

¶ 8 Circumstances that are potentially relevant in the totality-of-the-circumstances analysis include the "crucial element of police coercion;" the length of the interrogation; its location; its continuity; the defendant's maturity, education, physical condition, and mental health; and whether the police advised the defendant of the rights to remain silent and to have counsel present during custodial interrogation. Withrow v. Williams, 507 U.S. 680, 693-94, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993) (and cases cited therein).

¶ 9 The totality-of-the-circumstances test specifically applies to determine whether a confession was coerced by any express or implied promise or by the exertion of any improper influence. State v. Broadaway, 133 Wash.2d 118, 132, 942 P.2d 363 (1997); Arizona v. Fulminante, 499 U.S. 279, 285, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (abrogating test stated in Bram v United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897)). A promise made by law enforcement does not render a confession involuntary per se, but is instead one factor to be considered in deciding whether a confession was voluntary. Fulminante, 499 U.S. at 285, 111 S.Ct. 1246; Broadaway, 133 Wash.2d at 132, 942 P.2d 363; United States v. LeBrun, 363 F.3d 715, 725 (8th Cir.2004); United States v. Dowell, 430 F.3d 1100, 1108 (10th Cir.2005).

¶ 10 Whether any promise has been made must be determined and, if one was made, the court must then apply the totality of the circumstances test and determine whether the defendant's will was overborne by the promise, i.e., there must be a direct causal relationship between the promise and the confession. Broadaway, 133 Wash.2d at 132, 942 P.2d 363; see State v. Rupe, 101 Wash.2d 664, 678-79, 683 P.2d 571 (1984); United States v. Walton, 10 F.3d 1024, 1029 (3d Cir.1993) ("the real issue is not whether a promise was made, but whether there was a causal connection between [the promise] and [the defendant's] statement").

¶ 11 This causal connection is not merely "but for" causation; the court does "not ask whether the confession would have been made in the absence of the interrogation." Miller v. Fenton, 796 F.2d 598, 604 (3d Cir. 1986); see Fulminante, 499 U.S. at 285, 111 S.Ct. 1246. "If the test was whether a statement would have been made but for the law enforcement...