State v. Valentine

• Decision Date: 11 March 2013
• Docket Number: 67778-1-I
• Parties: STATE OF WASHINGTON, Respondent. v. DERRICK A. VALENTINE, Appellant.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent. v. DERRICK A. VALENTINE, Appellant.

No. 67778-1-I

Court of Appeals of Washington

March 11, 2013

UNPUBLISHED OPINION

Appelwick, J.

Valentine was convicted of second degree assault, fourth degree assault, and felony harassment.We accept the State's concession that Valentine's conviction for fourth degree assault violated the double jeopardy clause.Any error in admitting statements that were the product of custodial interrogation was harmless and the trial court properly calculated his offender score.We remand for the trial court to vacate his fourth degree assault conviction and otherwise affirm.

FACTS

On May 15, 2011, Derrick Valentine and Mary Cason got into a loud argument in their shared apartment.Cason dialed 911 on her cellular phone.Although she did not speak to the operator she held the phone so that the operator could hear Valentine yelling.Valentine was aware that Cason called 911 and yelled directly at the operator.Valentine then left the apartment and walked to a nearby store.

While Valentine was gone, police officers responded to the 911 call.Cason let the officers into the hallway and told them that the previous night Valentine hit her on the head and pushed her, leaving marks on her face and arm.While they were talking, Valentine walked into the building.Officer Derek Anderson spoke with Valentine and arrested him.

After Valentine waived his right to silence, he stated that he and Cason had pushed each other on May 14 and acknowledged that he pushed a cookie jar off a table and broke it.He said that he and Cason had a violent relationship and that the abuse was mutual.Valentine also expressed his belief that denial was futile, because in Washington, "they believe what a woman says anyway."

Based on Valentine's acts on May 14, the State charged Valentine with assault in the second degree, assault in the fourth degree, and felony harassment.It added aggravating factors to the assault in the second degree and felony harassment charges, alleging that they were domestic violence offenses and that the crimes were part of an ongoing pattern of psychological, physical or sexual abuse manifested by multiple incidents over a prolonged period of time.

According to Cason, Valentine was angry with her on May 14, because she went to brunch with her daughter instead of helping Valentine with his resume.Valentine was not home when Cason came home from brunch.But, soon after she got back to the apartment Valentine called her three times and swore at her for not helping him.Based on past experiences Cason expected that Valentine would hit her when he returned.She put some clothes in her car so she could quickly leave if necessary.Then, she went back inside and waited for Valentine to arrive.She was sitting down crocheting when Valentine came home.He was immediately angry at Cason for not helping him.He shouted and cursed, and Cason could tell he had been drinking.Valentine stood over Cason, swore at her, and used both hands to hit her on both sides of her head.The strike caused Cason's glasses to cut into her eye.Cason got up to leave, but Valentine stood between her and the door.He pushed a glass cookie jar onto the floor and it broke.Then Valentine grabbed Cason by the throat to prevent her from leaving.He held her hard enough so that Cason could not breathe.Her throat was sore for several days after.Valentine told her that if she called the police, he would kill her.He released her and she fell on the broken cookie jar.Cason got up and ran to her car.Pictures admitted at trial were described as showing the mark on Cason's face from where Valentine hit her and an injury to her arm sustained when she fell on the broken cookie jar.

Cason also testified to a pattern of assault and threats during her 17 month romantic relationship with Valentine.He first started hitting her a few months into their relationship, and the violence got worse when they moved in together in August 2010.When prompted to estimate how many times Valentine had assaulted her, she said there were too many times to count.But, she described several events that stuck with her.

When Valentine could not find his driver's license, he told Cason he was going to cut her throat with a box cutter.He eventually found the license and apologized.But, he showed Cason the box cutter to establish that the threat was real.When Cason did not want to make a grocery list, Valentine slapped her and left her with a black eye.When Cason purchased cookies for Valentine, he beat her because they were too expensive.Another time, Valentine thought a man in a car was there to meet Cason.He told Cason he was going to bash her head in and throw her into a pond.On several occasions, Valentine choked Cason, and at least twice he choked her hard enough so that she lost her breath.

Cason testified that Valentine did not make idle threats.One time he told Cason that he was going to beat her up in two days, and two days later he beat her up.On another occasion, he told her he was going to beat her up in three days, and again he followed through three days later.

Valentine also told Cason that he tried to kill his ex-wife, because she cheated on him.He revealed that he choked her until she turned blue, but stopped because they had children together and he did not want them to grow up without any parents.

The jury found Valentine guilty on all three counts and answered "yes" on special verdict forms for each of the aggravating factors.

DISCUSSION

Valentine argues that he was convicted twice for the same offense, that Cason testified about statements he made during a custodial interrogation before he was arrested, and that his offender score was miscalculated, because it did not treat his assault and harassment charges as the same criminal conduct.In a statement of additional grounds, Valentine argues that the trial court erred by admitting evidence of previous incidents of domestic violence against Cason and by not bifurcating the aggravator of pattern of domestic violence from the trial.

I.Double Jeopardy

Valentine argues that his conviction for both second degree assault and fourth degree assault violates the double jeopardy clause.He claims that fourth degree assault is a lesser included offense of second degree assault and that the offenses in this case occurred during a single, uninterrupted episode.The State concedes error.We accept the State's concession and remand for the trial court to vacate the fourth degree assault conviction and strike the reference to the fourth degree assault charge from the felony judgment and sentence.

II.Custodial Statements

Prior to trial, Valentine made a CrR 3.5 motion to suppress statements he made before he was arrested and advised of his Miranda rights.Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).Miranda warnings protect a suspect's constitutional right not to make incriminating statements while in the coercive environment of police custody.State v. Heritage.152 Wn.2d 210, 214, 95 P.3d 345(2004).They must be given whenever a suspect is subjected to a custodial interrogation by a State agent.Id.A custodial interrogation occurs when a reasonable person in a suspect's position would have felt that his or her freedom was curtailed to the degree associated with a formal arrest.Id at 218.

The trial court held a hearing and entered written findings of fact and conclusions of law.It found that while Officer Anderson spoke with Cason, Valentine walked through a door at the opposite end of the hallway.Officer Anderson approached Valentine and asked what happened.Valentine said that he had not put his hands on Cason that day, but that they had been in a fight the day before.Valentine indicated, "[Y]ou might as well arrest me then."Officer Anderson arrested Valentine and read him his rights.The trial court ruled that only statements made after Valentine was arrested were admissible.It also incorporated its oral findings and conclusions.At the hearing, the trial court explained:

[I]t's clear to me that at the time that the defendant happened upon the arresting officer and the alleged victim that he was a suspect, the only suspect in a crime, that the officer had probable cause to arrest him.And that he was, while there was some different perspective expressed by the officer, it's clear to the court that he was not free to leave at that time.Therefore, I'm going to hold that the statements that the defense is objecting to, words to the effect, why don't you just arrest me, is not admissible under Rule 3.5.But, the statements that were given to both the officer, the arresting officer and the detective after each of them separately Mirandized him were knowing, intelligent and voluntary.

After defense counsel requested further clarification, the trial court said, "All the statements that were given to Officer Anderson pre-Miranda are not admissible under [CrR] 3.5."

Nevertheless, at trial Cason described what happened when Valentine was arrested:

As soon as he came through the door he said, oh, you come to arrest me.He put his hands on the wall, turned to put his hands on the back.

She confirmed that he made a gesture of, "arrest me."Defense counsel did not object to Cason's testimony.The State did not question any other witnesses about Valentine's prearrest statements and did not mention Cason's statements in its closing argument.

Valentine argues that Cason's testimony violated his right not to incriminate himself, because it revealed statements he made during a custodial interrogation.Proceeding on the assumption that there was an error of constitutional magnitude, we first consider whether Valentine...