State v. Walker
| Decision Date | 06 September 2016 |
| Docket Number | 73440-7-I |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. ERICK WALKER, Appellant. |
UNPUBLISHED OPINION
Erick Walker challenges his conviction of four counts of first degree assault, five counts of drive by shooting, and first degree manslaughter. He argues that the trial court erred in admitting his custodial statements. Walker also argues that the trial court erred in denying his motion to suppress evidence obtained from the execution of search warrants limiting his cross examination, admitting demonstrative evidence, and allowing the jury to consider the charge of first degree murder. Finding no error, we affirm.
Ten shots were fired in Lake Stevens and Marysville on the night of June 1-June2, 2013. One of the shots struck and killed M.C. as she was walking on the side of the road with several friends. The other shots were fired into homes and parked cars. People were home and lights were on at each of the houses that were shot.
Several witnesses believed the shots were fired from a car. The girls walking nearest M.C. stated that the shot was fired from a passing car. The girls described the car as black or gray. One of the girls saw a flash from the passenger side window.
In Marysville, one witness reported seeing a dark car pass slowly by his house shortly before a shot was fired. Another witness heard gunshots, dropped to the floor, and looked through a screen door. He saw a car backing away from a parked Saturn. The Saturn was rocking and appeared to have just been hit. The other car drove away. From paint transferred in the collision, investigators determined that the car that struck the Saturn was black. Broken car parts collected at the scene appeared to be from the headlight of the striking car.
Police initially recovered five bullets from the shootings, three from Lake Stevens and two from Marysville.[1] They did not recover the bullet that killed M.C. No bullet casings were recovered from any of the sites.
Analysis of the recovered bullets determined that they were all .30 carbine caliber, a relatively uncommon ammunition usually fired by Ruger Blackhawk revolvers, M-1 carbine rifles, or M-1 Enforcer handguns. An analyst concluded that the same gun fired all three of the bullets recovered from the Lake Stevens sites and that the same gun fired both of the bullets recovered from the Marysville sites. But the analyst could not conclusively determine if all of the bullets had been fired by the same gun or if two different guns had been used.
A police officer contacted the local Cabela's Sporting Goods store. He learned that the store had sold twelve of the relevant type of gun in about the past year. Walker was one of the people who had purchased a .30 carbine caliber gun at Cabela's. Police obtained a list of .30 caliber handguns registered with Washington State. Walker was on the State register as the owner of a Blackhawk. The Department of Licensing listed Walker as having an address less than half a mile away from the site of the Marysville shootings. A search of car registries revealed that Walker owned a black car, a 2006 Pontiac G6.
Officers located Walker's Pontiac G6 at a parking lot and observed that one of the headlights had recently been replaced. Behind the new headlight, the car's front panel was damaged and had paint transfer consistent with the accident with the Saturn.
Police obtained a warrant to arrest Walker and a warrant to search his home and car. In a custodial interview, Walker told detectives that on June 1 he went to The Irishmen Pub in Everett after work. He gave different accounts of where else he went that night, but eventually said that after leaving the pub he drove around Lake Stevens, visited a friend, and went to Marysville. Walker stated that he was the only one who had driven his car recently. He told the detectives that he owned firearms and that he was the only one who had fired them.
In executing the search warrant on Walker's home, officers found live .30 carbine caliber ammunition, spent shell casings, and two Ruger Blackhawks. Forensic analysis determined that all of the recovered bullets had been fired from Walker's guns, four from the older model Blackhawk and four from the newer model.
Detectives learned that Walker's father had replaced the headlight on Walker's car. The father had saved the damaged headlight and gave the part to police. The pieces of headlight recovered at the site of the hit and run were from Walker's car. The paint on Walker's car matched the paint transferred onto the Saturn.
Police obtained a surveillance video from a stretch of road near M.C.'s shooting. The video shows a group of girls walk by shortly after 11:00 p.m. At 11:12 p.m., the video shows a dark colored car drive the same stretch of road in the opposite direction. The dark car makes a U-turn and returns in the direction the girls were walking. Forensic video analysis determined that the car on the surveillance video was consistent with a 2006 Pontiac G6 and inconsistent with all other models of cars analyzed.
The State charged Walker with four counts of first degree assault, five counts of drive-by shooting, and first degree murder. He was convicted as charged for the assaults and drive-by shootings. The jury could not reach a verdict on first degree murder but found Walker guilty of first degree manslaughter.
Walker first argues that detectives obtained his custodial statements in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and the trial court erred in denying the motion to suppress those statements.
A person who undergoes custodial questioning has the right not to incriminate himself. State v. Radcliffe, 164 Wn.2d 900, 905, 194 P.3d 250 (2008) (citing Miranda v Arizona, 384 U.S. at 461). The State has the burden of showing, by a preponderance of the evidence, that a suspect understands his rights and has voluntarily waived them. Id. at 905-06 (citing Edwards v. Arizona. 451 U.S. 477, 482, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)). The trial court's unchallenged findings of fact are verities on appeal. State v. Broadaway, 133 Wn. 2d 118, 131, 942 P.2d 363 (1997). We review the trial court's challenged findings of fact for substantial evidence and its conclusions of law de novo. State v Garvin, 166 Wn.2d 242, 207, P.3d 1266 (2009).
The unchallenged findings of fact establish that Walker made no statements prior to his arrival at the sheriffs office. At the Sheriff's Office, Detective Pince read Walker his Miranda rights. After Pince read the Miranda warning, Walker asked "Well, is there an attorney present?" CP at 400-01; see Verbatim Report of Proceedings (11/14/2013) at 36. Pince replied that there was not, that he could get one, and that it would take a little while for an attorney to arrive. CP at 400-01. Walker then asked the detectives what this was about. Id. The detectives replied that they wanted to explain but they needed to know Walker's decision as to whether he wanted to speak to them or not. Id. Walker said he was willing to talk to the detectives and agreed to a recorded interview, Id. Pince turned on the tape recorder and re-advised Walker of his rights, Id. Walker stated that he understood his rights and wanted to talk to the detectives. Id. Walker signed the Miranda waiver. Id. See Ex. 167. The detectives did not make any threats or promises that induced Walker to speak. Id.
The trial court concluded as a matter of law that Walker waived his rights knowingly and voluntarily, that he did not unequivocally request an attorney, and that the detectives did not act improperly in trying to determine whether Walker waived his rights before engaging in conversation. CP at 402-03.
Walker argues that the trial court erred in concluding that he did not unequivocally invoke his right to an attorney. App. Br. at 32. To invoke a Miranda right, a suspect must make an unequivocal request. In re Pers. Restraint of Cross, 180 Wn.2d 664, 682, 327 P.3d 660 (2014) (citing Miranda, 384 U.S. at 473-74). An invocation of Miranda rights is unequivocal if a reasonable officer in the same circumstances would understand it as an assertion of the suspect's rights. Id. (citing Davis v. United States, 512 U.S. 452, 459, 114 S.Ct 2350, 129 L.Ed.2d 362 (1994)). Police are not required to clarify whether the suspect intends to assert the right. Id.
Washington courts have found an unequivocal assertion of the right to counsel where the suspect stated that he needed an attorney or had to speak with his attorney. State v. Nysta 168 Wn.App. 30, 41-42, 275 P.3d 1162 (2012) () (quoting Connecticut v. Barrett, 479 U.S. 523, 529, 107 S.Ct. 828, 93 L.Ed.2d 290 (1987)); State v. Pierce, 169 Wn.App. 533, 544 280 P.3d 1158 (2012) . But merely mentioning an attorney does not invoke the right. Radcliffe, 164 Wn.2d at 907-08 (citing Davis, 512 U.S. at 455) ( that the statement "'maybe [I] should contact an attorney'" was equivocal and did not invoke the suspect's Miranda rights); State v. Gasteazoro-Paniagua, 173 Wn.App. 751, 755, 294 P.3d 857 (2013)( that "I guess I'll just have to talk to a lawyer about it" was an equivocal statement).
Walker made only one reference to an attorney during his custodial interrogation. When advised of his right to counsel, he asked "Well, is there an attorney present?" VRP (11/14/2013) at 36. Walker's question requested information about whether there was an attorney on...
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