State v. Warner
| Decision Date | 23 February 1995 |
| Docket Number | No. 61787-2,61787-2 |
| Parties | The STATE of Washington, Appellant, v. Timothy WARNER, Respondent. |
| Court | Washington Supreme Court |
Snohomish County Public Defender Ass'n, Lovie L. Bernardi, Everett, for respondent.
The State of Washington appeals the trial court's dismissal of counts 1, 2, 3, and 4 of an information charging Timothy Warner with five counts of rape of a child in the first degree. The dismissal was based on a finding that the use of disclosures made during court ordered treatment of a juvenile offender to prosecute that person after he turns 18 violates due process. The Respondent, Timothy Warner, cross-appeals the trial court's finding that there was no pre-accusatorial delay justifying dismissal of the charges. The case was certified to this court by the Court of Appeals, Division II. For the reasons set forth in the opinion below, we reverse the trial court's order dismissing counts 1, 2, 3, and 4, and remand the case for further proceedings consistent with this opinion.
On March 21, 1990, Timothy Warner, then a 16-year-old juvenile, pleaded guilty in the Juvenile Division of Snohomish County Superior Court to one count of first degree rape of a child. Prior to being sentenced, Mr. Warner was given an evaluation during which he admitted to sexually abusing P.G. (count 5) and an unnamed female. On May 24, 1990, the sentencing judge found that it would be a manifest injustice to sentence within the standard range, and committed Mr. Warner for 130 weeks confinement. The disposition order provided that Mr. Warner "be placed in most intensive sex offender treatment program available, in the Dept. of Juvenile Rehabilitation." Clerk's Papers, at 107. Mr. Warner was placed in the sex offender treatment program at Maple Lane. A mandatory expectation of this particular program is that the offender admit and disclose all of his prior victims.
In October 1990, while participating in the treatment program, Mr. Warner disclosed a number of additional victims, including M.K. (counts 1 and 2) and A.K. (count 4). Mr. Warner claims that he also disclosed his sexual abuse of D.D. (count 3) at this time, but the counselors' notes do not Mr. Warner was apparently told that Child Protective Services (CPS) would be notified about the information he had provided, however, it is not clear whether he was told before or after he made his first disclosures or whether he was told that the information could be used against him in a later prosecution.
show this disclosure until September 11, 1991. The trial court explicitly declined to resolve this factual conflict.
At some point prior to April 16, 1991, Mr. Warner telephoned the mother of A.K. to tell her that he had sexually abused A.K. at a family outing in Plymouth, Benton County. He told A.K.'s mother that as part of his therapy he was to call all of his victims and confess so that they may receive counseling.
On April 16, 1991, King County CPS received a referral about the alleged sexual abuse of A.K. King County CPS subsequently contacted Benton County Police Detective Carlson. He in turn contacted the King County Police who interviewed A.K. on July 9, 1991.
Mr. Warner turned 18-years-old on July 20, 1991. In August 1991, the Benton County Prosecutor's Office received the police report concerning A.K. On August 28, the Benton County Prosecuting Attorney wrote to Maple Lane requesting information on the abuse of A.K., and Maple Lane's Sex Offender Treatment Coordinator Meredith Ingraham responded with a letter dated September 10, 1991.
On September 17, Ms. Ingraham wrote to Sgt. Davis of the Snohomish County Sheriff's Office, describing a number of the other victims disclosed by Mr. Warner, including all of those with whose abuse he was ultimately charged. Both M.K. and D.D. were interviewed by the Snohomish County Sheriff's Office on March 13, 1992, and on July 15, 1992, the cases were received by the Snohomish County Prosecutor's Office. In July 1992, Benton County referred prosecution in the A.K. case to Snohomish County, and the five count information was filed on August 21, 1992.
Mr. Warner moved for dismissal of all five counts on the bases of the State's use of statements made during court- The trial court explicitly refused to dismiss on the basis of prosecutorial delay, but granted the dismissal based on a finding that the use of disclosures made during court ordered treatment of a juvenile offender to prosecute that person after he turns 18 violates due process. The court denied the State's motion for reconsideration on February 17, 1993.
treatment and the precharging delay. The State did not oppose the dismissal of count 5, which the defendant had revealed prior to the original juvenile disposition
Respondent asserts the trial court based its dismissal of the charges on its discretion under CrR 8.3(b). 1 Because a decision to dismiss under CrR 8.3(b) is reversible only upon a showing of a manifest abuse of discretion by the trial court, State v. Dailey, 93 Wash.2d 454, 459, 610 P.2d 357 (1980), Respondent argues dismissal of the charges should be reviewed according to that highly deferential standard.
The record shows that the trial court did not base its dismissal of the charges on CrR 8.3(b). The rule states any exercise of discretion under the rule "shall" be accompanied by a written order setting out the court's reasons. There was a written order of dismissal in this case, but it did not set out any reasons, nor did it mention CrR 8.3(b). 2 Similarly, the trial court's oral opinion did not mention CrR 8.3(b) and did not indicate in any way that the dismissal was based upon this rule.
Thus, we need not apply the abuse of discretion standard that is appropriate under CrR 8.3(b). Instead, we will review the matter de novo under the error of law standard.
The trial court based its decision on an innovative due process ruling--that it is a violation of due process to use statements made pursuant to court-ordered treatment of a juvenile to prosecute that person after turning 18. The court made it clear that the ruling was not based on any type of self-incrimination problem. "I am not suggesting that my ruling would be the same for an adult who made disclosures during treatment and could then be prosecuted." Report of Proceedings (Dec. 31, 1992), at 38. Nor is the ruling based on the delay. "My ruling isn't based upon the prosecutorial delay as such, but on the basis of the due process elements that are present in the prosecutorial delay cases." 3 It is therefore difficult to determine upon what the court based its finding of a due process violation. The court apparently thought both the fact of the delay and that the statements were made during court ordered treatment were important, but did not base its ruling on either of these issues.
The delay aspect of the case seems to be the most important to the trial court. He found it to be "imminently [sic ] unfair" that the State waited until Mr. Warner turned 18 to prosecute him. Report of Proceedings, at 38. The court stressed the punishments to which an adult is subjected are much more severe than those to which a juvenile may be. This is exactly the prejudice with which the delay cases are concerned, yet the trial court refused to apply the test set out in those cases. 4 Established case law provides sufficient guidance for the resolution of the issues in this case. The trial court's circumvention of these precedents is unwarranted and constitutes reversible error.
The Fifth Amendment protection against self-incrimination is made applicable to the states through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Generally, however, a person must invoke the Fifth Amendment protections in order for them to apply. There are two exceptions to this requirement: (1) custodial interrogation by a state agent (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966)), and (2) situations where the assertion of the privilege would be penalized (Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984)). State v. Post, 118 Wash.2d 596, 605, 826 P.2d 172, 837 P.2d 599 (1992).
The Miranda exception applies to cases where there is a custodial interrogation by a state agent. Thus, there are three requirements for this exception to apply: (1) there must be an interrogation, (2) the interrogation must be custodial, and (3) the interrogation must be conducted by a state agent.
"Interrogation" involves some degree of compulsion. Miranda was concerned with protecting the privilege against self-incrimination "during 'incommunicado interrogation of individuals in a police-dominated atmosphere.' " Illinois v. Perkins, 496 U.S. 292, 296, 110 S.Ct. 2394, 2397, 110 L.Ed.2d 243 (1990) (citing Miranda, 384 U.S. at 445, 86 S.Ct. at 1612). Such a coercive atmosphere seems to be lacking here. Arguably, there was some compulsion here in that under the circumstances Warner could have felt cooperation (i.e., making confessions) would lead to more lenient treatment or avoid reprisals. This type of "compulsion" is not contemplated in Miranda, however. In this case, the relevant admissions--those relating to victims M.K. (counts 1 and 2), A.K. (count 4), and D.D. (count 3)--occurred during group therapy sessions conducted by counselors, not during an incommunicado interrogation by police officers.
Assuming arguendo this was an interrogation, it must be "custodial" in order to fit within the Miranda exception. When dealing with a person already incarcerated, "custodial" means more than just the normal restrictions on freedom incident to...To continue reading
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