### 1LED 

# G'IJ TOFAPPEALS IN THE COURT OF APPEALS OF THE STATE OF WASHINGTMS10,' 

### 2015 

### AUse —4 

### Apq 9: s,
STATE OF WASHINGTON,

V. KIRK W. RHODEN, DIVISION II

Respondent,

Appellant. y No. 45702 -

4 -IT -

31Y PUBLISHED OPINION 

### V4ASHIMG i0,11

BJORGEN, A.C.J. — 

### Ajury returned averdict finding KirkWilliam Rhoden guilty of
unlawful possession of a controlled substance ( methamphetamine). Rhoden appeals his 

### conviction, asserting that the trial court erred by failing to suppress statements he made to police during what he contends was an impropertwo-step interrogation procedure. Rhoden also 

### appeals his sentence, asserting thatthe trial court erred by imposing legal financial obligations without considering whether he had the abilityto paythem. We holdthat thetrial court erred by failing to suppress Rhoden's statements to police andthat such errorwas not harmless. Therefore, we reverse his conviction and remand_ for a new trial. With this result, we do not reach his challenge to the legal financial obligations. FACTS 

### On February 26, 2013, the Pierce County Sheriff's Department, assisted by its Special Weapons and Tactics team, served a search warrant related to an auto theft ring investigation) on a residence in Puyallup. Five occupants ofthe residence, including Rhoden, were restrained with


### 1 The State did not allege that Rhoden was aparticipant in the automobile theft ring orthat he was a subject oftheir investigation.No. 45702 - 4 -II 

### handcuffs. When Deputy Thomas Olesen arrived at the residence laterthat morning, he questioned the handcuffed occupants in the living room ofthe home without advising them of their constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966). 

### Specifically, Olesen asked the occupants ifthere were any drugs or guns in the residence. Rhoden told Olesen that "there would be a small amount of drugs in his bedroom and

at least [ one] gun, if not more." Verbatim Report of Proceedings (VRP) ( Nov. 18, 2013) at 93. Olesen then escorted Rhoden to the kitchen and questioned him a second time after advising Rhoden of his Miranda rights. During the post -

Miranda second interview, Olesen asked Rhoden "[ p] retty much" the 

### same questions that he had asked Rhoden in the living room before giving the Miranda warnings. VRP (Nov. 18, 2013) at 116. In response to Olesen' s post - Miranda questioning, Rhoden stated that there was about a gram of methamphetamine located in the dresser on the left 

### side ofhis bed and that he had been smoking methamphetamine for approximately the lasttwo to three months. 

### During asearch ofabedroom in the home, Deputy Byron Brockway found several items in a dresser, including (1) small baggies containing a substance latertested and confirmed to
contain methamphetamine, (2) an electronic scale, (

### 3) glass smoking devices, and (4) documents 

### containing Rhoden' s name and the address ofthe residence being searched. On February 28, 2013, the State charged Rhoden with one count ofunlawful possession ofa controlled substance. Before trial,the trial court conducted a CrR 3. 5 hearing to determine 

### the admissibility ofRhoden' s statements to police. Following the CrR 3. 5 hearing, the trial court entered the following unchallenged findings offact:

2No. 45702 - 4 -II
1. On February 26, 2013, 

### deputies from the Pierce County Sheriff's Department served asearch warrantat aresidence [in] Puyallup, WA. The warrant was served during the early morning hours at approximately 6 or 6:30 a.m.

2. Upon entry into the residence, deputies found 5- 6 individuals. Deputy 

### T. Olesen initially contacted these individuals in the living room ofthe residence. One of the individuals was identified as the defendant, KIRK W. RHODEN. All 

### ofthe individuals, including defendant,were in handcuffs at the time.

3. 

### During the initial contact, defendant made several statements to Deputy Olesen admitting thatthere was asmall amount ofdrugs in his bedroom along with at least one gun. Defendant was not advised of his constitutional rights prior to making those statements. No threats or promises were made to defendant in order to get him to make these statements.

4. During this initial contact, the other 4 or 5 occupants ofthe residence were also present.

5. 

### Deputy Olesen conducted a more detailed interview ofdefendant in the kitchen of the residence. This interview occurred prior to the time that deputies began their search of the residence. 

### During this second contact, one other deputy 

### may have been present. None ofthe other occupants ofthe residence were present.

6. 

### Deputy Olesen could not recall whether or not defendant was in handcuffs at the time ofthis second interview. Deputy Olesen was dressed in plain clothes but was wearing a vest with " Police" or " Sheriff' clearly visible. Deputy 

### Olsen had afirearm with him atthe time which was on his right hip.

7. 

### Prior to asking defendant any questions during the second contact, Deputy Olesen advised defendant of his constitutional rights using a pre-printed 

### Miranda" card. Deputy Olesen did not utilize awritten advisement ofrights form to advise defendant ofhis constitutional rights. Defendant stated that he understood 

### his rights and did not ask Deputy Olesen to clarify those rights. Defendant had no 

### questions regarding the rights thatwere read to him by the deputy. 8. Defendant did not appearto be underthe influence ofany mind or mood - altering substances.

9. 

### At no time during the interview in the kitchen, did defendant askfor an attorney. 

### 10. At no time during the interview in the kitchen, did defendant indicate a desire to stop answering questions or speaking with Deputy Olesen.

11. No threats or promises were made in order to encourage defendant to 

### answerthe deputy' s questions.

12. 

### After being advised of his constitutional rights, defendant agreed to answer questions by Deputy Olesen regarding drugs and/or guns which defendant indicated were present in his bedroom. Clerk' s Papers at 95- 97. Based on the above findings, the trial court concluded that Rhoden's pre - Miranda statements to police were not admissible at trial and that his post - Miranda statements to police were admissible at trial.

3No. 45702 - 4 -II At trial, Olesen testified about the post - Miranda statements Rhoden had made to him in 

### the kitchen, and Brockwaytestified aboutthe items he found in a dresser in abedroom ofthe Puyallup residence. During closing argument,the State argued that Rhoden's statements to Olesen proved that he had constructive possession ofthe items seized from the bedroom dresser. 

### Thejury returned averdict finding Rhoden guilty ofpossession ofa controlled substance. As part of Rhoden' s sentence, the trial court imposed legal financial obligations, including a 1, 000 court appointed counsel fee. Rhoden appeals. ANALYSIS I. POST-MIRANDA STATEMENTS 

### Rhoden first asserts thatthe trial court erred by failing to suppress his statements to 

### police after receiving the Miranda advisements. Because thetwo-step interrogation procedure used here to obtain Rhoden' s post - Miranda statements failed to apprise Rhoden of information essential to his understanding ofhis right to remain silent underthe Fifth Amendment to the 

### United States Constitution,we hold thatthe trial court erred by failing to suppress the statements.

The Fifth Amendment to the United States Constitution provides criminal suspects with the right to be free from self-incrimination. State v. Warner, 125 Wn.2d 876, 884, 889 P.2d 479 1995); State v. Hickman, 157 Wn.App. 767, 772, 238 P. 3d 1240 (2010). Because ofthe coercive nature of custodial interrogations, law enforcement officers are required to provide a 

### suspect with Miranda warnings priorto questioning the suspect in a custodial setting. Hickman, 

### 157 Wn.App. at 772. Specifically,the requirements ofMiranda applywhere "a suspect endures 1) custodial (2) interrogation (3) by an agent of the State." State v. Heritage, 152 Wn.2d 210, 214, 95 P. 3d 345 ( 2004). Absent,effective Miranda warnings, a suspect' s custodial statements
MNo. 45702 - 4 -II


### are presumed to be involuntarily given and, therefore, cannot be used against the suspect at trial. Miranda, 384 U.S. at 476; Hickman, 157 Wn.App. at 772. The parties agree that Rhoden was subject to custodial interrogations by a law 

### enforcement officer in both the living room and the kitchen to which the requirements of Miranda applied. The parties also agree that Rhoden was provided Miranda warnings prior to 

### making the statements inthe kitchenthatwere admitted as evidence athis trial. At issue inthis appeal is whether those Miranda warnings were effective to apprise Rhoden ofhis Fifth 

### Amendment right to keep silentwhen he hadjust provided the same incriminating information in a custodial interrogation for which he was not given Miranda warnings.

In Missouri v. Seibert, 542 U.S. 600, 604-06, 124 S. Ct. 2601, 159 L. Ed. 2d 643 ( 2004), the United States Supreme Court held in a plurality opinion that Miranda warnings were ineffective to apprise a suspect ofthe right against self-incrimination in circumstances similar to 

### those in this appeal. As here,the warnings in Seibertwere given only afterthe suspect had confessed during a custodial interrogation without Miranda warnings. Seibert, 542 U.S. at 604- 05. As here, the interrogating officers then provided Miranda warnings and again obtained the suspect' s confession, without a significant break in time or place and without measures to assure the suspect that her non-Mirandized statements could not be used against her in a subsequent criminal prosecution. Seibert, 542 U.S. at 605; see also Hickman, 157 Wn.App. 772-75 interpreting the holding in Seibert). Although lower federal and state courts have disagreed as 

### to the rule espoused in the Seibertplurality opinion, in Hickman we held that "the controlling constitutional rule ofSeibert is that which has been articulated in United States v. Williams, 435 F. 3d 1148, 1157- 58 ( 9th Cir. 2006)." 157 Wn.App.at 774.

5No. 45702 - 4 -II In Williams, the Ninth Circuit Court ofAppeals stated that Seibert requires " a trial court 

### to] suppress postwarning confessions obtained during a deliberatetwo-step interrogation where the midstream Miranda warning—in light ofthe objective facts and circumstances—did not effectively apprise the suspect ofhis rights." 435 F.3d at 1157. Under the Williams' s court' s interpretation ofSeibert, which interpretation we adopted in Hickman, a court addressing the 

### admissibility ofstatements obtained during atwo-step interrogation procedure must first determine whether the interrogating officer deliberately used the two-step procedure to
undermine the effectiveness of Miranda warnings. 

### Williams, 435 F.3d at 1158-59. This inquiry into deliberateness, however, does not require courts to evaluate the subjective intent ofthe interrogator. Hickman, 157 Wn.App. at 775. Rather, in determining deliberateness, " courts should consider whether objective evidence and any available subjective evidence, such as an 

### officer's testimony, support an inference that the two-step interrogation procedure was used to
undermine the Miranda warning." Williams, 435 F.3d at 1158. " Such objective evidence would 

### includethe timing, setting and completeness ofthe prewarning interrogation,the continuity of
police personnel and the overlapping content ofthe pre,and postwarning statements." Williams, 435 F. 3d at 1159. 

### Ifacourt determines that the use ofthe two-step interrogation procedure was deliberate, it then must " determine, based on objective evidence, whether the midstream warning adequately 

### and effectively apprised the suspectthat he had a `genuine choice whetherto follow up on [his]
earlier admission."' 

### Williams, 435 F.3d at 1160 (quoting Seibert, 542 U.S. at 616 (Souter, J., plurality opinion)). 

### In making this determination, courts may consider whether any curative measures were taken to insure the suspect' s understanding ofhis or her Miranda rights. Williams, 435 F. 3d at 1160-61. 

### Such curative measures may include a significant break in time
GNo. 45702 - 4 -II 

### and place between the pre- and post - Miranda questioning or an additional warning that the suspect' s pre -

Miranda statements could not be used against the suspect in a subsequent criminal prosecution. Williams, 435 F. 3d at 1160-61. 

### Turning to the first Williams inquiry,the objective evidence presented at Rhoden' s CrR 3. 5 suppression hearing demonstrated a deliberate use ofthetwo-step interrogation procedure. 

### During the initial interrogation in the living room before giving Miranda advisements, Olesen asked the five handcuffed suspects whetherthere were any drugs in the home, and Rhoden 

### admitted that he had a small quantity ofmethamphetamine in his bedroom. After completing his questioning ofthe group in the living room, Olesen escorted Rhoden to the kitchen, read Rhoden his Miranda advisements, and repeated the same questions he had asked in the living room, to 

### which Rhoden answered consistently with his responses given before receiving the Miranda warnings. Thus, the objective evidence of "the timing, setting and completeness ofthe prewarning interrogation,the continuity ofpolice personnel and the overlapping content ofthe 

### pre and postwarning statements" all support the conclusion thatthe two-step interrogation procedure used here was deliberate under Williams, 435 F.3d at 1159 

### The second Williams inquiry examines the effectiveness ofthe midstream Miranda warnings. In this inquiry we examine whether any curative measures were present, such as a significant break in time and place between the pre- and post - Miranda questioning or an 

### additional warning that the suspect' s pre - Miranda statements could not be used againstthe suspect in a subsequent criminal prosecution. Williams, 435 F.3d at 1160-61. The evidence at 

### the CrR 3.5 hearing showedthatthere was not a significant break in time or place between the pre- and post -

Miranda interrogation. Perhaps more importantly, the evidence also showed that 

### Olesen did not take any additional measures to insurethat Rhoden understood his Miranda

VANo. 45702 - 4 -II 

### rights, such as advising him that his pre - Miranda statements could not be used against him. 

### Accordingly, we hold thatthe trial court erred by failing to suppress Rhoden' s post - Miranda
statements.II. THE ERROR IN ADMITTING RHODEN' S STATEMENTS WAS NOT HARMLESS 

### The State argues that any error in admitting Rhoden' s statements attrial was harmless beyond a reasonable doubt. We disagree.

A constitutional error is harmless ifthe appellate court is convinced beyond a reasonable 

### doubt that any reasonablejury would have reached the same result in the absence ofthe error." State v. Guloy, 104 Wn.2d 412, 425, 705 P. 2d 1182 ( 1985). Ifthe untainted evidence at trial was 

### so overwhelming that it necessarily led to a finding ofguilt, reversal is not required, because there is no " reasonable possibilitythatthe use ofinadmissible evidence was necessaryto reach a guilty verdict." 

### Guloy, 104 Wn.2d at 426. The State bears the burden ofproving a constitutional

error harmless beyond a reasonable doubt. Guloy, 104 Wn.2d at 425. The State has not met this burden.The only untainted evidence attrial establishing Rhoden' s constructive possession over the seized methamphetamine was the presence ofdocuments containing his name in the same dresser as the methamphetamine. The State did not present any other evidence establishing that 

### the room in whichthe drugs were found belonged to Rhoden. While this untainted evidence may meet sufficiency requirements to establish Rhoden's constructive possession ofthe seized methamphetamine, it is not so overwhelming as to necessarily lead to afinding ofguilt. We therefore cannot conclude beyond a reasonable doubt that any reasonablejury would have
reached the same guilty

### finding absent evidence.of Rhoden' s challenged admissions.No. 45702 - 4 -II For these reasons, we reverse Rhoden' s conviction and remand for a new trial at which his post -

Miranda statements must be suppressed. Because we reverse Rhoden' s conviction, we need not address his contention with the trial court' s imposition ofthe legal financial.obligations.

BT` iZGEN We concur: 

# bi HANsoN, C.J.

SUTTON, J.

6