### FILED DEC 8, 2015 In the OfficeoftheClerkofCourt W A State Court ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 32827-9-111 Respondent, ) ) 

### v. ) ) DAVIDPRESTON WOOD, ) UNPUBLISHED OPINION ) Appellant. ) KORSMO, 1. - DavidWood (DW) appeals from ajuvenilecourt decision adjudicating him guilty on two counts ofsecond degree assault, contendingthathis confessionto a detective was not voluntary. Finding no error, we affirm. FACTS Mr. Wood, 17, and his girlfriend, JL, 16, weretheparents oftwo month old PL. OnJune 2, 2014, PLhadwhat appearedtobe a seizure and was takento Kadlec Hospital. Authorities there eventually alertedpolicethatthe injured child, who suffered from multiple skull fractures, was not an accident victim. Mr. Wood accompaniedhis sontothe hospital and stayedthe night until the next day whenhehad to leaveto work a shift atthe Subway sandwich shop, apositionhe had held for two weeks. Mr. Wood had a ninth grade education. Hereturnedto the hospitalNo. 32827·9-II1 State v. Wood
about 9:00 p.m. A police officerwas waiting to speak about the child's injuries. Mr. Wood first consulted with the child's doctor and learnedthat PL had injured legs and head trauma. The officerknocked on the door and asked ifMr. Wood was willing to go to the police station. He agreed and rode in the front seat ofapatrol car on the short trip to the station. When he first arrived at the police station around 9:30 p.m., he wasplaced in one room, and then around 10:00 moved to an interrogation room. Beforehe was moved to this second room, he could hearJL crying outsidethe door. Once in the second room, Detective Robert Benson eventually met him and asked ifit their interview couldbe recorded; Mr. Wood consented. The interview began at 10:45 p.m.! Ex. 182 at 22:45:12. The contents and conduct ofthe interview are detailed at some length in view ofthe issue presented. Priorto questioning, Detective Benson told Mr. Wood that he was not under arrest, but did read Mr. Wood his Miranda3rights, including thejuvenilerights. Ex. Cat 2-3. Mr. Wood indicated that he understood his rights, and that "ya"he did want totalk. Detective Benson stated that ifWood was too tired, or needed water or to go to the

!The time-stamp appears to be faster than the time stated bythe detective's telephone by about eight minutes. 2Exhibit 18 is the video, while Exhibit C is the transcript ofthe video. 3Miranda v. Arizona, 384 U.S. 436,86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 2No. 32827-9-III State 

### v. Wood bathroom, to let him know and he would be accommodated. At the outset, Mr. Wood admitted to being tired, and the twojokedthat ifone ofthem fell asleep during the interview the other should wake up the sleeper. Duringthe first hour ofquestioning, the detective asked general questions, trying to get a timeline. Wood described whathadhappened the previous night with the seizure
as well as his and JL's usual routine with the baby. During the first part ofthis hour, JL
was being questioned in the adjacentroom. DWlatertestified that he could hear her crying in the next room. The detective could hear only muffled conversations from the nextroom, but about 10-20 minutes into the interview he texted the other officerto move JL to a differentroom away from DW On the recording, the only time crying is audible is around 10:59 pm. Ex. 18 at 22:58:57-22:59:06. Immediately after the crying, 

# I

Detective Benson pulls outhis cell phone and uses it briefly. Id. at 22:59:35. After an hour, the detective asked ifanything was needed. Mr. Wood requested some water and 

# ! t the detective returned with some seven minutes later. The detective then left for 45 minutes. Ex. 18 at 23:52:05-00:37:40. Mr. Wood 

# I
spent some ofthat time with his head down and his arms crossed, possibly asleep. At one point, the lights shut offand another officer came in to explain that he needs to move to tum them back on. Ex. C at 17. When the officer entered the room, DW stood up and gathered his stuffas ifto leave. However, the officertold Mr. Wood that he is "almost

3No. 32827-9-III State v. Wood
done" and asks himto "justhang tight." Id. When asked, "do I stay hereT'the officer responds "Ya." 

### It is 12:27 a.m. at this point. Detective Bensonreturned briefly at 12:37 a.m. He asked Mr. Wood ifheneeds "any more water or anything." Ex. C at 18. DW said he was good and the detective then told him that it'll be about five more minutes. DW says that's fine. Detective Benson returns 19 minutes later. Ex. 18 at 00:56:57. The second round ofquestioning begins at 12:57 a.m. Atfirst it involved more background and questioningregarding the care ofPL, but eventually the detective focused on Mr. Wood. He asked him to demonstrate how he held PL when they were trying to help the child poop. The detective then challenged DW's explanation by telling him what JL said. The detective also showed DW where the doctor said the child's legs
were broken within the last couple ofdays. The detective then described one ofthe baby's skull fractures. He also told DWthatthere were other, older injuries to the skull. The questioning begins to culminate at 1:25 a.m. See Ex. 18 at 01 :25:10. With
some deletions, the questioningpriorto the confession is included below: DET: Ifyou were investigating this case, D[]. SUSP:Mhmm. DET: What are you thinking? SUP: Urn
... DET: Ifyou're sittin' in my shoes, and I've got a baby with five different injuries and potentially four injuries to the brain over a period of time. SUSP:Iwould think that there was abuse. DET: Who's abusing [P.L.]? 4No. 32827-9-III State v. Wood
SUSP:I don't know. That's definitely not [J.L.] and it's not me 'cause I'm not - I - I and I know it's not her dad so I don't
... DET: I mean you're the only three. SUSP:YaIknow. DET: Do you know who King Solomon is? SUSP:Kind of. I know he's [sic] in the bible. DET: Ya considered the wisest man on earth. SUSP:Ya I didn'tknow that. DET: Va. I had to deal with a dilemma like that [sic] once. I mean it's either you, [1.L.]
... SUSP:Or her dad. DET: Orher dad right? SUSP:Ya. DET: I'm thinkin' it's probably not the dad 'cause dad doesn't have a lot ofcontact with the baby right? SUSP:Ya. [


### ...] Det: So Ifyou're in my shoes and I know the baby's being abused and it'sbeing abused by one maybe both ofyou, right? SUSP:Mhmm. DET: Urn would you allow [P.L.] to go back into that environment? SUSP:That's a tough question. [
...] DET: Right. How do you think we're gonna' find out for sure whatcaused those injuries? SUSP:I don't know. Probably either if one of us did [sic], one of us confesses or I don'tknow. DET: Ya I would agree. We know this for a fact that those five injuries are non-accidental. ·SUSP:Mhmm. DET: Do you know what that means? SUSP:Thatthey were done on purpose? DET: Ya there wasn't an accident. Accident meaning you know baby's trying to crawl, trying to get up on something and falls over. That's what I'm talking about an accident ok. Urn do you think the person who caused these injuries to [P.L.] deserves a second chance? SUSP: *Pause* Hm *Pause* that's a hard question. DET: Why is it a hard question?

5No. 32827-9-III State v. Wood
SUSP: 'Cause [
...] depending [
...] on who itis and who was doing it, why they did it [
...] Until he proved himselfthat he was worthy enough to be able to see him again. I would say nobutuntil then no. [

## ...] DET: You think that the person would have to come clean? SUSP:Ya. DET: Tell everything that happened. So what you're telling me is that the person wouldtruly have to be sorry. SUSP:Ya. DET: Right. SUSP:Ya. DET: I mean I don'tthink anybody ever wakes up and
... SUSP:Decides they want to abuse a baby? DET: Right. SUSP:Ya. DET: I mean I don't think that happens unless you're a truly evil sadistic person right? SUSP:Ya. DET: I don't think you're a truly evil sadistic person urn so person would have to be truly sorry and not only promise not to do it again but somehow prove that they weren'tgoing to do that again. SUSP:Mhmm. [

## ...] SUSP:Ihave a question. DET: Va. SUSP: Would you go tojail? DET: What do you mean? SUSP:If.
..ok. *Pause* DET: You got something to tell me D[]? SUSP:Ya I do. DET: This is how I get this outifyou're sorry. Ex. C at 25-27. At this point, itis 1:36 a.m. Mr. Wood then confessed. Ex. C at 27 ("I'mthe one who did it."). The detective had him describe exactly how he did it; the explanation took about twenty-five minutes.
6No. 32827-9-111 State v. Wood
Ex 18 at 01 :37:05-01 :51 :00. Detective Bensonthen left once more, asking again ifDW needed water or anything; DWrequested more water. The detective returned eight minutes later with a piece ofpaper, and asked DWto write-out a statement and an apology letter to his son. Id. at 29-30. Shortlythereafter, he left again and returned with the cup ofwater. Ex. 18 at 02:04:56. DW spent forty minutes working on the statement and letter. Ex. 18 at 02:02:46-02:43:49. At around 2:45 a.m., Detective Benson returns and says they are going to transport himto "juvi'." Id. at 02:48:22. The video ends with DW still sitting in the room at 2:48 a.m. Id. at 02:48:40. The day afterthe interrogation, Mr. Wood met with his caseworker. In her presence, he retracted his confession: "Ihave admitted to all ofthe injuries, even the ones I didn't do to my son." Report ofProceedings at 102. The State chargedMr. Wood in Juvenile Court with two counts ofsecond degree assault. A CrR 3.5 hearing was held concerning the admissibility ofthe confession. The court heard testimony and reviewed a transcript ofthe interrogation and the video itself. Ultimately, the court ruled thatthe confession was voluntary and admissible. The matterproceeded to bench trial. JL testified that she did not harm PL. DW testified that he had twice lashed out againstthe child, but denied the remainder ofthe behaviorrelated in his confession. Mr. Wood was adjudicated guilty on both charges.

7No. 32827-9-111 State v. Wood
The court declared a manifest injustice upwards and committed Mr. Wood until age 21. He promptly appealed to this court. ANALYSIS The sole issue presentedby this appeal concerns whether the confession was voluntary. 

### Mr. Wood contends that it was not and asks thathis confession be suppressed and the convictions reversed and dismissed. Mr. Wood challenges both his waiver ofhis Miranda rights and the overall voluntariness ofthe confession based on his youth, tired 

### t 

# ! i
!

# , t condition, the length ofthe interrogation process, and allegedly coercive questioning. We agree with the trial courtthat the confessionwas voluntary and affirm the convictions. Established precedent guides our consideration ofthese arguments. Miranda requires that priorto conducting a custodial interrogation, police must first advise a suspect (1) ofhis right to remain silent and provide notice that anything said to the police might be used against him, (2) ofthe right to consult with an attorney priorto answering any questions and have the attorney present for questioning, (3) that counsel will be appointed for him ifdesired, and (4) thathe can end questioning at any time. Miranda, 384 U.S. at 444. The United States Supreme Court extended the protections ofMiranda tojuveniles inIn reApplication of Gault, 387 U.S. 1,42-57, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). The court did notrequire any additionaljuvenile-specific language be added

8No. 32827-9-111 State v. Wood

to supplement the rights identified in Miranda, although it noted that "there may well be
some differences in technique." Id. at 55. "Whether ajuvenilehas knowingly and voluntarily waived his Miranda rights is determined by a 'totality-of-the-circumstances' approach." State v. Jones, 95 Wn.2d 616, 625,628 P.2d 472 (1981) (quoting Fare v. Michael

## c., 442 U.S. 707, 725, 99 S. Ct. 2560, 61 L. Ed. 2d 197 (1979». [This approach] permits-indeed, it mandates-inquiry into all the circumstances surrounding the interrogation. This includes evaluation of thejuvenile's age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights. Id. (quotingFare, 442 U.S. at 725). However, where a trial courthas determined that a Miranda waiver was voluntary, appellate courts will not disturb the finding ifthe record reflects substantial evidence by whichthe court could have reached that conclusion. State v. Ng, 110 Wn.2d 32,37, 750 P.2d 632 (1988). In addition to whether a defendantproperly waivedhis or herright to remain silent, a confession can still be involuntary due to the process by which itwas obtained. Massey v. Rhay, 76 Wn.2d 78, 79, 455 P.2d 367 (1969) (confession coerced by police is not admissible). Courts also apply a totality-of-the-circumstances testto determine ifan individual knowingly and voluntarily confessed orinstead confessed as product ofpolice

9No. 32827-9-III State v. Wood
coercIon. State v. Unga, 165 Wn.2d 95, 101, 196 P.3d 645 (2008). The totality-of-thecircumstances test also applies tojuveniles. Id. at 103. Under that test, a confession induced by threats orpromises that overbearthe defendant's will constitutes coercion and must be excluded. Id. at 101-102. In addition to thepreviously noted factors, a court also considers factors relating to the interrogation itself, including its length, location, and continuity. Id. at 101, 103 (including both general factors andjuvenile factors). An appellate court reviews a trial court's finding that the confession was voluntary and not coercive for substantial evidence. State v. Broadaway, 133 Wn.2d 118, 133,942P.2d 363 (1997). There was substantial evidence that the waiver ofMiranda rights at 10:45 p.m.
was knowing and voluntary. Mr. Wood had returned to the hospital after work, spoke with the doctor, and then agreed to speak with officers at the police station. While he cites to evidence showing thathe slept later in the evening, nothing suggests that he was that tired three hours earlier orthat he did not understand whathe was doing when he waived his rights. The trial courtviewed the videotape ofthe interview and could assess 

### Mr. Wood's condition at the time ofthe waiver. Substantial evidence supports the determination that Mr. Wood validly waived his constitutionalrights. For support ofhis coercion claim, Mr. Wood argues thatjuveniles are less mature and less capable ofresisting interrogation, that he was fatigued and isolated during a lengthy interrogation that lasted until 2:40 a.m., that JL also was being interrogated, and 10No. 32827-9-III State v. Wood
thatthe detective threatened not to return PL to a parent's custody without a determination who had harmed the child.4 Like the trial court, we do not agree with all of Mr. Wood's contentions here. Juvenile maturity, the defendant's fatigue, and the fact that he knew JL also was being questioned were considered part ofthe circumstances by the trial court. With the exception offatigue, none ofthose factors suggestedpolice coercion was taking place. The trial court aptly noted that while the interviewtookplace
over a lengthy period oftime, there were long periods oftime when no questioning was taking place while the officers consulted with each other and with the medical doctor. Indeed, there was nothing accusatory about the interview until the second session was underway. This was not an extended interrogation designed to challenge orbreak a defendant's story. Instead, it was a slow build up thatrevealed the relevant information about the incidentthat gave the detective abasis to elicit a confession. We likewise agree with the trialjudgethat the detective did not employ any threats. Pointing outthatthe adult occupants ofthe house where the baby lived were suspects and that the baby was not going to be returned until it could be determined who harmed the child did not constitute a threat. Itwas a simple and logical statementofthe problem facing the police, who then asked Mr. Wood's help resolving it.

4To this end, appellant assigns errorto five findings offact that he contends were not supported by substantial evidence. We address those challenges indirectly in the course ofthe remaining analysis. 11No. 32827-9-III State v. Wood
This case has many factual similarities to Unga. That case dealt with a 16 Y2 year oldjuvenilewith a ninth grade education who was interrogated bypolice for a brief period. 165 Wn.2d at 108-109. While the interrogation was only about 30 minutes, there
was some suggestion ofa promise from the officer not to charge the youth. Id. at 107, 109. Unga was given Miranda warnings, and the court noted that no evidence suggested he did notunderstand the consequences ofwaiving his rights. Id. at 108. The court found that the confession was voluntary and not the product ofcoercion from the promise. Id. at 113. The court specifically noted that there was no evidence to suggest the officer "used a threatening tone, raised his voice, badgered Unga, attempted to intimidate him, or engaged in other similar tactics." Id. at 109. The court also putweight
on the brevity ofthe interrogation, and the fact that there were not multiple rounds of questioning. Id. While this case did not involve abriefinterrogation, it also was less confrontational and there was no suggestion ofany promises such as occurred there. Like Unga, there
was a valid waiver ofMiranda rights. As in Unga, DWhad a ninth grade education, was given his Miranda warnings, appeared to understandhis rights, and agreed to talk anyway. Further, the video showed that Detective Benson neverused athreateningtone, raised his voice, badgered, or attemptedto intimidate DW In fact, the detective told DW thathe was not under arrest and they could stop ifhe gottoo tired. The detective also offeredto get him anything he needed includingwater on more than one occasion. Finally, Detective 12No. 32827-9-II1 State v. Wood
Benson's questions here appearto have led DW to want to confess. "[S]o long as that decision is a product ofthe suspect's own balancing ofcompeting considerations, the confession is voluntary." Unga, 165 Wn.2d at 102 (quotingMiller v. Fenton, 796 F.2d 598, 605 (3d Cir. 1986). Consideringthetotality ofthe circumstances, we agree that substantial evidence supportedthetrial court's determination that the confession was voluntarily given. Most certainly, it was not the product ofcoercion. Accordingly, we conclude that the trial court did not err in admitting the defendant's confession at trial. Thejudgment is affirmed. A majority ofthe panel has determinedthis opinion will notbeprinted in the WashingtonAppellate Reports, butit will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

# ~tU~, C-C+- Siddoway, C.J. 

# -0

Lawrence-Berrey,

13