IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, Respondent,

v. RAYMOND KURT EDWARDS, Appellant. No. 70965-8-1

UNPUBLISHED OPINION FILED: January 20, 2015 ro CD

C3

en


### Verellen, A.C.J. — A jury convicted Raymond Edwards ofone count ofunlawful 

### possession of a controlled substance and one count of bail jumping. Prior to trial, Edwards moved to suppress statements that he made to police both before and after his arrest. The trial court denied Edwards' CrR 3.5 motion to suppress and admitted statements that he had used meth earlierthat morning and that a bag contained 

### methamphetamine. Edwards challenges the trial court's admission of both his prearrest and postarrest statements at trial. He contends that his statements to police were not 

### voluntary. He also contends that he did notknowingly, voluntarily, and intelligently waive his Miranda1 right to remain silent. We affirm.
FACTS 

### Responding to an alleged assault, Officer Mike Catrain approached Edwards 

### sitting in a parkedvehicle. Edwards appeared "in an altered state," "unsteady," and was

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).No. 70965-8-1/2 

### shaking and rocking back and forth.2 Officer Catrain asked Edwards "what had 

### happened [and] what was going onwith him."3 Edwards responded that "he had used meth earlier that morning."4 Edwards understood and followed Officer Catrain's directives to exit the vehicle and sit on the curb. Additional officers arrived, including 

### OfficerJason Torgeson. OfficerTorgesonhandcuffed Edwards and searched him incidentto arrest, finding a bag ofmethamphetamine onEdwards' person. Officer 

### Torgeson thenread Edwards his Miranda rights. OfficerTorgeson askedEdwards ifhe understood hisMiranda rights and, making eye contactwith OfficerTorgeson, Edwards 

### responded, "Yes."5 When OfficerTorgeson asked Edwards ifhewished to speakwith him, Edwards "mumbled yes."6 Edwards complied with all ofOfficerTorgeson's 

### directives, including to walk, sitdown, stand up, and lean againstthe car.7 Edwards admitted toOfficerTorgeson thatthe bagcontained "meth."8 Edwards 

## again admitted that"hehad [earlier] used methamphetamines."9 Edwards' demeanor

2ReportofProceedings (RP) (Aug. 26, 2013) at 17, 18;jd at17 ("[Edwards] didn't seem focused."); id at 20 ("[Edwards] wasn'tcompletely with it."). 3 Id, at 15. 4ld 5 Id at 28. 

### 6Id at29 ("His response was hemumbled yes. Idon'trecall ifitwas a 'yes' ora 'ah-huh.'"). 

### 7Id at 24("I told him tostand up, turn around, puthis hands behind his back. 

### Hewasable toputhis hands behind his [b]ack. Iasked him tointerlockhis fingers for 

## me. Iplaced handcuffs on him and everydirectivethat Igave him asfar aswalkwith me, sitdown, stand there, lean againstthecar. He complied with every direction thatI gave him."). 8jd at 30. 9 Id. at 31.No. 70965-8-1/3 

### reflected "anxiety," "twitching," and "decreased alertness."10 Edwards responded appropriately to OfficerTorgeson's questions and did not seem to be confused. Officer Torgeson expected thejail would require a fit-for-jail determination prior to booking, so he contacted a medical unit. An aid cartransported Edwards to the hospital. Before trial, Edwards moved to suppress his prearrest statementto Officer 

### Catrain that "he had used meth earlier that morning"11 and his postarrest statements to Officer Torgeson that the bag contained meth and that "he had [earlier] used 

### methamphetamines."12 The trial court denied Edwards' CrR 3.5 motion to suppress and admitted the statements,13 determining inpertinent part that:

• Edwards was not incustody, and therefore Miranda did not apply when he responded to Office Catrain's question;
• Edwards was incustody when OfficerTorgeson questioned him; 

### • OfficerTorgeson advised Edwards of his Miranda rights;
• Edwards understood and verbally acknowledged his Miranda rights;
• Edwards made a voluntary, knowing, and intelligent waiver of his Miranda rights; and
• Edwards statements were made voluntarily and were not the product of threat, coercion, or undue influence or promise.



### 10id at 36; id at 36-37 ("[l]fwe were having a conversation ortalking with him, he wouldkind ofgaze over and look to the other side, and Iwould have to redirecthim and contact him."). 11 id at 15. 12]dat31. 

### 13 The trial court entered written findings of fact and conclusions of law on 

### April 17,2014, over one month after Edwardsfiled his openingbrief. Edwards assigned errorto the trial court's failure to enter written findings offact and conclusions of law 

### under CrR 3.5(c). But he does not contend in his reply briefthat the delay prejudiced him, State v. Landsiedel, 165 Wn. App. 886, 893-94, 269 P.3d 347 (2012), orthatthe 

### late entry ofCrR 3.5findings and conclusions weretailored toaddress the issues raised on appeal. State v. Cannon, 130Wn.2d313, 330, 922 P.2d 1293 (1996).No. 70965-8-1/4 A jury convicted Edwards ofone count of unlawful possession of a controlled 

### substance (methamphetamine) and bailjumping.14 Edwards appeals.
ANALYSIS A trial court's determination that a confession is voluntary will not be "disturbed


### on appeal ifthere is substantial evidence in the record from which the trial court could have found the confession was voluntary."15 "Substantial evidence is 'evidence 

### sufficientto persuade a fair-minded, rational person of the truth of the finding.'"16 "Unchallenged findings of fact are verities on appeal."17 "We reviewconclusions of law 

### pertaining to suppression of evidence de novo."18 Edwards challenges the trial court's admission of his prearrest statement at trial that "he had used meth earlierthat morning."19 He contends that the statementwas 

### involuntary and was the product of police coercion. He also contends that his intoxication rendered the statement involuntary. We disagree. 

### "The Fifth Amendment rightagainst self-incrimination requires police to inform a 

### suspect ofhis or herMiranda rights before a custodial interrogation."20 Buthere, the

14 The State initially charged Edwardswith one count ofunlawful possession of a controlled substance. Butafter Edwards failed to appear at a court hearing, the State amended the information to include a charge for one count of bail jumping. 15 State v. Aten, 130 Wn.2d 640, 664, 927 P.2d 210 (1996). 16 State v. Lew, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006) (quoting State v. Mendez. 137 Wn.2d 208, 214, 970 P.2d 722 (1999)). 17 id 18 id 19RP(Aug. 26, 2013) at 15. 

### 20 State v. Cunningham, 116 Wn. App. 219, 227, 65 P.3d 325 (2003).No. 70965-8-1/5 parties do not contend that Edwards' prearrest statementto Officer Catrain was the 

### product ofcustodial interrogation, requiring Miranda warnings.21 Because Edwards' Miranda rights did not yet attach, we must address Edwards' argumentthat his statement to Officer Catrain was not voluntary for due process purposes. Due process requires that a confession be voluntary and free of police coercion.22 Police conduct cannot overbear the defendant's willto resist and force a 

### confession not freely determined.23 "To be voluntary, a confession must be the product of a rational intellect and a free will."24 "[A] statement is voluntary if it is made



### 21 See, e.g., Sessoms v. Grounds, 768 F.3d 882, 895 (9th Cir. 2014) ("Miranda warnings are required at the outset ofcustodial interrogation."); State v. Mclntvre, 39 Wn. App. 1, 6, 691 P.2d 587 (1984) ("Miranda warnings need be given only when the suspect is subject to custodial interrogation or its functional equivalent."); 12 Royce A. Ferguson, Jr., Washington Practice: Criminal Procedure and Practice § 3310, at 861 (3d ed. 2004) ("General on-the-scene questioning as to facts surrounding a crime or other questioning ofcitizens inthe fact finding process is specifically exempted from the Miranda warning requirement."). Importantly, Edwards does not assign error to the trial court's entry ofconclusion of law 1 that "[t]he defendant was not in custody when he made the admission regarding the use ofmethamphetamine to Officer Michael Catrain. The statementwas not the product ofcustodial interrogation requiring Miranda warning advisement." CP at 60. 

### 22 State v. Reuben, 62 Wn. App. 620, 624, 814 P.2d 1177 (1991); see also Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986) (holding that coercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' withinthe meaning ofthe Due Process Clause ofthe Fourteenth Amendment"). 23 Reuben, 62 Wn. App. at 624; see also State v. Cushing, 68 Wn. App. 388, 392, 842 P.2d 1035 (1993) ("'Whether a confession is free and voluntary
... [is determined by] whether itwas extracted by any sort ofthreats, violence, or direct or 

### impliedpromises, however slight. Aconfession that is the product ofcoercion, physical 

### or psychological, is involuntary and not admissible.'" (quoting State v. Riley, 17 Wn. App. 732, 735, 565 P.2d 105 (1977))). 24 State v. Rupe, 101 Wn.2d 664, 679, 683 P.2d 571 (1984): see also United States v. Kellev, 953 F.2d 562, 565 (9th Cir. 1992) ("A statement may not be admitted if because ofmental illness, drugs, or intoxication, the statementwas not the product of a rational intellect and a free will.").No. 70965-8-1/6 

### spontaneously, is notsolicited, and notthe product ofcustodial interrogation."25 Here, the trial court determined that Edwards' statementwas "voluntarilymade 

### and not the product ofthreat, coercion, or undueinfluence orpromise."26 Officer Catrain approached a parked car occupied by Edwards and asked him "what had 

### happened [and] what was going onwith him."27 Edwards responded that "he had used meth earlier that morning."28 Edwards' statement, while not entirelyresponsive to 

### Officer's Catrain's general question, was clearly spontaneous. OfficerCatraindid not solicitEdwards' statement.29 The record is devoid of any evidence that Officer Catrain 

### applied pressure or other coercive techniques. 

### Moreover, the record does not support Edwards' contention that his intoxication 

### overcame hisfreewill and ability tothink rationally. Welookto "the totality ofthe circumstances" to determine whether a confession is voluntary.30 Factors we may 

### considerinclude "the defendant's physical condition, age, experience, mental abilities,

25 State v. Ortiz, 104 Wn.2d 479, 484, 706 P.2d 1069 (1985); State v. Cloud. 7 

### Wn. App. 211,213, 498 P.2d 907 (1972) ("[l]fquestioning is noncoercive and doesnot contain thepotentiality ofcompulsion inherentin in-custody interrogations butis conducted during a routine investigation without pressurebeing exertedbythe examiner, it is permissible."). 26 CP at 61. 27RP(Aug. 26, 2013) at 15. 28 id 

### 29 Miranda, 384 U.S. at 478 ("Any statementgiven freely and voluntarily without 

### any compelling influences is, ofcourse, admissible in evidence."). Edwards' statement is the kind of"unforeseeable result" that "the police surely [should not] be held accountable for" because Officer Catrain could not have known that his question would 

### elicit an admission from Edwards. Rhode Island v. Innis, 446 U.S. 291, 301-02, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). 30 Ortiz, 104Wn.2dat484.No. 70965-8-1/7 

### and the conduct ofthe police."31 Evidence of intoxication is but one factor in 

### determining voluntariness of a confession.32 Here, while Edwards appeared "in an altered state," "unsteady," and was shaking and rocking back and forth, he followed Officer Catrain's directives and responded 

### appropriately to his questions.33 That a witness told dispatch that Edwards was "acting very irrationally]" does not undermine Officer Catrain's own observations about Edwards' behavior.34 Edwards' speech "wasn't real clear," but Officer Catrain testified 

### that Edwards did not appear intoxicated.35 Although Edwards lacked focus at times during the encounter, the record reflects that Edwards' ability to think rationallywas not 

### impaired by his intoxication. Because substantial evidence in the record supports the trial court's determination that Edwards' prearrest statementto Officer Catrain was 

### voluntary, the trial court properly admitted his prearrest statement attrial. Edwards challenges the trial court's admission of his postarrest statements to 

### OfficerTorgeson that the bag contained "meth" and "he had [earlier] used methamphetamines."36 He contends that his postarrest statements were not voluntary for Mirandapurposes. He also contends that he neither understood his Miranda rights
nor knowingly, voluntarily, and intelligently waived them. We disagree.

31 Cushing, 68 Wn. App. at 392. 32 State v. Cuzzetto, 76 Wn.2d 378, 383, 386, 457 P.2d 204 (1969); State v. Gardner, 28 Wn. App. 721, 723, 626 P.2d 56 (1981). 33RP(Aug. 26, 2013) at 17, 18. 34 id at 13. 35idat18. 36 Id. at30, 31.No. 70965-8-1/8 

### Under both the federal and state constitutions, a defendant possesses rights 

### against self-incrimination.37 Miranda warnings protectthese rights in custodial interrogation situations. Here, it is uncontroverted that Edwards was incustody and subjectto interrogation when Officer Torgeson advised Edwards of his Miranda rights and asked him questions. A defendant's custodial statements to police are voluntary for Miranda purposes if a defendant understood those rights and knowingly, voluntarily, and intelligently 

### waived them.38 "The State bears the burden of showing a knowing, voluntary, and intelligent waiver of Miranda rights."39 "Wewill not disturb a trialcourt's conclusion that

a waiver was voluntarily made ifthe trial courtfound
.. . that the statements were 

### voluntary and substantial evidence in the record supports the finding."40 "The voluntariness of a confession is determined by examining the totality ofthe circumstances in which the confession was made."41 Intoxication does not render a statement involuntary unless the record reflects thatthe defendant was unable to 

### comprehend his words or actions.42 Intoxication is only "a factor in deciding whetherthe

37 U.S. Const, amend. V; Wash. Const, art. I, § 9. 38 Miranda, 384 U.S. 444; see also State v. Hobart, 34 Wn. App. 187, 190, 659 P.2d 557 (1983) ("the test is whether defendant knew that he had the right to remain silent, not whether he understood the precise nature ofthe risks of talking"). 39 State v. Athan, 160 Wn.2d 354, 380, 158 P.3d 27 (2007); State v. Ludvik, 40 Wn. App. 257, 265, 698 P.2d 1064 (1985). 40Athan, 160 Wn.2d at 380. 41 Cushing, 68 Wn. App. at 392. 42 Cuzzetto, 76 Wn.2d at 383, 386.

8No. 70965-8-1/9 

### defendant understood his rights and made a conscious decision" to forgo them.43 Here, the totality ofthe circumstances supports the trial court's determination that Edwards understood his Miranda rights and knowingly, voluntarily, and intelligently waived them. First, immediately after reading Edwards his Miranda rights, Officer Torgeson asked Edwards ifhe understood those rights. Edwards made eye contact and responded, "Yes."44 The record does not support Edwards' contention that he was incapable ofunderstanding his rights. Although Edwards may have shown signs of intoxication, the record supports that he understood the officers' directives and responded appropriately to their questions. No evidence suggests that Edwards did not 

### know "he had the right to remain silent."45 Therefore, substantial evidence supports the trial court's finding that Edwards was sufficiently coherent and could understand his Miranda rights. Second, substantial evidence supports the trial court's determination that 

### Edwards knowingly, voluntarily, and intelligently waived his Miranda rights. Here, after 

### OfficerTorgeson advised Edwards of his Miranda rights, he asked Edwards ifhe wished to speak with him. Edwards responded, "Yes."46 Edwards properlyfollowed Officer Torgeson's instructions and cooperated with him during the encounter. Whilesome evidence suggests that Edwards was affected by some substance, the totality of the

43 Gardner, 28 Wn. App. at 723; see also Reuben, 62 Wn. App. at 625 ("In 

### deciding whether [a defendant] waived his right to remain silent, evidence ofintoxication is a factor to be considered."). 44RP(Aug. 26, 2013) at 28. 45 Hobart, 34 Wn. App. at 190. 46RP(Aug. 26, 2013) at 28.No. 70965-8-1/10 circumstances supports the trial court's determination that Edwards knowingly, voluntarily, and intelligently waived his Miranda rights. Finally, the officers' decision to summon an aid cardoes not render Edwards' 

### postarrest statements involuntary. The officers believed that thejail would require a fitfor-jail determination, and the record reflects that itwas a precautionary decision to
summon an aid car due to the potential increasing effects ofthe methamphetamine on
Edwards. Therefore, we conclude that substantial evidence supports the trial court's determination that Edwards spontaneously and voluntarily made his prearrest statement to Officer Catrain, that Edwards understood his Miranda rights, that he knowingly, 

### voluntarily, and intelligently waived those rights, and that he voluntarily made his postarrest statements to OfficerTorgeson. Accordingly, we affirm the trial court's decision to admit Edwards' prearrest and postarrest statements attrial and affirm his
convictions.

WE CONCUR:

10