                                                                            FILED 

                                                                          DEC 8, 2015 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )         No. 32827-9-111
                     Respondent,              )
                                              )
       v.                                     )
                                              )
DAVID PRESTON WOOD,                           )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       KORSMO, 1. - David Wood (DW) appeals from a juvenile court decision

adjudicating him guilty on two counts of second degree assault, contending that his

confession to a detective was not voluntary. Finding no error, we affirm.

                                          FACTS

       Mr. Wood, 17, and his girlfriend, JL, 16, were the parents of two month old PL.

On June 2, 2014, PL had what appeared to be a seizure and was taken to Kadlec Hospital.

Authorities there eventually alerted police that the injured child, who suffered from

multiple skull fractures, was not an accident victim.

       Mr. Wood accompanied his son to the hospital and stayed the night until the next

day when he had to leave to work a shift at the Subway sandwich shop, a position he had

held for two weeks. Mr. Wood had a ninth grade education. He returned to the hospital
No. 32827·9-II1
State v. Wood


about 9:00 p.m. A police officer was waiting to speak about the child's injuries. Mr.

Wood first consulted with the child's doctor and learned that PL had injured legs and

head trauma. The officer knocked on the door and asked if Mr. Wood was willing to go

to the police station. He agreed and rode in the front seat of a patrol car on the short trip

to the station.

       When he first arrived at the police station around 9:30 p.m., he was placed in one

room, and then around 10:00 moved to an interrogation room. Before he was moved to

this second room, he could hear JL crying outside the door. Once in the second room,

Detective Robert Benson eventually met him and asked if it their interview could be

recorded; Mr. Wood consented. The interview began at 10:45 p.m.! Ex. 18 2 at 22:45:12.

The contents and conduct of the interview are detailed at some length in view of the issue

presented.

       Prior to questioning, Detective Benson told Mr. Wood that he was not under

arrest, but did read Mr. Wood his Miranda 3 rights, including the juvenile rights. Ex. Cat

2-3. Mr. Wood indicated that he understood his rights, and that "ya" he did want to talk.

Detective Benson stated that if Wood was too tired, or needed water or to go to the




       ! The time-stamp appears to be faster than the time stated by the detective's
telephone by about eight minutes.
       2 Exhibit 18 is the video, while Exhibit C is the transcript of the video.

       3   Miranda v. Arizona, 384 U.S. 436,86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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No. 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 two joked that if one of them fell asleep during the

interview the other should wake up the sleeper.

       During the first hour of questioning, the detective asked general questions, trying

to get a timeline. Wood described what had happened the previous night with the seizure

as well as his and JL's usual routine with the baby. During the first part of this hour, JL

was being questioned in the adjacent room. DW later testified that he could hear her

crying in the next room. The detective could hear only muffled conversations from the

next room, but about 10-20 minutes into the interview he texted the other officer to move

JL to a different room 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,

Detective Benson pulls out his cell phone and uses it briefly. Id. at 22:59:35. After an
                                                                                              I
hour, the detective asked if anything was needed. Mr. Wood requested some water and           !
the detective returned with some seven minutes later.                                         t
       The detective then left for 45 minutes. Ex. 18 at 23:52:05-00:37:40. Mr. Wood

spent some of that time with his head down and his arms crossed, possibly asleep. At one
                                                                                              I
point, the lights shut off and 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 stuff as if to leave. However, the officer told Mr. Wood that he is "almost




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No. 32827-9-III
State v. Wood


done" and asks him to "just hang tight." Id. When asked, "do I stay hereT' the officer

responds "Ya." It is 12:27 a.m. at this point.

       Detective Benson returned briefly at 12:37 a.m. He asked Mr. Wood ifhe needs

"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 of questioning begins at 12:57 a.m. At first it involved more

background and questioning regarding the care of PL, 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 of days. The detective then described one of the

baby's skull fractures. He also told DW that there 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 questioning prior to the confession is included below:

      DET: If you were investigating this case, D[].
      SUSP:Mhmm.
      DET: What are you thinking?
      SUP: Urn ...
      DET: If you'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: I would think that there was abuse.
      DET: Who's abusing [P.L.]?

                                             4

No. 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:Ya I know.
      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't know 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: Or her dad right?
      SUSP:Ya.
      DET: I'm thinkin' it's probably not the dad 'cause dad doesn't have a lot
              of contact with the baby right?
      SUSP:Ya.
      [ ... ]
      Det: So If you're in my shoes and I know the baby's being abused and
              it's being abused by one maybe both of you, 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 what caused
              those injuries?
      SUSP:I don't know. Probably either if one of us did [sic], one of us
              confesses or I don't know.
      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: That they 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?




                                           5

No. 32827-9-III
State v. Wood


       SUSP: 'Cause [...] depending [...] on who it is and who was doing it, why
               they did it [...] Until he proved himself that he was worthy enough
               to be able to see him again. I would say no but until 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 would truly have to be sorry.
       SUSP:Ya.
       DET: Right.
       SUSP:Ya.
       DET: I mean I don't think 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't going to do that again.
       SUSP:Mhmm.
       [ ... ]
       SUSP: I have a question. 

       DET: Va. 

       SUSP: Would you go to jail? 

       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 out if you're sorry. 


Ex. C at 25-27. At this point, it is 1:36 a.m.

       Mr. Wood then confessed. Ex. C at 27 ("I'm the one who did it."). The detective

had him describe exactly how he did it; the explanation took about twenty-five minutes.


                                                 6

No. 32827-9-111
State v. Wood


Ex 18 at 01 :37:05-01 :51 :00. Detective Benson then left once more, asking again ifDW

needed water or anything; DW requested more water.

       The detective returned eight minutes later with a piece of paper, and asked DW to

write-out a statement and an apology letter to his son. Id. at 29-30. Shortly thereafter, he

left again and returned with the cup of water. 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 him to "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 after the interrogation, Mr. Wood met with his caseworker. In her

presence, he retracted his confession: "I have admitted to all of the injuries, even the ones

I didn't do to my son." Report of Proceedings at 102.

       The State charged Mr. Wood in Juvenile Court with two counts of second degree

assault. A CrR 3.5 hearing was held concerning the admissibility of the confession. The

court heard testimony and reviewed a transcript of the interrogation and the video itself.

Ultimately, the court ruled that the confession was voluntary and admissible.

       The matter proceeded to bench trial. JL testified that she did not harm PL. DW

testified that he had twice lashed out against the child, but denied the remainder of the

behavior related in his confession. Mr. Wood was adjudicated guilty on both charges.




                                             7

No. 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 presented by this appeal concerns whether the confession was              t
voluntary. Mr. Wood contends that it was not and asks that his confession be suppressed
                                                                                                !
and the convictions reversed and dismissed. Mr. Wood challenges both his waiver of his
                                                                                                ,i
                                                                                                !



Miranda rights and the overall voluntariness of the confession based on his youth, tired        t

condition, the length of the interrogation process, and allegedly coercive questioning.

We agree with the trial court that the confession was voluntary and affirm the

convictions.

       Established precedent guides our consideration of these arguments. Miranda

requires that prior to conducting a custodial interrogation, police must first advise a

suspect (1) of his right to remain silent and provide notice that anything said to the police

might be used against him, (2) of the right to consult with an attorney prior to answering

any questions and have the attorney present for questioning, (3) that counsel will be

appointed for him if desired, and (4) that he can end questioning at any time. Miranda,

384 U.S. at 444. The United States Supreme Court extended the protections of Miranda

to juveniles in In re Application ofGault, 387 U.S. 1,42-57, 87 S. Ct. 1428, 18 L. Ed. 2d

527 (1967). The court did not require any additional juvenile-specific language be added




                                              8

No. 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 a juvenile has 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
       the juvenile'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. (quoting Fare, 442 U.S. at 725). However, where a trial court has determined that a

Miranda waiver was voluntary, appellate courts will not disturb the finding if the record

reflects substantial evidence by which the court could have reached that conclusion.

State v. Ng, 110 Wn.2d 32,37, 750 P.2d 632 (1988).

       In addition to whether a defendant properly waived his or her right to remain

silent, a confession can still be involuntary due to the process by which it was 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 test to determine if an

individual knowingly and voluntarily confessed or instead confessed as product of police




                                             9

No. 32827-9-III
State v. Wood


coercIon. State v. Unga, 165 Wn.2d 95, 101, 196 P.3d 645 (2008). The totality-of-the­

circumstances test also applies to juveniles. Id. at 103.

       Under that test, a confession induced by threats or promises that overbear the

defendant's will constitutes coercion and must be excluded. Id. at 101-102. In addition

to the previously 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 and juvenile 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, 133,942 P.2d 363 (1997).

       There was substantial evidence that the waiver of Miranda 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 that he slept later in the evening, nothing suggests that he was

that tired three hours earlier or that he did not understand what he was doing when he

waived his rights. The trial court viewed the videotape of the interview and could assess

Mr. Wood's condition at the time of the waiver. Substantial evidence supports the

determination that Mr. Wood validly waived his constitutional rights.

       For support of his coercion claim, Mr. Wood argues that juveniles are less mature

and less capable of resisting 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

                                             10 

No. 32827-9-III
State v. Wood


that the 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 of the circumstances by

the trial court. With the exception of fatigue, none of those factors suggested police

coercion was taking place. The trial court aptly noted that while the interview took place

over a lengthy period of time, there were long periods of time 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 or break a

defendant's story. Instead, it was a slow build up that revealed the relevant information

about the incident that gave the detective a basis to elicit a confession.

       We likewise agree with the trial judge that the detective did not employ any

threats. Pointing out that the adult occupants of the 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. It was a simple and logical statement of the

problem facing the police, who then asked Mr. Wood's help resolving it.



       4To this end, appellant assigns error to five findings of fact that he contends were
not supported by substantial evidence. We address those challenges indirectly in the
course of the remaining analysis.

                                              11 

No. 32827-9-III
State v. Wood


       This case has many factual similarities to Unga. That case dealt with a 16 Y2 year

old juvenile with a ninth grade education who was interrogated by police for a brief

period. 165 Wn.2d at 108-109. While the interrogation was only about 30 minutes, there

was some suggestion of a 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 not understand the consequences of waiving his rights. Id. at 108. The court

found that the confession was voluntary and not the product of coercion 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 put weight

on the brevity of the interrogation, and the fact that there were not multiple rounds of

questioning. Id.

       While this case did not involve a brief interrogation, it also was less confrontational

and there was no suggestion of any promises such as occurred there. Like Unga, there

was a valid waiver of Miranda rights. As in Unga, DW had a ninth grade education, was

given his Miranda warnings, appeared to understand his rights, and agreed to talk anyway.

Further, the video showed that Detective Benson never used a threatening tone, raised his

voice, badgered, or attempted to intimidate DW In fact, the detective told DW that he was

not under arrest and they could stop if he got too tired. The detective also offered to get

him anything he needed including water on more than one occasion. Finally, Detective

                                             12 

No. 32827-9-II1
State v. Wood


Benson's questions here appear to have led DW to want to confess. "[S]o long as that

decision is a product of the suspect's own balancing of competing considerations, the

confession is voluntary." Unga, 165 Wn.2d at 102 (quoting Miller v. Fenton, 796 F.2d

598, 605 (3d Cir. 1986).

       Considering the totality of the circumstances, we agree that substantial evidence

supported the trial court's determination that the confession was voluntarily given. Most

certainly, it was not the product of coercion. Accordingly, we conclude that the trial

court did not err in admitting the defendant's confession at trial.

       The judgment is affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040. 





WE CONCUR:



    ~tU~,
     Siddoway, C.J.
                    C-C+-
                     -0
       Lawrence-Berrey,




                                              13 

