                                                                                                   1LED
                                                                            WASHINGTMS10,'
                                                                                             G'IJ T OF APPEALS
    IN THE COURT OF APPEALS OF THE STATE OF
                                                                                      2015 AUse — 4 Apq 9: s,
                                            DIVISION II
                                                                                       y
                                                                                                   V4ASHIMG i 0,11
 STATE OF WASHINGTON,                                                  No. 45702 -4 -IT31Y
                                                                                        -


                                    Respondent,                   PUBLISHED OPINION


        V.




 KIRK W. RHODEN,


                                    Appellant.



       BJORGEN, A.C. J. —        A jury returned a verdict finding Kirk William 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 improper two- step interrogation procedure. Rhoden also

appeals his sentence, asserting that the trial court erred by imposing legal financial obligations

without considering whether he had the ability to pay them. We hold that the trial court erred by

failing to suppress Rhoden' s statements to police and that such error was 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 of the residence, including Rhoden, were restrained with



1 The State did not allege that Rhoden was a participant in the automobile theft ring or that he
was a subject of   their   investigation.
No. 45702 -4 -II



handcuffs. When Deputy Thomas Olesen arrived at the residence later that morning, he

questioned the handcuffed occupants in the living room of the 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 if there 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 of his bed and that he had been smoking methamphetamine for approximately the last two to

three months.



           During a search of a bedroom in the home, Deputy Byron Brockway found several items

in a dresser, including ( 1) small baggies containing a substance later tested and confirmed to

contain methamphetamine, ( 2) an electronic scale, (             3) glass smoking devices, and ( 4) documents

containing Rhoden' s name and the address of the residence being searched.

           On February 28, 2013, the State charged Rhoden with one count of unlawful possession

of a controlled substance. Before trial, the trial court conducted a CrR 3. 5 hearing to determine

the admissibility of Rhoden' s statements to police. Following the CrR 3. 5 hearing, the trial court

entered the following unchallenged findings of fact:




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                    1.     On    February    26, 2013,
                                            deputies from the Pierce County Sheriff' s
       Department served a search warrant at a residence [ 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 of the residence.
       One    of    the individuals     was    identified   as   the   defendant, KIRK W. RHODEN. All
       of the individuals, including defendant, were in handcuffs at the time.
               3. During the initial contact, defendant made several statements to Deputy
       Olesen admitting that there was a small amount of drugs 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 of the residence
       were also present.

                    5.    Deputy Olesen conducted a more detailed interview of defendant in the
       kitchen       of   the   residence.    This interview occurred prior to the time that deputies
       began their         search of   the    During this second contact, one other deputy
                                             residence.

       may have been present. None of the other occupants of the residence were present.
               6.  Deputy Olesen could not recall whether or not defendant was in
       handcuffs at the time of this second interview. Deputy Olesen was dressed in plain
       clothes but was wearing a vest with " Police" or " Sheriff' clearly visible. Deputy

       Olsen had a firearm with him at the 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 a written advisement of rights form
       to advise defendant of his 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 that were read to him by the deputy.
               8. Defendant did not appear to be under the influence of any mind or mood -
       altering substances.
               9. At no time           during the interview in the kitchen, did defendant ask for 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
        answer the 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.




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          At trial, Olesen testified about the post -Miranda statements Rhoden had made to him in


the kitchen, and Brockway testified about the items he found in a dresser in a bedroom of the

Puyallup residence. During closing argument, the State argued that Rhoden' s statements to

Olesen proved that he had constructive possession of the items seized from the bedroom dresser.


          The jury returned a verdict finding Rhoden guilty of possession of a 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 that the trial court erred by failing to suppress his statements to

police after receiving the Miranda advisements. Because the two- step interrogation procedure

used here to obtain Rhoden' s post -Miranda statements failed to apprise Rhoden of information


essential to his understanding of his right to remain silent under the Fifth Amendment to the

United States Constitution, we hold that the 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 of the


coercive nature of custodial interrogations, law enforcement officers are required to provide a


suspect with Miranda warnings prior to questioning the suspect in a custodial setting. Hickman,

157 Wn. App. at 772. Specifically, the requirements of Miranda apply where " 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




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No. 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 in the kitchen that were admitted as evidence at his trial. At issue in this

appeal is whether those Miranda warnings were effective to apprise Rhoden of his Fifth


Amendment right to keep silent when he had just 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 of the right against self-incrimination in circumstances similar to


those in this appeal. As here, the warnings in Seibert were given only after the 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 Seibert plurality opinion, in Hickman we held that " the controlling

constitutional rule of Seibert 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.




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         In Williams, the Ninth Circuit Court of Appeals stated that Seibert requires " a trial court


to] suppress postwarning confessions obtained during a deliberate two- step interrogation where

the   midstream   Miranda warning— in light               of   the   objective      facts   and circumstances—     did not


effectively   apprise    the   suspect of   his   rights."     435 F. 3d at 1157. Under the Williams' s court' s


interpretation of Seibert, which interpretation we adopted in Hickman, a court addressing the

admissibility of statements obtained during a two- 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 of the

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


include the timing, setting and completeness of the prewarning interrogation, the continuity of

police personnel and       the   overlapping      content of         the   pre, and   postwarning   statements."    Williams,


435 F. 3d at 1159.


         If a court determines that the use of the two- step interrogation procedure was deliberate,

it then must " determine, based on objective evidence, whether the midstream warning adequately

and effectively apprised the suspect that he had a ` genuine choice whether to 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 of his or her Miranda rights.

Williams, 435 F. 3d      at    1160- 61.   Such curative measures may include a significant break in time



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No. 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 of the two- step interrogation procedure.

During the initial interrogation in the living room before giving Miranda advisements, Olesen

asked the five handcuffed suspects whether there were any drugs in the home, and Rhoden

admitted that he had a small quantity of methamphetamine in his bedroom. After completing his

questioning of the 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 of the

prewarning interrogation, the continuity of police personnel and the overlapping content of the

pre and postwarning statements" all support the conclusion that the two- step interrogation

procedure used here was deliberate under Williams, 435 F. 3d at 1159


          The second Williams inquiry examines the effectiveness of the 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 against the

suspect   in   a subsequent criminal prosecution.   Williams, 435 F. 3d   at   1160- 61.   The evidence at


the CrR 3. 5 hearing showed that there 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 insure that Rhoden understood his Miranda



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No. 45702 -4 -II



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

Accordingly, we hold that the 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 at trial was harmless

beyond a reasonable doubt. We disagree.


              A constitutional error is harmless if the appellate court is convinced beyond a reasonable


doubt that any reasonable jury would have reached the same result in the absence of the error."

State   v.   Guloy,   104 Wn.2d 412, 425, 705 P. 2d 1182 ( 1985).         If the untainted evidence at trial was


so overwhelming that it necessarily led to a finding of guilt, reversal is not required, because

there is no " reasonable possibility that the use of inadmissible evidence was necessary to reach a

guilty   verdict."
                      Guloy, 104 Wn.2d at 426. The State bears the burden of proving 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 at trial establishing Rhoden' s constructive possession over

the seized methamphetamine was the presence of documents containing his name in the same

dresser as the methamphetamine. The State did not present any other evidence establishing that

the room in which the drugs were found belonged to Rhoden. While this untainted evidence may

meet sufficiency requirements to establish Rhoden' s constructive possession of the seized

methamphetamine, it is not so overwhelming as to necessarily lead to a finding of guilt. We

therefore cannot conclude beyond a reasonable doubt that any reasonable jury 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 of the legal financial. obligations.




                                                       BT` iZGEN

 We concur:




bi   HANsoN, C. J.




 SUTTON, J.




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