         IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 No. 72745-1-1
                      Respondent,
         v.                                      DIVISION ONE

BRIAN A. PEREZ REYES,                            UNPUBLISHED OPINION

                     Appellant.                  FILED: March 7, 2016


         Leach, J. — Brian Perez Reyes appeals his conviction for manslaughter in

the first degree. He challenges the trial court's admission of statements he made

during an interrogation without first receiving Miranda1 warnings.      The State

claims that any erroneous admission of Perez Reyes's statements was harmless

error.    Because Perez Reyes did not make new or incriminating statements

during the asserted custodial interrogation and overwhelming, untainted evidence

supported the verdict, any error in admitting the interview was harmless beyond a

reasonable doubt. We affirm.


                                    Background

         Perez Reyes was the sole caretaker of his two-month-old son, D.P.R., on

the evening of June 27, 2013.       Early the next morning, Perez Reyes told his

mother that D.P.R. was nonresponsive, and he and his mother drove D.P.R. to



       1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
No. 72745-1-1/2




the emergency room. Upon arrival at the hospital, D.P.R. was not breathing and

had no pulse.

      At the hospital, Perez Reyes described the events leading up to and

causing D.P.R.'s injuries several times.   He told the doctor at the emergency

room that around 4:30 a.m. D.P.R. had still not woken up to eat, so Perez Reyes

went to get his food but was unable to wake him when he returned. He told

Aunna Collins, D.P.R.'s mother, that D.P.R. woke up around 3:00 a.m., so he

went to get a bottle.   He said he found D.P.R. was not breathing when he

returned. He told Bianca Collins, the maternal grandmother, that he tried to wake

D.P.R., but D.P.R. would not move.

      While D.P.R. was transferred to Seattle Children's Hospital, the E.R.

doctor at Swedish contacted Child Protective Services. She reported that Perez

Reyes did not seem appropriately concerned. At Seattle Children's Hospital, the

intensive care doctor treating D.P.R. concluded that nonaccidental trauma

remained the leading diagnosis.       Accordingly, she notified Child Protective

Services and the police department.

      A hospital social worker then interviewed Perez Reyes. Perez Reyes told

her that D.P.R. had woken up crying. When Perez Reyes got back from getting a

bottle, he saw D.P.R. rapidly inhaling and having difficulty breathing.    Perez

Reyes then demonstrated shaking D.P.R. gently to wake him and trying CPR

(cardiopulmonary resuscitation).
No. 72745-1-1/3




       D.P.R. died the afternoon of June 29, 2013.          Physical examinations of

D.P.R. at the hospital and during the autopsy revealed that he had suffered a

devastating brain injury consistent with nonaccidentally inflicted trauma. After

examining D.P.R., the chief medical examiner and a child abuse specialist each

found that a short fall would not have caused the injury.

       The chief medical examiner classified the manner of death as homicide


caused by violent shaking. He also determined that some time probably elapsed

between "the infliction of the injury and the time the brain [had] really swollen up

causing a medical problem."

       On June 28, 2013, Snohomish County Sheriff's detectives were called to

the hospital to investigate. At the hospital, Bianca Collins told a detective that

she and Aunna Collins had previously warned Perez Reyes about handling

D.P.R. too roughly.

       At Perez Reyes's apartment complex, Perez Reyes and Aunna Collins

agreed to speak with detectives.     Aunna Collins told a detective that she had

previously noticed a bruise on D.P.R.'s left leg in an apparent fingerprint pattern.

Although Aunna did not know the cause of the injury, Perez Reyes told her to

hide it from her mother, Bianca Collins, because he thought she would become

suspicious.

       Detectives Scharf and Ross interviewed Perez Reyes in Detective Ross's

car.   Detective Ross explained the process of a recorded interview and told

Perez Reyes that he was not under arrest and could leave at any time. Perez
No. 72745-1-1/4




Reyes gave permission to have the conversation recorded and signed a

noncustodial interview form.    Ross and Scharf questioned Perez Reyes for just

over 3 hours.     The first portion of the interview lasted about 1 hour and 15

minutes. After a 10- to 20-minute break, the detectives asked Perez Reyes if he

would continue to speak with them. During the break, a detective told Ross that

the hospital had classified D.P.R.'s injuries as not accidental but had been

inflicted by shaking the baby violently. The second interview lasted about 2 more

hours.


         During both interviews, Perez Reyes told the detectives that he had picked

up D.P.R. to go make a bottle but tripped and dropped D.P.R. on his head. Then

when he picked D.P.R. up, he realized that D.P.R had stopped breathing, so he

moved him back and forth two or three times.


         Toward the end of the second interview, Detective Scharf said, "I think

we're gonna just have to take him to jail." The conversation with Perez Reyes

continued for a short time. During this time, Perez Reyes repeatedly said that he

had told the detectives everything that had happened and he wanted to go be

with his son.    Before long, Ross got out of the car, leaving Scharf with Perez

Reyes. After five minutes, Ross returned, opened the door, placed Perez Reyes

under arrest, and read him his Miranda rights.

         Perez Reyes then agreed to speak to Detective Martin and demonstrated

how he had dropped D.P.R. but had not violently shaken him. Martin asked if

Perez Reyes was willing to continue talking, and Perez Reyes agreed.             In
No. 72745-1-1/5




Martin's car, Perez Reyes signed a recorded interview form and a form

acknowledging he understood his Miranda rights and was waiving them.

Detective Martin had Perez Reyes again describe what happened the night

before for about 49 minutes until Perez Reyes stated he did not wish to speak

anymore.


       The trial    court conducted    a   CR 3.5 hearing    on   his statements'

admissibility.   Perez Reyes claimed that after the detective said, "I think we're

gonna just have to take him to jail," the interview became custodial and required

Miranda warnings.        Because the detectives gave none, any subsequent

statement was not admissible as evidence.          The trial court disagreed and

admitted the entirety of the two interviews into evidence. The parties agreed to a

stipulated bench trial, and the court found Perez Reyes guilty of first degree

manslaughter. Perez Reyes appeals.

                                      Analysis

       Perez Reyes asserts that his conviction must be reversed because the

trial court erred in admitting the last part of his interview with Detective Scharf

and Detective Ross. He contends that after hearing Detective Scharf say, "I think

we're gonna just have to take him to jail," he reasonably believed that he was in

custody.    This required the detectives to give him Miranda warnings before

continuing the interview.
No. 72745-1-1/6



      The Fifth Amendment to the United States Constitution states that no

person "shall be compelled in any criminal case to be a witness against himself."2
To protect this right, a suspect must be warned before any custodial interrogation
"that he has a right to remain silent, that any statement he does make may be
used as evidence against him, and that he has a right to the presence of an

attorney" or the statement cannot be used as evidence at trial.3 Miranda
warnings are only required after the person is taken into "custody," meaning "a
reasonable person in the individual's position would believe he or she was in
police custody to a degree associated with formal arrest."4
       If a court admits a statement obtained in violation of Miranda, this error

requires reversal only if prejudicial.5 We review the record de novo to determine
if the error is harmless beyond a reasonable doubt.6 To find a Miranda violation
harmless beyond a reasonable doubt, we look "only at the untainted evidence to
determine if the untainted evidence is so overwhelming that it necessarily leads

to a finding of guilt."7 The State has the burden of demonstrating that the
admission of the statement did not contribute to the final conviction.8 This court




       2 Miranda, 384 U.S. at 444-45.
       3 Miranda, 384 U.S. at 444-45.
       4 State v. Lorenz, 152 Wn.2d 22, 36-37, 93 P.3d 133 (2004).
      5State v. Nvsta, 168 Wn. App. 30, 43, 275 P.3d 1162 (2012); State v.
  Reuben, 62 Wn. App. 620, 626, 814 P.2d 1177 (1991).
      s Arizona v. Fulminante. 499 U.S. 279, 295, 111 S. Ct. 1246, 113 L Ed. 2d
  302(1991).
       7 State v. Gulov. 104 Wn.2d 412, 426, 705 P.2d 1182 (1985).
       8 Fulminante, 499 U.S. at 296.
No. 72745-1-1/7




will reverse a conviction if there is any reasonable chance that the use of

inadmissible evidence was necessary to reach the guilty verdict.9

       The parties agree that the earlier interviews between Perez Reyes and the

two detectives were noncustodial and any statements made during that time

were admissible. The parties also agree that Perez Reyes did not change his

statement of the facts during the entire interview period, including the time when

Perez Reyes asserts the interview became custodial.           Perez Reyes only

challenges the statements he made to police officers during the final minutes of

the second interview. But even if the statements made during that portion of the

interview were tainted, striking those statements would not alter the evidence

available to the trial court because "[t]he tainted evidence was repetitive of the

untainted evidence."10 Thus, we need not decide if the interview was custodial

during that short portion of the interview.

       The only evidence the detectives gained from the interviews was Perez

Reyes's description of what happened at the time of the injury.       The record

makes clear that Perez Reyes made voluntary statements consistently providing

the same description of how D.P.R. had been injured before the time he claims

the interview became custodial and in an interview with another detective after

waiving his rights. During both interviews, Perez Reyes said that he had dropped

D.P.R. on his head while going to get a bottle and that D.P.R. was not breathing



       9 Nvsta, 168 Wn. App. at 43.
       10 Nvsta, 168 Wn. App. at 43.
No. 72745-1-1/8




when he picked him up.          This description of how the injury occurred is

inconsistent with the actual injury and different from what Perez Reyes had

previously told others. Perez Reyes does not specify any information provided

during the end of the interview that the trial court should have stricken.     The

record provides no indication that the trial court used any information from that

period in convicting Perez Reyes.

       Instead, the trial court relied primarily on evidence obtained from other

sources. Perez Reyes confirmed to others that he had D.P.R. in his sole care

during the time the injury occurred. The testimony of the doctors who performed

physical examinations of D.P.R. at the hospital and during the autopsy revealed

D.P.R. had suffered a devastating brain injury caused by a nonaccidentally

inflicted trauma, such as violent shaking.     Perez Reyes told conflicting stories

when describing the events causing D.P.R.'s fatal injuries to Aunna Collins,

Bianca Collins, the doctors providing treatment, the social worker, and the police.

All of these statements were inconsistent with the medical findings.        Finally,

Aunna and Bianca Collins told detectives that Perez Reyes had a history of

handling   D.P.R.   too   roughly.    This    untainted   evidence   overwhelmingly

demonstrates Perez Reyes's guilt.

                                     Conclusion


      Even if Perez Reyes made statements during a custodial interrogation

without receiving Miranda warnings, there is no reasonable chance that the use

of the asserted tainted evidence was necessary to reach the trial court's guilty



                                        -8-
No. 72745-1-1/9




verdict.   Because overwhelming, untainted evidence supports the trial court's

decision, any error in admitting the challenged portion of the interview was

harmless. We affirm.




                                                     L^f
WE CONCUR:




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