                                                                                              FILED
                                                                                      COURT OF APPEALS
                                                                                           DIVISION II

      IN THE COURT OF APPEALS OF THE.STATi138MSFIVIRIN
                                                                                     STATE OF VI SHiNGTON
                                                     DIVISION II
                                                                                     By
    STATE OF WASHINGTON,                                                              No. 44


                                         Respondent,                            UNPUBLISHED OPINION


            v.




    DENNIS LEE WOLTER,


                                         Appellant.


          BJORGEN, A. C. J. —      Dennis Lee Wolter appeals his convictions for aggravated first


degree murder and witness tampering, claiming that ( 1) the trial court erred by admitting a
number of statements        he   made to    investigating      officers, (   2) the trial court improperly dismissed a

juror during his trial, and ( 3) the jury' s finding of one of the aggravating circumstances must be

reversed due to instructional error and insufficient evidence. We hold that ( 1) the trial court did


not err   in admitting Wolter' s     statements, (       2) the trial court did not abuse its discretion in


dismissing the juror, and ( 3) Wolter' s challenge to the aggravating circumstance is moot. We

affirm.



                                                            FACTS


          Wolter' s Terry' Stop and Arrests

          In May 2011, a neighbor called 911 to report a loud and violent argument between

Wolter and his girlfriend, Kori Fredericksen. Vancouver police officers responded and, after




1
    Terry v. Ohio,   392 U. S. 1, 20, 88 S. Ct. 1868, 20 L. Ed. 2d 889 ( 1968).               We refer to the
officers'   traffic stop   of   Wolter   as a "   Terry   stop,"   because its legality is analyzed under Terry' s
requirements.     See Parts I.A.3.       and   C.   of   the Analysis below.
No. 45041 - 1 - II



investigating, arrested Wolter. The State charged Wolter with.domestic violence fourth degree

assault and domestic violence malicious mischief for the incident. At his first appearance for the


charges, the Clark County District Court issued a no- contact order prohibiting Wolter from.

contacting Fredericksen.

        Little more than a week after that first arrest, Officer Stefan Hausinger of the Camas


Police Department stopped Wolter for speeding early in the morning on a deserted stretch of

highway. When Hausinger approached the vehicle to speak with Wolter, he immediately

smelled alcohol. Hausinger also noticed that Wolter' s eyes were bloodshot, which led Hausinger

to believe Wolter was intoxicated. More alarmingly, when Wolter produced his license and

handed it to him, Hausinger noticed blood on Wolter' s hands and face. On closer inspection,


Hausinger   noticed " more   blood,   not   just   on   his hands   and   face, but   all over   his   body."   2


Verbatim Report of Proceedings, (VRP) at 201.


        Hausinger    asked   Wolter " what had happened             and ...   if he   was   okay."     2 VRP at 201.


Wolter explained that the blood was not his, but instead had come from his dog, who had been

hit by a car in Portland. Wolter' s story was quite detailed, providing the dog' s breed, name, age,

and the facts of the accident. Wolter stated that the dog' s blood had soaked him and his clothing

when he had picked it up to take it to a 24 -hour veterinary clinic, where it died and was disposed

of.




         Hausinger returned to his car, requested back -up so that he could perform field sobriety

tests on Wolter, and requested a check on Wolter' s license, which turned up a felony arrest

warrant matching Wolter' s name and date of birth. Hausinger then asked dispatch to confirm the

warrant.
No. 45041 - 1 - II



         When back -up arrived, Hausinger again approached Wolter' s car and asked him to step

out and perform several voluntary field sobriety tests. Wolter assented and two of the tests

indicated that alcohol consumption had impaired his ability to drive. Hausinger then asked

Wolter to provide a voluntary preliminary breath test. Wolter again assented and the test

disclosed a blood alcohol content below the legal limit.


         After finishing the field sobriety tests, Hausinger told Wolter he needed to verify the

story about the dog before Wolter could leave and asked how he could do so. Wolter gave

Hausinger the name of a friend he said he had been with and also told Hausinger that the receipt


from the veterinary clinic' s disposal of the dog' s body was in his truck and would confirm his

story.


         By this point, Officer William Packer and Sergeant Douglas Norcross had arrived.

Hausinger and Norcross discussed the situation while Packer stood with Wolter at the back of


Wolter' s truck. Packer, who believed that Wolter had received the Miranda2 warnings, asked


Wolter about the blood, and Wolter repeated his story about his dog.

         Hausinger and Norcross decided that a search for the receipt might resolve the situation.


Hausinger informed Wolter of his Ferrier3 rights and asked for permission to search the truck,


which Wolter gave. While Hausinger performed the search, Norcross replaced Packer at the


back   of   Wolter' s truck   and " just   kind   of engaged [   Wolter] in   conversation."   2 VRP at 280.


Wolter again told the same story about his dog. Norcross, who found it odd that Wolter would

have been travelling on the old highway instead of the new, main one, asked Wolter about his


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

3 State v. Ferrier, 136 Wn.2d 103, 118 -19, 960 P. 2d 927 ( 1998).

                                                            3
No. 45041 - 1 - I1



route. Wolter stated that he had needed to relieve himself and had been looking for an isolated

place to do so. Packer, meanwhile, attempted to verify Wolter' s story by contacting veterinary

clinics in Portland. He was able to find one clinic matching Wolter' s description, but it denied

that Wolter had come in that night.


        Hausinger' s search of Wolter' s truck failed to turn up a receipt for a veterinary clinic

visit. Hausinger did, however, find the no- contact order issued by the Clark County District

Court forbidding Wolter from contacting Fredericksen. When asked about the order, Wolter

assured the officers that the court had rescinded it that day because Fredericksen had recanted

her story.

        The officers then conferenced on how to proceed. By this point, Wolter had told the

officers that he had been on his way to visit Fredericksen. Norcross ordered an officer to try to

contact her by phone and, when that failed, by driving to find her apartment complex. The

officers also decided to ask the Vancouver police officers to perform a welfare check at Wolter' s


residence " to make sure that there was nobody at the house who was injured or in need of any

medical help, due to the amount of blood" on Wolter and his clothing. 2 VRP at 220.

         While waiting for the results of the welfare check, dispatch confirmed the existence of

the warrant, and Hausinger confirmed that the description on the warrant matched Wolter.


Hausinger placed Wolter under arrest for both the warrant and negligent driving, handcuffed

him, and read him the Miranda warnings. Wolter told Hausinger that he understood his rights


and was willing to waive them. Hausinger then transported Wolter to the Camas Police

Department for further questioning.




                                                   4
No. 45041 - 1 - II



        At the Camas Police Department, Hausinger received word that Vancouver police


officers had discovered a " probable crime scene" at Wolter' s house. 2 VRP at 230. Meanwhile,


still bothered by Wolter' s odd choice of a route home, Norcross traveled up the highway, looking

for anything out of place on the side of the road. Approximately a mile up the road from where

Hausinger stopped Wolter, Norcross found a bloody shoe on the road' s shoulder. Norcross

stopped, got out of his car, peered over the road' s shoulder, and discovered Fredericksen' s body

down the steep embankment adjacent to the road.

        After booking Wolter, Vancouver police detectives gave him the Miranda warnings acid

Wolter again agreed to waive them and speak with police. After questioning Wolter about his

dog and other matters, the detectives told him that they wanted to test his clothing to make sure

the blood was canine and not human. The request resulted in the following exchange touching

on Wolter' s right to counsel:


                     Wolter]: [             Y] ou' re not getting anything from me without a warrant.
                     First Detective]:        Okay. Fair call.
                     Second Detective]:            Well,   now, yeah, ( inaudible)[.]

                     Wolter]:           I   will not    do that. Helpful —helpful               to you all night long.
                     Second Detective]          Totally agree.
                     Wolter]            I' ve been sitting here. If you want something, get a warrant
         for it. And —and,        you       know    what?          I really don' t care if you take it, but I am just
         saying.
                     Second Detective]              No, you' re fine.
                     Wolter]            That'     s—   that'   s   something that is —you' re         going way over the
         line here.
                   First Detective]           I    honesty. And I appreciate you being
                                                  appreciate your

         forthcoming with that, okay?
                 Wolter]       But I think something like that, I' d like to have an attorney
         present for that.
                     Second Detective]              Truly, cool.
                     Wolter]            For anything           else.       If   you' re   going to   assume —   you know,
         have your assumption of things. I told you what the blood was —
                     Second Detective]              Well, can I ( inaudible) for one here?



                                                                       5
No. 45041 -1 - II



                     Wolter] --                you' re   going to take this blood         off —off   me, you' re going
           to have to have a warrant.


3 VRP at 378 -79.


           After a brief aside, one of the detectives asked Wolter about his request for counsel,


saying, "   So, for clarification, you' re saying that when we get to this point of dealing with your

clothing, that'    s where you need your             attorney    present with you[ ?]"           3 VRP    at   381.    Wolter


responded, "      Yeah,   right.   I   will answer all your questions,            I' ll tell   you what' s     going   on ...   but


that is,   you   know, it' s like      your   attorney tells     you, you   know,       you can' t   be   doing   that."   3 VRP at


382.


           After that exchange, the detectives began explicitly asking Wolter whether Fredericksen

was dead and whether he had killed her. They hinted that they had discovered Fredericksen' s

body, told him that Vancouver police detectives had found the bloody scene at his house, and

made clear to him that they would use the deoxyribonucleic acid ( DNA) evidence covering him

to prosecute him for murder. Wolter continued to assert his innocence until he finally ended the

interview by invoking his right to counsel.

           After that interview, police transported Wolter to the Clark County Jail with another

arrestee, Danielle Williams. When Williams asked Wolter what police had arrested him for, he


replied, " Murder."        11A VRP        at   2171.     Williams then realized that she knew Wolter because she


had dated Fredericksen' s stepson, and she asked Wolter whom he had killed. Wolter told her

that   he had killed Fredericksen             and   done   so   because "   she   had   narced on    him." 11A VRP at


2173.      Wolter later contacted Fredericksen' s stepson from jail and asked him, obliquely, to

convince Williams not to testify against him.




                                                                    6
No. 45041 - 1 - II



         The State charged Wolter by amended information with aggravated first degree murder

for the death of Fredericksen pursuant to RCW 10. 95. 020 and with witness tampering for

attempting to induce Williams not to testify in violation of RCW 9A.72. 120. The State alleged

that the murder was aggravated by two of the circumstances prescribed in RCW 10. 95. 020,

specifically, that: ( 1) "   at the time [ Wolter] committed the murder, there existed a court order .. .


which prohibited [ him] from either contacting the victim, molesting the victim, or disturbing the

peace of   the victim,   and [   he] had knowledge   of   the   existence of   that   order"   and ( 2)   " Kori S.


Fredricksen was a prospective, current, or former witness in an adjudicative proceeding and that

the murder was related to the exercise of official duties to be performed" by Fredricksen.4
Clerk' s Papers ( CP) at 326.


B.       The CrR 3. 5 Hearing Regarding Wolter' s Statements

         Before trial, the trial court held an evidentiary hearing, as required by CrR 3. 5, to

determine the admissibility of Wolter' s statements to police during the Terry stop and at the

Camas Police Department. The trial court concluded that Wolter' s initial statements to


Hausinger during the Terry stop were admissible, despite the fact that he made them without

receiving the Miranda warnings, because they were not the product of custodial interrogation.

Rather, the court held Wolter' s statements were the result of community caretaking questions

associated with a Terry stop. The trial court determined that Wolter' s other statements to

officers at the scene, although given without receiving the Miranda warnings, were admissible




4 The State also alleged that Wolter was armed with a deadly weapon when committing the
murder,    warranting    an enhanced sentence under        RCW 9. 94A.533( 4)( a).        The jury found that
Wolter was so armed and he has not appealed that finding.


                                                          7
No. 45041 - 1 - II



because police obtained them in a Terry stop rather than custodial detention. The trial court

concluded that Wolter' s statements to detectives at the Camas Police Department were


admissible because he had received the Miranda warnings, waived his rights to remain silent and


to counsel, and told police that he wanted them to provide him with an attorney if they attempted

to take his clothing as evidence. The trial court determined that Wolter' s request for counsel was

conditioned on future events, allowing police to continue the interrogation.

C.       The Trial


         The trial court empaneled a jury, and the parties proceeded to trial. Five days into trial,

juror 1 reported that someone had spoken to her about the case over the preceding weekend, a

possible violation of the court' s instructions to the jury. The trial court brought the juror in for

voir dire so that the parties could inquire about the communication.


         The juror stated that she had mentioned her jury duty to a friend who then asked if the

juror was serving on Wolter' s jury. Although the juror told the friend she could not discuss the

matter further, he told her, without prompting, that he knew Wolter and had spent time in jail

with him. The friend also related a brief conversation he had with Wolter during their shared

incarceration.


         Ultimately, the trial court asked the juror whether there was " anything about the

conversation that would impair [her] ability to follow the Court' s instructions on the law or the

facts in the    case ?"   9A VRP     at   1652. She replied, " No. I —I hope        not.   That'   s all   I   can —I'   ve


never   done this before,     so —[.]"      9A VRP   at   1653.   The defense followed up, asking the juror if

there   was "   anything   about [   her]   conversation with [ her]     friend ... —   that [ was] impacting [ her]

thinking   toward    either   party in this    case ?"    9A VRP   at   1653.   The juror responded,




                                                              8
No. 45041 - 1 - II



                     Mmm, I don' t know. I mean, to be honest, I think, if anything, to me, it just
        made    it   more,   like,   personable, or         like —I don' t know if the word, like, humane or

        something. Like just because —that' s all. That' s all I can tell you. That' s it. It just
        made it more real, like, someone that I knew, like, had a discussion and that — I

        don' t know. That'           s   just   all.   I don' t know —I don' t know how I feel about it. It' s
        weird. All of it is weird.


9A VRP at 1653.


        The State moved, over defense objections, to dismiss the juror. The trial court granted


the motion, stating,

                     I don' t find that the juror, Juror Number 1, deliberately violated the order.
        Apparently, she misunderstood that she needed to be more aggressive in cutting off
        the conversation when it occurred. And the information that was related in itself is
         somewhat innocuous; however, I have to agree with the State that, apparently, the
           the person relating it to her and the type of information that was related seems to
        have had       an effect on        the juror 's ability to     be fair. For that reason, I will excuse
        her and seat the first alternate.


9A VRP at 1657 ( emphasis added).


         The trial court then called the juror in and excused her, telling her that

                     I didn' t particularly find that you had done anything wrong; you should have
         been more aggressive with your friend about getting them to cut off their statements
         to   you.     But the statements seemed to have had some effect on you and in an
         abundance of caution, I' m going to make sure that only jurors who don' t have that
         sort of outside information in effect are seated.


9A VRP at 1658.


         The State presented evidence that Wolter had killed Fredericksen and that the murder had


been accompanied by the existence of several of the aggravating circumstances codified in RCW

10. 95. 020. The deputy prosecutor handling domestic violence cases in Clark County District

Court in May 2011 testified about Wolter' s prosecution for the assault and malicious mischief

offenses committed a week before Fredericksen' s murder. He testified that Fredrickson " was the


named victim     in the    case and ...           was a witness for the State" and that she " would be the most


                                                                   9
No. 45041 -1 - II



important         witness   for the State in the -- in the   case."   10A VRP at 2009. The prosecutor also


testified that Wolter was aware of the no- contact order between himself and Fredericksen and

that it was in effect at the time of Fredericksen' s murder. Williams testified that Wolter stated


that he had killed Fredericksen because             she   had " narced"   on   him. 11A VRP at 2173.


         The jury found Wolter guilty of first degree murder and witness tampering. The jury also

returned special verdicts finding the two aggravating circumstances alleged by the State.

         Wolter now appeals.


                                                       ANALYSIS


                                              I. WOLTER' S STATEMENTS


         Wolter contends that the trial court erred by admitting statements obtained by police at

the scene of the Terry stop and during the interview with detectives after his arrest. After a brief

survey of our standard of review and the principles set out in Miranda and its progeny, we

address Wolter' s claims in turn, holding against each of them.

A.       Applicable Legal Principles and Standard of Review


             1.   CrR 3. 5


         CrR 3. 5 governs the admissibility of statements by a criminal defendant. The rule requires

the trial court to hold a hearing and make findings of fact and conclusions of law concerning the

admissibility of those statements. CrR 3. 5.

         We review challenged findings of fact entered after the trial court' s CrR 3. 5 hearing for

substantial evidence. State v. Rosas -Miranda, 176 Wn. App. 773, 779, 309 P. 3d 728 ( 2013).

Substantial evidence is evidence sufficient to " persuade a fair -minded, rational person of the


truth   of   the   finding." State v. Shuffelen, 150 Wn. App. 244, 252, 208 P. 3d 1167 ( 2009).


                                                               10
No. 45041 - 1 - I1



Unchallenged findings are verities on appeal. State v. Broadaway, 133 Wn.2d 118, 131, 942

P. 2d 363 ( 1997).    If the trial court' s findings are unchallenged or supported by substantial

evidence, we then review de novo whether those findings of fact support the trial court' s


conclusions of law. Rosas -Miranda, 176 Wn. App. at 779.

         2. Miranda


         The Fifth Amendment to the United States Constitution                     provides   that "[   n] o person .. .




shall   be   compelled   in any   criminal case   to be   a witness against        himself." The due process clause


of the Fourteenth Amendment to the United States Constitution incorporates this provision,


making it applicable to action by the states. Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 12

L. Ed. 2d 653 ( 1964). 5

         In Miranda, the United States Supreme Court " addressed the problem of how the


privilege against compelled self -incrimination guaranteed by the Fifth Amendment could be

protected from the coercive pressures that can be brought to bear upon a suspect in the context of

custodial     interrogation."     Berkemer v. McCarty, 468 U.S. 420, 428, 104 S. Ct. 3138, 82 L. Ed. 2d

317 ( 1984) ( citing Miranda, 384 U. S.       at   436).   We review whether a suspect was in custody for

purposes of     Miranda    by   examining,   under   the   totality   of   the   circumstances, whether '       there


 was] a " formal arrest or restraint on freedom of movement" of the degree associated with a


formal   arrest. "'   Thompson v Keohane, 516 U. S. 99, 112, 116 S. Ct. 457, 133 L. Ed. 2d 383

 1995) (     quoting California v. Beheler, 463 U. S. 1121, 1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275



5 In his assignments of error, Wolter claims that the admission of his statements also violated
article I, sections 9 and 22 of the Washington State Constitution. He offers no specific argument
based on the state constitution, and we consider the claim of error waived. State v. Goodman,
150 Wn.2d 774, 782, 83 P. 3d 410 ( 2004).

                                                            11
No. 45041 - 1 - II



 1983) (   quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 50 L. Ed. 2d 714

 1977))).


           The Miranda Court held that preserving the privilege against self incrimination
                                                                             -             required

that " custodial interrogation be preceded by advice to the putative defendant that he [ or she] has

the   right   to   remain silent and also   the   right   to the   presence of an   attorney."    Edwards v. Arizona,


451 U. S. 477, 481 - 82, 101 S. Ct. 1880, 68 L. Ed. 2d 378 ( 1981) (                citing Miranda, 384 U.S. at

479).    If police secure a valid waiver of these rights, they may freely question a defendant, Davis

v.   United States, 512 U. S. 452, 458, 114 S. Ct. 2350, 129 L. Ed. 2d 362 ( 1994), and the trial


court may admit any statements the suspect makes to police during the interrogation. Missouri v.

Seibert, 542 U. S. 600, 608 -09, 124 S. Ct. 2601, 159 L. Ed. 2d 643 ( 2004). However, without


such a waiver, any inculpatory statements obtained through custodial interrogation are generally

inadmissible. Seibert, 542 U.S. at 608.


           3.      Terry

           The state and federal constitutions generally prohibit the police from seizing a person

without a warrant supported by probable cause. State v. Menesee, 174 Wn.2d 937, 942 -43, 282

P. 3d 83 ( 2012) ( citing U. S. CONST.        amend       IV   and   WASH. CONST.    art.   I; § 7).   Among the limited

exceptions to this prohibition is an investigative detention, or Terry stop. State v. Day, 161

Wn.2d 889, 896, 168 P. 3d 1265 ( 2007).              A Terry stop is valid if "justified at its inception" and

 reasonably related in scope to the circumstances which justified" the stop. Terry v. Ohio, 392

U. S. 1, 20, 88 S. Ct. 1868, 20 L. Ed. 2d 889 ( 1968);                Day, 161 Wn.2d at 895 -96. A stop is

justified at its inception where the detaining officer can " point to specific and articulable facts

which, taken together with rational inferences from those facts, reasonably warrant" allowing the


                                                                12
No. 45041 -1 - II



officer to detain a suspect without a warrant. Terry, 392 U. S. at 21; Day, 161 Wn.2d at 895 -96.

The stop is related in scope to the circumstances justifying it where brief and of limited

intrusiveness.           Terry, 392 U.S. at 24 -27; Day, 161 Wn.2d at 895.

             Where      police   detain    a suspect     in   a   traffic   or   Terry   stop,   they " significantly     curtail[]"   the



detainee'     s "'    freedom     of action. "'      Berkemer, 468 U.S. at 436, 439 ( quoting OHIO REV. CODE

ANN. § 4511. 02 ( 1982)).                These detainees are, however, not in custody for purposes of Miranda

for two      reasons. , Berkemer,          468 U. S.     at   437 -40. First, traffic        or    Terry   stops "[   are] presumptively


temporary         and    brief': the detainee can expect to answer a limited number of questions but will


then    likely " continue         on   his [ or her] way." Berkemer, 468 U. S.                    at   437, 439 -40. Second, traffic


or   Terry    stops are     less "'    police      dominated ' than jailhouse interrogations. Berkemer, 468 U.S. at


438 -39. The stops occur in public, rather than in the hidden confines of a jailhouse, and involve


a limited number of police officers. Berkemer, 468 U.S. at 438.

B.           The CrR 3. 5 Findings of Fact and Conclusions of Law


             Wolter assigns error to two of the trial court' s findings and portions of three of its


conclusions that he claims actually constitute findings. Appellant' s Opening Br. at 2 -3 ( assigning

error   to   findings      of   fact 7   and   9   and conclusions of            law 3, 5,   and   9). We treat "[ s] tatements of


fact included within conclusions of law" as factual findings and review them as such. Kunkel v.


Meridian Oil, Inc., 114 Wn.2d 896, 903, 792 P. 2d 1254 ( 1990).


             Substantial evidence supports each of the challenged findings that are actually factual
              6
findings.            Wolter first   contends        that the trial    court' s    findings " misstate[] the timing of the police




6 As later discussed, Wolter' s challenges to conclusion of law three and nine are not factual and
are addressed below as challenges to the trial court' s legal conclusions.

                                                                        13
No. 45041 - 1 - II



investigation and reason" for his arrest. Br. of Appellant at 2. Hausinger, however, testified to


the timing and reason for arrest found by the trial court. Thus, substantial evidence supports this

challenged finding. Wolter next claims that the trial court erred by finding that the interview

with   city   of   Vancouver detectives only   continued   for " a few   more minutes."   CP   at   231.   The


record shows that the interview following that first request for counsel was brief, thus supporting

this finding. Wolter finally contends that the trial court erred by finding that the police clarified

Wolter' s first request for counsel just after he made it. The record shows exactly that.

C.       The Terry Stop

         Turning now to the nature of the Terry stop, Wolter first argues that the statements

obtained by police during it were the product of custodial interrogation performed without first

providing him the Miranda warnings. For the reasons below, we hold that Wolter was not in

custody during the Terry stop and, consequently, the trial court did not err by admitting the

statements Wolter made during the stop.

         Police stopped Wolter in what was essentially a combined traffic and Terry stop. The

stop occurred on a public roadway and police asked him a limited number of questions, all

directed toward confirming or disproving his explanation of how he had become covered in

blood. The scope and duration of the stop was reasonably related to its legitimate purposes,

determining whether Wolter or another person needed emergency medical attention and

investigating the circumstances that reasonably led the officer to suspect Wolter may have

committed a crime. Berkemer, 468 U.S. at 439 ( quoting United States v. Brignoni- Prince, 422

U. S. 873, 881, 95 S. Ct. 2574, 45 L. Ed. 2d 607 ( 1975)).         Under Berkemer, Wolter was not in


custody for purposes of Miranda. Hausinger and the other officers did not need to provide the


                                                       14
No. 45041 - 1 - II



Miranda warnings to Wolter, and the trial court did not err by admitting the statements Wolter

made to the officers at the scene of the stop.

        Nevertheless, Wolter contends that two factors transformed the traffic and Terry stop into

a custodial detention requiring Miranda warnings: the evidence that police gathered and the fact

that police took his license and did not give it back to him before his arrest. These arguments fail

to persuade.


           Wolter' s claim that the detention became custodial because police had gathered evidence


against him improperly focuses on the subjective intents of the stop' s participants. The test used

to determine whether police have taken a suspect into custody for purposes of Miranda is

objective.    Berkemer, 468 U. S.   at   442. "   An officer' s knowledge or beliefs may bear upon the

custody issue if they   are conveyed,     by   word or   deed, to the individual   being   questioned,"   but


otherwise are irrelevant to our review of whether an individual is in custody. Stansbury v.

California, 511 U. S. 318, 325, 114 S. Ct. 1526, 128 L. Ed. 2d 293 ( 1994); Berkemer, 468 U. S. at


441 -42. Whatever evidence police had, and whatever their suspicions, they never communicated

to Wolter that he would be arrested for any of these things until they actually took him into

custody. Thus, their knowledge or suspicions were irrelevant to whether he was effectively in

custody. Even if Wolter correctly believed that police would arrest him given what they knew,

that belief is also irrelevant. Stansbury, 511 U.S. at 323 ( detainee' s subjective belief irrelevant to

issue of custody).

           Instead, we look to the objective circumstances of the stop, and, on balance, they do not

suggest that a reasonable person would have " gauge[ d] the breadth of his or her ` freedom of


action '    to be restricted to the degree associated with formal arrest. Stansbury, 511 U.S. at 325


                                                         15
No. 45041 - 1 - II



 quoting Berkemer, 468 U. S.        at   440).   The officers did not physically restrain Wolter, either with

handcuffs or by placing him in a police vehicle. State v. Rehn, 117 Wn. App. 142, 155, 69 P. 3d

379 ( 2003).      Nor did they unholster their weapons. State v. Marshall, 47 Wn. App. 322, 326,

737 P. 2d 265 ( 1987).      Further, police did not order Wolter to obey any commands: they only

asked him to voluntarily undergo field sobriety tests and to consent to the search of his truck.

State   v.   Ustimenko, 137 Wn.     App.    109, 116, 151 P. 3d 256 ( 2007). Nor does Wolter contend that


he requested and was .denied permission to leave during the stop. Finally, the scope and duration

of the stop, as already noted, was reasonably related to its legitimate purpose of determining if

Wolter or anyone else was in need of help and whether he may have been involved in a crime. A

reasonable person in those circumstances would not believe that this was anything more than a

Terry stop and would not understand himself or herself to be effectively under arrest during the

stop.


             Wolter' s claim that his detention became custodial because police kept his license is also

unavailing. A       reasonable   motorist " expect[ s],   when he sees a policeman' s light flashing behind

him ...      that he will be obliged to spend a short period of time answering questions and waiting

while   the officer checks    his license    and registration."   Berkemer, 468 U.S. at 437. Police could


unquestionably take Wolter' s license to check his identity. They could also detain him until they

had verified he had no outstanding warrants. Since the police could validly keep Wolter on

scene while they verified a lack of arrest warrants without making the detention custodial, they




                                                           16
No. 45041 -1 - II.



could keep his license while they ran those checks without making the situation custodial. See

Berkemer, 468 U.S. at 437 -38; State v. Ferguson, 76 Wn. App. 560, 886 P. 2d 1164 ( 1995). 7

         Wolter makes two further arguments of error related to the CrR 3. 5 hearing. First, he

contends that the trial court erred because it "made no finding that the State proved a reasonable

person in [his] position would have felt he was not being held by the police to a degree

associated with arrest."        Br.   of   Appellant   at   24.   Specifically, Wolter claims that by failing to do

so, the trial court applied the wrong legal standard. Whether a reasonable person would have felt

that he or she was effectively in custody under the facts present here is a question of law, not of

fact. Thompson, 516 U. S. at 112 -16; State v. Lorenz, 152 Wn.2d 22, 36, 93 P. 3d 133 ( 2004).


Any trial court findings would have been superfluous on review of the custody question.

Thompson, 516 U. S. at 112 -16. The trial court did not err.


         Wolter also contends that the trial court erred in finding that police arrested him for the

out -of -state warrant because they " had probable cause to arrest him for negligent driving from

close   to the inception   of   the stop."     Br. of Appellant at 27. Hausinger testified that he arrested


Wolter for both negligent driving and the out -of -state warrant, meaning the trial court' s finding

is correct, if incomplete. Regardless, the fact that police had probable cause to arrest Wolter


before they did so is irrelevant to whether he was in custody. State v. Harris, 106 Wn.2d 784,

789 -90, 725 P. 2d 975 ( 1986);        see Stansbury, 511 U. S. at 323 ( citing Beckwith v. United States,

425 U. S. 344, 96 S. Ct. 1612, 48 L. Ed. 2d 1 ( 1976)).




7 In Ferguson police appear to have taken and kept Ferguson' s license, but the court held that he
was not in custody for purposes of Miranda. 76 Wn. App. at 563, 568. Ferguson apparently did
not argue that the taking and keeping of the license made the detention custodial, so it is not
precedential, but it is instructive given that Division One of our court found that Ferguson was
not in custody after its de novo review of the issue.

                                                                  17
No. 45041 - 1 - II



        The totality of the circumstances shows that Wolter' s detention was not custodial until

Hausinger announced he was arresting him, handcuffed him, and placed him in a squad car.

Without custody, questioning cannot constitute custodial interrogation and Miranda is not

implicated. We hold that the trial court properly admitted the statements he made to officers

during the detention.

D.      The Interview


        Wolter next contends that the trial court erred by admitting statements he made during his

interview with detectives after his arrest. Specifically, he contends that the statements were

inadmissible because he made them after he requested that police provide him with counsel. We


hold that the officers honored Wolter' s limited assertion of his right to counsel and that Miranda


did not require the exclusion of the statements.


        A defendant may assert his or her right to counsel in a limited fashion. Connecticut v.

Barrett, 479 U. S. 523, 529 -30, 107 S. Ct. 828, 93 L. Ed. 2d 920 ( 1987).          Where the police honor


a limited assertion of the right to counsel, Miranda does not require suppression of the

statements they obtain from the defendant. Barrett, 479 U.S. at 529 -30.

        Wolter asserted his right to counsel in a limited way. He asked that the police provide

him counsel before taking his clothing as evidence and then explicitly stated his willingness to

otherwise answer questions. The police honored his limited request for counsel, and therefore


his " right to   choose   between   silence and speech,"   the right guaranteed by Miranda. 384 U.S. at

369; Barrett, 479 U. S.     at   529. Wolter " chose to   speak."   Barrett, 479 U. S. at 529. The trial


court properly admitted his statements. Barrett, 479 U.S. at 529 -30.




                                                      18
No. 45041 - 1 - II



                                                 II. REMOVAL OF THE JUROR


        Wolter next claims that the trial court " interfered with [his] right to a jury trial by

removing     a seated    juror   who was not         biased,   partial, or unable          to   serve."   Br. of Appellant at 12.


We disagree.


A.      Applicable Legal Principles and Standard of Review


        The State and criminal defendants both have-the right to trial before an impartial jury.

WASH. CONST.         art.   I, § 22; U. S. CONST. amend. VI; State v. Hughes, 106 Wn.2d 176, 185, 721


P. 2d 902 ( 1986) (    citing Hayes v. Missouri, 120 U.S. 68, 70 -71, 7 S. Ct. 350, 30.L. Ed. 578

 1887)).    The   jury   must    therefore    be " free[] from ... bias against the accused and for the


prosecution,     but [ also] free[] from ...            bias for the   accused and against            the   prosecution."   Hughes,


106 Wn.2d 185. The guarantee of an impartial jury does not, however, entitle the State or a

criminal    defendant the       right   to trial   by   a " particular   juror   or   by   a particular     jury."   State v.


Gentry, 125 Wn.2d 570, 615, 888 P. 2d 1105 ( 1995).

           We   review      the trial court' s     dismissal   of a juror   for   an abuse of        discretion.$ State v.


Depaz, 165 Wn.2d 842, 852, 204 P. 3d 217 ( 2009). Both statute and court rules constrain that


discretion. See Ottis v. Stevenson -Carson Sch. Dist. No. 303, 61 Wn. App.. 747, 751 -52, 812

P. 2d 133 ( 1991).       RCW 2. 36. 110 provides that


            i] t shall be the duty of a judge to excuse from further jury service any juror, who
           in the opinion of the judge, has manifested unfitness as a juror by reason of bias,
           prejudice, indifference, inattention, or any physical or mental defect or by reason
           of conduct or practices incompatible with proper and efficient jury service.




8 The special constraints on the trial court' s discretion to dismiss a juror after submitting a case
to the jury are inapplicable, since the case had not yet been submitted. See, e. g., State v. Elmore,
 155 Wn.2d 758, 778, 123 P. 3d 72 ( 2005), and Depaz, 165 Wn.2d at 852 -58.


                                                                  19
No. 45041 -1 - II



CrR 6. 5   provides     that "[   i] f at any time before the submission of the case to the jury a juror is

found   unable      to perform the      duties the   court shall order      the juror discharged."   We have


interpreted these provisions to " place a continuous obligation on the trial court to excuse any

juror   who   is   unfit and unable      to   perform   the duties   of a   juror."   State v. Jorden, 103 Wn. App.

221, 227, 11 P. 3d 866 ( 2000).


          Whether a juror is unfit because of bias or prejudice is a question of fact. Ottis, 61 Wn.


App. at 753 -54. Because the trial court observes the juror answering questions when asked about

possible bias, we accord great deference to its factual determinations about a juror' s ability to

serve   impartially.     State    v.   Rupe, 108 Wn.2d 734, 749, 743 P. 2d 210 ( 1987);            Ottis, 61 Wn. App.

at 755 -56.


B.        Propriety of the Dismissal

           The trial court had tenable grounds to find the juror had become biased. Although the


juror did express that she thought she could follow the trial court' s instructions during voir dire,

she also stated that Wolter' s contact with her friend had affected her thinking about the case.

The trial court resolved the juror' s contradictory answers about her ability to serve impartially by

finding that the communication with her friend " seems to have had an effect on the juror' s ability

to be   fair."     9A VRP at 1657. We defer to that finding.

           The trial court had tenable reasons to excuse the juror. Once the trial court found that the

communication had biased the juror, it had no discretion: it had to dismiss the juror under our


interpretation of RCW 2. 36. 110 and CrR 6. 5, Jorden, 103 Wn. App. at 227, in order to safeguard

the State' s right to an impartial jury. Hughes, 106 Wn.2d at 185. There was no abuse of

discretion.




                                                               20
No. 45041 -1 - II



              Wolter, however, contends that the trial court actually found that the juror had not

committed misconduct, citing the portion of the record where the trial court dismissed the juror

after   telling her     that " she   had   not ` done   anything wrong. "' 9        Appellant' s Br. at 17 ( quoting 9A

VRP     at    1658).    As just noted, the trial court explicitly found that the communication had biased

the juror. In the        portion of   the   record   Wolter    cites,   the trial   court stated, "   I don' t find that the


juror, Juror Number 1, deliberately violated the order. Apparently, she misunderstood that she

needed to be more aggressive in cutting off the conversation when it occurred" before finding

she   had become biased         and    ruling that "[ f]or that reason, I will excuse her and seat the first


alternate."       9A VRP at 1657. With this, the court was explaining that it had not found intent to

disregard its orders, only that the juror had actually done so. The court did not find an absence

of misconduct on the part of the juror.


              Wolter also contends that the trial court abused its discretion in dismissing juror 1

because it denied his motion to dismiss other jurors who, he contended, showed greater bias than

that juror. This argument fails for three reasons. First, RCW 2. 36. 110 and CrR 6. 5 do not define

bias    or prejudice on a relative scale:            once   the trial   court                a juror is biased, it must


dismiss the juror regardless of its decision about the bias of other jurors. See Jorden, 103 Wn.


App.     at   227.     Second, Wolter' s argument would only seem to prove that the trial court erred by

not dismissing those jurors, but he has not assigned error to those decisions or asked that we


9 In conjunction with this argument, Wolter contends that we should review the dismissal
without deference to the trial court because the trial court did not explicitly state it was basing its
finding on its observations of the juror during the voir dire related to the incident. But the trial
court heard juror 1' s contradictory answers concerning her ability to serve fairly and resolved the
contradiction by finding the communication had biased her. That finding was inherently based
on the trial court' s observation of the juror' s answers, and we must defer to its finding. Rupe,
 108 Wn.2d at 749.

                                                                  21
No. 45041 -1 - II



grant him relief based on any error in refusing to dismiss those jurors. Therefore, he has waived

any   claim of error   to the seating   of these other   jurors. RAP 10. 3(   a)(   4), ( 7).   Finally, the potential

jurors that Wolter claims exhibited more bias than juror 1 stated during voir dire that they could

be fair and that they could hold the State to its burden of proof based on admissible evidence.

The trial court heard the jurors' answers and found no bias, and, again, we defer to that

determination. Rupe, 108 Wn.2d at 749.


                                    III. AGGRAVATING CIRCUMSTANCE


           Wolter finally claims that ( 1) the trial court erroneously instructed the jury on one of the

aggravating factors alleged by the State and that (2) the State failed to present sufficient evidence

of the aggravator. Wolter' s claims concerning the aggravator are moot because we cannot grant

him meaningful relief.


           Here, the jury found the existence of two aggravating circumstances. First, it found that

Fredericksen was a witness in an adjudicative proceeding and that her murder related to her

official   duties. RCW 10. 95. 020( 8).     Wolter challenges this aggravator. Second, the jury also

found that, at the time Wolter murdered Fredericksen, he knew that a court order prohibited him

from " contacting [ her], molesting [ her],     or   disturbing [ her]   peace."    CP at 326; RCW


10. 95. 020( 13).   Wolter assigns no error to this finding.

           The jury' s finding of a single aggravating circumstance elevates premeditated first degree

murder to aggravated first degree murder. RCW 10. 95. 020. Consequently, regardless of our

disposition of Wolter' s challenge to the witness aggravator, Wolter would still be guilty of

aggravated first degree murder because of the no- contact aggravator. RCW 10. 95. 020( 13).


RCW 10. 95. 030( 1) would still require that he receive a sentence of life imprisonment without the



                                                          22
No. 45041 - 1 - II



possibility of parole. Therefore, we can provide Wolter with no meaningful relief. His claims

about the aggravator are moot and we decline to address them. Yakima Police Patrolmen' s Ass 'n


v City of Yakima, 153 Wn. App. 541, 552, 222 P. 3d 1217 ( 2009).

                                          CONCLUSION


        The trial court did not err by admitting Wolter' s statements to the investigating officers

and had tenable grounds and tenable reasons for dismissing the juror. Further, even if we accept

Wolter' s arguments about one of the aggravating circumstances, we can grant him no relief

regarding his sentence for aggravated murder, rendering his arguments moot. We affirm.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.


                                                                                      JP:




                                                                           14,   C.
                                                             w, A. C. J.
 We concur:




 WO swiCK, J.




 SUTTON, J.




                                                  23
