                                                                                                   FILED
                                                                                              COURT OF
                                                                                                           APPEALS
                                                                                                     DIVISION II
                                                                                            ZQtS NAR 3
                                                                                                          Ai 8: 33
                                                                                            STATE.
                                                                                            13
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGT

                                              DIVISION II


 STATE OF WASHINGTON,                                                   No. 44168 -3 -II


                                     Respondent,


        v.




 TRAVIS C. BAZE,                                                  UNPUBLISHED OPINION


                                     Appellant.




       LEE, J. —   A jury found Travis Baze guilty of first degree assault, first degree robbery and

first degree felony murder. Baze appeals, arguing that ( 1) the trial court improperly admitted the

statement Baze made to the police and ( 2) his convictions for assault and robbery must be vacated

because they violate double jeopardy. The trial court properly admitted Baze' s statements and his

convictions do not violate double jeopardy. We affirm.

                                                   FACTS


       On March 26, 2012, Baze drove Stephen Churchill to a park for an arranged drug deal with

Shawn Morrow. When Morrow arrived, Churchill jumped out of the car and hit him in the head

with a baseball bat. Morrow suffered severe head trauma and later died from his injuries.

       Detective Jeffrey Rhoades was the primary detective assigned to the investigation of

Morrow' s    murder.   On March 27, Rhoades interviewed Baze and Churchill at Churchill' s

residence and arrested   both   of   them.   After being booked into jail, Baze gave a lengthy recorded

interview to Rhoades     and   Detective Matt Ledford, in     which   Baze   admitted   his involvement in
No. 44168 -3 -II



Morrow' s assault. Baze also told Rhoades that Churchill took $45 from Morrow. Baze stated that

he thought Churchill     was   going to " maybe      rough [ Morrow]         up   and   take his money," but he did not



know Churchill was going to beat Morrow in the head with a bat. Ex. 70 at 22 ( some capitalization

omitted).   After the assault, Churchill told Baze that he beat Morrow because Morrow had stolen

from him.


         The State charged Baze with first degree assault, first degree robbery, first degree felony

murder ( predicated on     the robbery),      and second degree felony murder ( predicated on the assault)

in the   alternative   to first degree     felony   murder.         In addition, Baze was charged with a deadly

weapon enhancement for each crime.


         The trial court held a CrR 3. 5 hearing to determine the admissibility of Baze' s statement.

Detective Rhoades testified that he read Baze his Miranda rights when Baze was arrested and told

Baze that detectives      would speak        to   him   after   he   was   booked into jail.      Later, the detectives


transported Baze from       jail to   an   interview    room    in the   sheriff' s office.   The State introduced the


transcript of the recorded interview. The following exchange took place immediately after Baze

consented to the interview being recorded:'

                   DETECTIVE RHOADES: ...                       And I know that we' ve done this once
         already ...    out at the house but since we' re back on tape or since we are on tape I
         am gonna advise you of your rights. You have the right to remain silent. Anything
         you say can be used against you in a court of law. You have the right at this time
         to talk to a lawyer and to have him present with you while you' re being questioned.
         If you cannot afford to hire a lawyer one will be appointed to represent you before
          any questioning if    you wish.         You can decide at anytime to exercise these rights,
         not answer any questions or make any statements. Do you understand those rights?
                   BAZE: Yes.




1 The ellipses in this extensive quote from the interview are only used where " uh" or " um" have
been removed from the transcript. No substantive information has been removed for the period of
time between when Baze was read his rights and when he waived them.


                                                                2
No. 44168 -3 -II



                    DETECTIVE RHOADES:...                      Want you to do me a favor sign right there
        for   me please....        And all you' re signing for here is that you' ve been advised of
        your rights and that you understand them. Kay?
                BAZE: Okay.
                    DETECTIVE RHOADES:                      Travis having been advised of your rights do
        you wish to answer questions?
                    BAZE: Well ...          to be honest      with you ...      like   as of right now ...   I' m not
        sure can you tell me like I I' ve got no problem telling you guys what what went
        down.
                    DETECTIVE RHOADES:                     Okay.
                    BAZE: How it went down.
                    DETECTIVE RHOADES:                     Okay.
                    BAZE:       And I' ve got I' ve got no problem being honest with you but did
        you am I do I need an attorney?
                    DETECTIVE RHOADES:                      That' s up to      you   kay.   You have the right to
        have an attorney here. And what I' ll tell you is you know if you want an attorney
        by all means that' s your right I' ve got no problems with that but we' re not gonna
        be able to do a statement tonight.
                BAZE: What does that mean for me?
                    DETECTIVE RHOADES:       What that means for you is I can pretty much
        guarantee you with great certainty that an attorney' s gonna tell you not to make any
        statements or not         to say anything to the            police.    That' s their blanket their blanket
        statement that' s the advice they give everybody.
                    BAZE: Um, hm.
                    DETECTIVE RHOADES:                      But the dilemma that puts that puts you in or
        that puts us in is we' ve gotta go forward with this case then with the evidence that
        we already have and statements of the other people involved. So I mean it' s up it' s
        up to you right now if you want to tell your story in your own words kay we can do
        that or if you' d like to talk to an attorney by all means you have that right okay.
        But the issue is the court is gonna appoint you an attorney I don' t I don' t appoint
        an attorney I' m not gonna be able to appoint an attorney tonight, there' s not gonna
        be an attorney who' s gonna come down here and talk to you and then let you talk
        to    us   tonight. That'    just that just doesn' t happen okay. Like I said an attorney' s
                                     s

        gonna       say   you   know don' t say anything. But at that point you know it' s a roll of
        the dice as far as you' re concerned at that point.
                    BAZE: Um.
                    DETECTIVE RHOADES:          I can tell you Travis the only thing that I' m
        interested in today is to get the truth. That' s all we want.
                BAZE: Okay well and I understand that ... obviously that' s your job.
                     DETECTIVE RHOADES: Sure.
                     BAZE:...      From from my          point of view        my my ...     okay maybe maybe you
        see you      know that'     s ...   that'   s what' s ...       I guess my concern is obviously I don' t
        want to be in jail.




                                                                    3
No. 44168 -3 -II



                   DETECTIVE RHOADES: Sure. Let me tell you this regardless of whether
        you make a statement tonight or whether you don' t make a statement tonight that' s
        not gonna change okay, right now you' re under arrest.
               BAZE: Um, hm.
               DETECTIVE RHOADES: You' re under arrest until you see a judge.

                   BAZE: Okay.
                   DETECTIVE RHOADES: So whether or not you make a statement tonight
        is gonna have no bearing on whether or not you' re in jail tonight okay. So if that' s
        what' s weighing on your mind regardless.
                BAZE: So what so what am I what am I under arrest for?
                   DETECTIVE RHOADES: At this point it' s assault. And we' re not sure of
        the degree right now okay. It depends on the degree of Sean' s injuries. And that' s
        all it comes down to okay.
                   DETECTIVE LEDFORD:          And maybe based on your statement and what
        you have to say may add to your involvement in this case or take away from your
        involvement but without your statement you put it in your own words we can' t we
        can' t nail it down as to what your involvement was so we gotta error on the side of
        caution as    to you   being   maybe more   involved than   what you are.   And that' s just

        for safety reasons so that' s kinda where we' re at.
                   BAZE:Okay ... I guess ... so so how ... if you if you believe that I didn' t
        do it but I was there then then and I' m not trying to be a smartass with you or
        nothing I' m just why why am I being charged for assault if you believe that I wasn' t
        there?
                   DETECTIVE RHOADES: Because.
                   BAZE: Or thought that I was there sorry.
                   DETECTIVE RHOADES: I believe that you were there and that you knew
        what was gonna happen before it happened. Okay.
                   BAZE: ( Inaudible)
                   DETECTIVE RHOADES:    And that' s the crux of it. Okay. It' s my belief
        that you and Stephan went there knowing what was gonna happen and knowing
        what   he intended to do. And that once it was done you two left together and that
        you didn' t contact the police and tell them what he did. Kay. That' s kinda the bare
        bones that' s what the law the way the law reads as far as your involvement. You' re
        not the one that I don' t believe you' re the one that swung the bat but you were there
        when it happened, you didn' t do anything to stop it. Kay and you didn' t do anything
        to report it. Which is all I know right now okay. I believe if there' s maybe some
        different circumstances that you' re aware of that we' re not or we' d love to hear
        them. Kay. And that' s why we give everybody the chance to come in here and tell
        their side of the story. Cause nobody can tell your story like you can.
                   BAZE: You sure?
                   DETECTIVE LEDFORD: Well for all you know for all intensive purposes
         sic] we give you the opportunity but you might want to say I want to say no
        Stephan didn' t do that I did that and that' s that' s why we' re letting you put this into
        your own words.
No. 44168 -3 -II



                   BAZE: I       understand    that ...     and I and that you know and I can' t I didn' t
        do that I ... .
                   DETECTIVE          LEDFORD:               And that' s why we' re giving you the
        opportunity to give the statement and that' s why we brought you over here
        somewhere where we just talk.
                   DETECTIVE RHOADES:        We' re not sitting in the jail where everybody
        looks through the fucking windows and everybody ( inaudible) and can see you
        sitting down there talking to a couple of police okay.
                   BAZE: So ...        I just ...   I I' m un I' m unsure of what to what to do is what
        my   problem      is   right now   because I don' t feel     you      know I    what' s ...   I don' t I don' t
        I I don' t want to nark [ sic] on anybody, I don' t want to be a part of something that
        I'm not, and I don' t want an assault charge on my record.
                   DETECTIVE LEDFORD: And we understand that I mean if if you need to
        take a few moments and gather your thoughts you know that' s fine. But I don' t we
        don' t   want    to    pressure you   into anything        all[,]    all we want to do is just put the
        honest truth down as it truly happened and not put any words in anybody' s mouth.
         inaudible) who didn' t do anything or did less than you know we don' t want to
        make it look like somebody did more than something we just want to be honest and
        transparent and you know what happened happened we can' t change it now, all we
        can do is try and explain it as accurately as possible.
                   DETECTIVE RHOADES:                     We' re just trying to do the right thing. That' s.
                   BAZE: I understand that ... .
                DETECTIVE RHOADES: And I' m not gonna sit here and pretend to say
        that I know how you feel cause I don' t know how you feel. I don' t know what it' s
        like to be sitting where you' re at but what I can tell you Travis is I' ve done this job
        a long time, he' s done this job a long time, I' ve sat with many young men in your
        situation okay, and one thing I can say from experience is people will tend to feel
        better after they' ve told their story. Kay. Whether it' s now, whether it' s later they
        tend to feel better. Cause I can tell just now here by looking at ya I can tell when
        we were out there at the house kay this has been eating at ya. And it' s not something
        that' s easy to walk around and pretend like it didn' t happen.
                   DETECTIVE LEDFORD:                     And you' re concerned you' re concerned for a
        couple of reasons, you know and that' s clear you' re you have a conscience you' re
        a normal person. You' re not some you know psychopath with no conscience.
                   BAZE:        Okay I and that' s true I I can agree with you there I do have a
        conscience and          I do know I do have        morals and        I do....   and I do care for for lots
        of   different    reasons   but ...   but I but I    and you        know I I ...    I don' t know I I don' t
        I' m I got a lot through going through my mind right now. I don' t I don' t ... .
                   DETECTIVE RHOADES:                     Well let' s talk it out, what is it what' s what' s
        bothering you the most?
               BAZE: What' s bothering me the                   most    is ...    that that I' m in custody.
               DETECTIVE RHOADES: Kay.
                   BAZE:...    That' s bothering me a lot. It' s bothering me that I don' t know .
             what' s what' s next. It' s bothering me that I don' t know if I' m you know do I I .


                                                               5
No. 44168 -3 -II



           it' s bothering me that I that I I never laid a finger on anybody and I and I' m
        sitting here for someone else' s shit. That' s bothering me a lot right now. And you
        know I'    m not ...    I' m not and I' m not sure what' s next that' s that' s.
                   DETECTIVE RHOADES:                What what do you mean what' s next as far as
        what happens tonight, what happens tomorrow?
                   BAZE: Yeah sure sure yeah sure ... .
                   DETECTIVE RHOADES:                Well I' ll tell ya what' s gonna happen tonight
        alright.    Tonight     you' re   gonna   be booked into jail ...     for   assault.   Tomorrow

              probably tomorrow morning after nine o' clock you' re gonna be taken over
        you' ve been through the court system before you' ve been arrested before.
                   BAZE: Sure.
               DETECTIVE RHOADES: Okay so you know how that game goes. You' re
        gonna be taken over there, you' re gonna have an ( inaudible) hearing the judge is
        gonna read a probable cause statement they' re gonna determine whether or not
        based on that report whether there' s probable cause to continue to hold you for the
        charge okay. At that point they' ll review your status ie [ sic] qualify for court
        appointed counsel or you make enough money that you' re gonna have to hire your
        own   attorney.        So you will have a chance to meet with an attorney tomorrow
        regardless    in the    courtroom whether      it' s ...   the one that you continue continues
        with your [ sic]   throughout the       Okay. So that' s what' s gonna happen in
                                               process.

        the immediate future that I know because that' s what happens on every case.
               BAZE: Okay.
                   DETECTIVE RHOADES: Alright. But what happens from there depends
        on you.      I mean it depends on the other people and it depends on the evidence.
        Okay.
                   DETECTIVE LEDFORD: But a lot of times these cases depend on peoples
         sic] involvement.
                   DETECTIVE RHODES: Um, hm.
                   DETECTIVE LEDFORD: And their honesty.
                   BAZE: Sure.
                   DETECTIVE LEDFORD:                And you know a judge or prosecutor can see
        that. If somebody wants to be honest or whether they want to be dishonest. And a
        lot of times that that has a baring [ sic] as to you know releasing somebody on bail
        or not releasing them on bail ( inaudible) release them on recognizance you know
        that sort of thing.
                   DETECTIVE RHOADES:                You know and I' ll be honest with ya I' ve got
        some questions I' ve got some questions as far as your involvement and to what
        degree.     Okay. There' s some things like I said I feel fairly certain about that I can
        I can walk into a courtroom and I can prove right now. Alright. But it' s the little
        intangibles that kinda the the why and the how much knowledge ... prior to and as
        to whose idea those are the things that I have questions about. And those are the

        things that I I' m hoping you can answer for me.




                                                             6
No. 44168 -3 - II



                    BAZE:       Okay ...     what ...   as   far         what you guys know of my
                                                                   as what ...

         involvement         what what ...    what degree am I what is that I mean what am I looking
         at what.

                    DETECTIVE RHOADES:                  I would love to sit and talk to you about that

         okay but we gotta make a decision here as to whether or not we' re gonna sit and
         talk.
                    BAZE: (     inaudible) Okay.
                    DETECTIVE RHOADES:                  Okay I I' ve got no problems sitting and telling
         you what I know. Alright. But we' ve come to the point of where we' re gonna have
         you have to make a decision okay as far as how you want this to go and what you
         want to do. We can' t make the decision for ya.
                    DETECTIVE LEDFORD:                   Travis ( inaudible) trick ya or make you say
         anything that you don' t want to say okay we' re not here to put words in your mouth
         and that' s what this opportunity is.
                    DETECTIVE LEDFORD:                  It' s not TV we' re not gonna have this great big
         Perry Mason moment where we back you into a corner and I jump up and down
         and scream scream calling you a liar and there' s no ah ha. A case like this is very
         straight forward. Either something happened or it didn' t happen.
                 BAZE: Okay well obviously it happened.
                 DETECTIVE RHOADES: Well yeah we know that okay we know that.
                    BAZE:...       I feel like I feel like I ...     I feel I don' t feel I' ve earned a charge
         out of this and I don' t feel like like I should.
                 DETECTIVE RHOADES: Well and I' d love to hear ya explain that.
                 DETECTIVE LEDFORD: That' s kinda what we gotta talk about with your
         consent though you know and we can have a two way conversation but we can' t do
         that unless you want to. It' s best you know it' s kind of a it' s kinda of a wall between
         us here at this point. Okay.
                 BAZE: ...    Okay. What what (inaudible).
                        DETECTIVE LEDFORD: Would you like to speak to us and continue this
         conversation?

                        BAZE: Sure.
               DETECTIVE RHOADES: Kay.
               DETECTIVE LEDFORD:           Okay. ( inaudible) initial here or sign here
         acknowledging that you wish to speak to us and we' re gonna go ahead and continue
         this.


Ex. 2,   at   2 -11 (    some capitalization omitted).        Baze' s written waiver of his Miranda rights was


admitted at the CrR 3. 5 hearing.

         After the hearing, the trial court concluded that Baze' s initial statement to the detectives

was an equivocal request for counsel and that the detectives then limited the colloquy clarifying




                                                               7
No. 44168 -3 -II



whether    Baze    wished   to   waive   his   rights.   And, the trial   court also concluded   that "[   t] he fact that


the defendant was told that there wouldn' t be an attorney available to be appointed that night did

not render   the   advisement of rights         ineffective."   Suppl. Clerk' s Papers ( SCP) at 176. The trial

court further concluded that Baze made a " clear, voluntary, knowing, and intelligent" waiver of

his right, and ruled Baze' s statements were admissible.


         A jury found Baze guilty of first degree assault, first degree robbery, first degree felony

murder, and second        degree    felony      murder.     The jury also returned special verdicts finding that

Baze or an accomplice was armed with a deadly weapon during the commission of all four crimes.

The trial court vacated the verdict for second degree felony murder predicated on the assault and

sentenced Baze to standard range sentences on the first degree assault, the first degree robbery,

and first degree felony murder. Baze appeals.

                                                         ANALYSIS


A.       ADMISSIBILITY OF STATEMENTS


         Baze argues that the trial court erred by admitting his statements because ( 1) the detectives'

statements after his equivocal request for an attorney violated his right to an attorney under

Miranda2 and ( 2) the detectives' statements after his equivocal request for an attorney made the.

waiver of his      Miranda   rights   involuntary.3 We hold that the trial court properly concluded that the



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

3 Baze also argues that the statements should be suppressed because the State violated CrR 3. 1( c)
by failing to take steps to immediately provide Baze with a way to contact an attorney. Baze never
argued that the State violated CrR 3. 1( c) at the trial court and is not permitted to raise the issue for
the   first time   on appeal.    RAP 2. 5(     a).   RAP 2. 5( a)( 3) allows an appellant to raise a manifest error

affecting a constitutional right for the first time on appeal. Under RAP 2. 5( a)( 3) the error must be
truly of constitutional dimension. State v. Kirkman, 159 Wn.2d 918, 926, 155 P. 3d 125 ( 2007).
CrR 3. 1 is not a rule of constitutional dimension. State v. Guzman -Cueller, 47 Wn. App. 326, 334,


                                                                8
No. 44168 -3 -II



detectives'     comments did not violate his right to an attorney under Miranda and that Baze' s

statements were voluntary. Therefore, we affirm.

          We review the trial court' s findings of fact from a CrR 3. 5 hearing to determine if they are

supported by substantial evidence. State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 ( 1997).

We review conclusions of law de novo to determine whether they are properly derived from the

findings of fact. State v. Pierce, 169 Wn. App. 533, 544, 280 P .3d 1158 ( citing State v. Grogan,

147 Wn.        App.   511,    516,   195 P. 3d 1017 ( 2008)),        review    denied, 175 Wn.2d 1025 ( 2012).


Unchallenged findings of fact are considered verities on appeal. Id. Here, there were no disputed

facts.4

          1.       Request for Counsel


          Baze   asserts     that his   statement "[   d] o I   need an   attorney ?" was an equivocal request for


counsel and limited the officers' questioning to whether the defendant would like an attorney.

Baze argues that his statements should have been suppressed because the officers did not limit


their questioning to whether he wanted an attorney. We disagree.

          Our Supreme Court articulated the rule for which Baze advocates in State v. Robtoy, 98

Wn.2d 30, 39 -40, 653 P.2d 284 ( 1982).            In Robtoy, our Supreme Court held:

            W] henever even an equivocal request for an attorney is made by a suspect during
          custodial interrogation, the scope of that interrogation is immediately narrowed to
          one subject and one only.        Further questioning thereafter must be limited to
          clarifying that request until it is clarified."




734 P. 2d 966 ( 1987).         Therefore, Baze' s claim that the detectives violated CrR 3. 1 is not an error
affecting a constitutional right and may not be raised for the first time on appeal.

4 Baze assigns error to two of the trial court' s findings of fact, but only in so far as they should be
considered legal conclusions.



                                                                9
No. 44168 -3 -II



Id.   at   39 ( quoting Thompson           v.   Wainwright, 601 F. 2d 768, 771 ( 5th Cir. 1979)) ( alteration in


original).



             But, in 1994, the Supreme Court of the United States decided Davis v. United States, 512

U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 ( 1994).                          In Davis, the Court determined that if a


defendant makes an equivocal request for counsel the police may continue questioning unless or

until      the defendant explicitly        and   unequivocally          requests an   attorney.   Id.   at   461.    In 2008, our


Supreme Court explicitly stated that Davis was the law under the Fifth Amendment and, thus, it

was the law when applying the Fifth Amendment and Miranda in Washington. State v. Radcliffe,

164 Wn.2d 900, 906 -07, 194 P. 3d 250 ( 2008).


             Baze argues that we should return to applying Robtoy because article 1, section 9 of the

Washington Constitution             provides      broader     protection     than the Fifth Amendment.              However, we


need not determine whether the Washington Constitution requires a return to the Robtoy rule

because under the facts of this case, the result would be the same regardless of whether we apply

Robtoy       or   Radcliffe.   See City of Seattle v. Williams, 128 Wn.2d 341, 347, 908 P.2d 359 ( 1995)

 There is a " well- established policy that if, in order to resolve an issue before us, it is not necessary

to    reach a constitutional question, an appellate court should                      decline to do     so. ").     Therefore, we


proceed assuming, not deciding, that the Robtoy rule applies.

             In   Robtoy,   the   suspect stated      that, "maybe" he        wanted a     lawyer.   98 Wn.2d         at   40.   The


officers      told the   suspect   that, if he      asked   for   an   attorney, the "   conversation ends right       here."    Id.


The     suspect paused, and         the   officer   told   him "[   d] o you understand that once you say you want an

attorney, you know, we have to stop talking. It' s going to be difficult to change and go back and
forth."      Id. The suspect continued to pause and seemed " to have difficulty starting to talk" so the



                                                                       10
No. 44168 -3 -II



officer told him he was going to start writing out questions and if the suspect wanted to stop

answering        questions or   to   speak   to   an   attorney he       should   let the   officer   know. Id.    at   40 -41.   The


suspect assented. Id. at 41.


           The court determined that " rainy questioning after the equivocal assertion of the right to

counsel must       be strictly   confined     to clarifying the          suspect' s request."     Id.   at   39. Under this rule,


the court held that the officer' s questions were properly limited to clarifying the suspect' s

equivocal request and whether the suspect wanted to continue speaking to the police. Specifically,

the court explained:



           After Robtoy made his equivocal statement regarding an attorney, Detective Dean
           sought clarification of         Robtoy' s    words.       There was no further interrogation about
           any offense until Dean was satisfied Robtoy had no present desire to have the
           presence of an attorney. Further, Robtoy was reminded by Detective Dean that he
           would cease questioning immediately if Robtoy wanted to remain silent or speak
           with an attorney.


Id. at 41.


           Here, the detectives       complied with           the   requirements of         Robtoy. When Baze asked if he

needed an attorney, the detectives told him that he had to be the one to make that decision. In fact,

the detectives reminded him multiple times that he could decide to have an attorney if he wished

and   it   was   his decision to     make.        And, the detectives were clear that if Baze wished to have an


attorney, they would stop questioning him.

           Moreover,     during      the    course      of   the    exchange,      the   detectives     did   not " question"      or



 interrogate" Baze.        Rather, they answered his questions when he was attempting to clarify the

current situation. There was no substantive discussion until Baze affirmatively told them he would

continue speaking with them and signed the waiver of his rights. Prior to Baze signing the waiver,

the   detectives     stopped    him from making              substantive statements and reminded                him that "[ t]hat' s



                                                                    11
No. 44168 -3 -II


kinda what we gotta talk about with your consent though you know and we can have a two way

conversation       but   we can'     t do that      unless you want        to.      It' s best you know it' s kind of a it' s kinda


of a wall       between   us     here   at   this   point."      Ex. 2   at   11.     Because the detectives did not continue


questioning Baze or take a statement regarding the assault until after Baze affirmatively waived
                                                                                                                            5
his   rights,   the detectives       complied with         the   more restrictive rule articulated           in   Robtoy.

          Therefore, as far as the effect of Baze' s equivocal request, Baze' s statements would be

admissible under either the Radcliffe rule, which does not restrict the scope of the detectives'

questioning after an equivocal request for counsel, or the Robtoy rule, which restricts the scope of

the detectives'      questioning to clarifying the                  equivocal request.              The trial court did not err in


admitting Baze' s statements.

          2.        Voluntariness of Statements


          Baze also argues that his waiver of his right to an attorney was involuntary because the

detectives contradicted the Miranda warnings and improperly urged him to give a statement

without an attorney present. We disagree.

          We     examine       the   totality   of   the   circumstances "`           to ascertain whether the accused in fact


knowingly and voluntarily decided to forgo his rights to remain silent and to have the assistance

of counsel. "'      State   v.   Unga, 165 Wn.2d 95, 100, 196 P. 3d 645 ( 2008) (                          quoting Fare v. Michael

C., 442 U. S. 707, 724 -25, 99 S. Ct. 2560, 61 L. Ed. 2d 197 ( 1979)).                                     Because coercive police




5 To the extent that Baze argues that the detectives' statements violated Robtoy because they
misrepresented the availability of an attorney and undermined the role of having an attorney
present,    he is incorrect.         Robtoy is       concerned with           the    overall content of    the    exchange— whether

the    questioning is limited           to clarifying the           request         for   an   attorney.   Whether the detectives'
statements were improper or misleading goes to whether the detectives' statements rendered
Baze' s waiver involuntary. It has no bearing on whether the restrictions in Robtoy were violated.


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activity is necessary to        render a confession          involuntary, " both the conduct of law enforcement

officers in exerting pressure on the defendant to confess and the defendant' s ability to resist the

pressure are   important."      Id. at 101. To determine whether the totality of the circumstances renders

a confession involuntary we consider:

          T] he "   crucial   element        of police    coercion;"      the length of the interrogation; its
         location; its continuity; the defendant' s maturity, education, physical condition, and
         mental health; and whether the police advised the defendant of the rights to remain
         silent and to have counsel present during custodial interrogation.

Id. (quoting Withrow v. Williams, 507 U.S. 680, 693 -94, 113 S. Ct. 1745, 123 L. Ed. 2d 407 ( 1993).

The   ultimate question       is "'   whether [ the interrogating officer' s] statements were so manipulative

or coercive that they deprived [ the suspect] of his ability to make an unconstrained, autonomous

decision to    confess. '      Id.    at    102 ( quoting Miller     v.   Fenton, 796 F.2d 598, 605 ( 3d Cir.),   cert.




denied, 479 U.S. 989 ( 1986)).              A   statement   is voluntary "` so   long as that decision is a product of

the   suspect' s own   balancing of competing             considerations. '     Id. (quoting Miller, 796 F.2d at 605).

         As an initial matter, the overall context of the interview does not support the conclusion

that Baze'   s waiver of      his   rights was        involuntary. The .time between     Baze asking, " Do I need an


attorney ?" and     making the decision to waive his rights is approximately 15 minutes. There are no

indications or factual findings that would raise concerns based on Baze' s maturity, education, or

health. And, Baze was not only advised of his rights twice, but he signed a document affirmatively

stating that he     understood        his   rights.    Therefore, the ultimate question is whether the detectives'


statements were so manipulative or coercive as to overcome Baze' s ability to make an

 unconstrained, autonomous decision" regarding whether to waive his rights and give a statement

to the police. Id.




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         Baze cites to very specific statements that the detectives made to argue that his confession

was    involuntary. But      we   do   not   look   at particular statements     in isolation. Id. at 105. Because we


look at the totality of the circumstances, we must look at the detectives' statements within the

context of the conversation as a whole and then determine whether the detectives' conduct was so

coercive as   to    render   Baze'     s   decision to    give a statement    involuntary. Here, the totality of the

circumstances does not support the conclusion that the statement was involuntary because ( 1) Baze

affirmatively   engaged with           the detectives      by   repeatedly asking the detectives      questions, (   2) the


detectives continued to tell Baze that it was his decision regarding whether to waive his rights, and

 3) Baze' s fundamental concern was having to remain in jail and the detectives were clear that

Baze was going to remain in jail regardless of whether he gave a statement.

         Baze claims that the detectives overcame his will to make an autonomous decision because

they   misrepresented        the availability       and   desirability   of an   attorney.   Baze appears to base his


argument on a misunderstanding of the case law regarding what constitutes an improper

misrepresentation of the availability of an attorney. He relies on State v. Tetzlaff, 75 Wn.2d 649,

453 P. 2d 638 ( 1969),        but Tetzlaff does not support his assertion that the detectives' explanation

regarding   when an     attorney       would    be appointed       rendered   his   statement   involuntary. In Tetzlaff,

the suspect was informed that, if he was indigent, an attorney would be appointed by the court if

he   was charged.      75 Wn.2d        at   650. Our Supreme Court held that the warnings were insufficient


because they informed the suspect that his right to an attorney was predicated on being charged

with a crime. Tetzlaff, 75 Wn. App. at 652.

          Later, Division Three of this court distinguished the holding in Tetzlaff. In State v. Teller,

the defendant claimed that the warnings read to her were insufficient because they informed her



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that she had the right to have an attorney appointed by the court. 72 Wn. App. 49, 51, 863 P.2d

590 ( 1993),   review       denied, 123 Wn.2d 1029 ( 1994).                    Prior to questioning, the suspect was informed

that she was " entitled to have [ an attorney] appointed for you by the court without cost to you and

to have him     or   her    present         before or   during    questioning         or   the making   of   any   statement."   Teller,


72 Wn.    App.   at   51.    The court noted that the flaw in the warning provided in Tetzlaffwas not that

the warnings stated that the attorney would be appointed by the court, but rather that, the warning

advised the suspect that the right to an attorney was conditioned on being charged. Id. at 53.

          Here, the detectives did not make an improper representation regarding the availability of

an attorney. The warnings that were read to Baze properly informed Baze that he had the right to

an    attorney before       or   during       any    statement.        Baze was reminded multiple times that he had the


right   to request    an    attorney.         The detectives were clear that the right to an attorney had attached

and    Baze   could assert           that   right   if he   wished.     Unlike Tetzlaff, the detectives never misled Baze

into believing that the right to have an attorney present was conditioned on some future event.

Rather, like Teller, Baze was properly informed that he could have an attorney present with him

before   and   during       questioning.            The detectives did not improperly mislead Baze about his rights

to have an attorney present.

          Baze also argues that the detectives misrepresented the desirability of requesting a lawyer

                                     lawyer                 tell him          to                         that            Although ill -
by telling Baze       that       a             would                   not         make a statement             night.




advised, the statement was not coercive. When Rhoades made the statement he was speaking from

his   own experience,            he    was not       giving Baze legal             advice.   And, there were no direct adverse


consequences that would result from Baze' s decision to request an attorney. The detectives were

clear that Baze was going to stay in jail overnight regardless of whether he gave a statement. The



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detectives did not make any promises or threats based on whether Baze gave a statement that night.

Because nothing was conditioned on Baze making a statement that night, the detectives' statement

could not be considered so coercive it would override Baze' s ability to make an autonomous

decision about whether to waive his rights and give a statement.


         Moreover, the detectives told Baze that they already determined that he was involved in

the   assault.   They noted that sometimes judges and prosecutors took a suspect' s honesty under

consideration when setting bail, but they did not promise that Baze would get bail or reduced

charges if he made a statement. The detectives told Baze the only benefit of making a statement

would be getting the story in his own words and making him feel better. Detectives are permitted

to use " psychological ploys such as playing on the suspect' s sympathies, saying that honesty is the

best policy for a person hoping for leniency, or telling a suspect that he could help himself by

cooperating"     without    rendering   a waiver of rights       involuntary. Unga, 165 Wn.2d at 102 ( citing

Miller, 796 F. 2d at 605).


          Looking    at    the   interview    as   a   whole,    the detectives may have engaged in some

psychological ploys, but they did not engage in coercion. Because police coercion is necessary to

render a statement involuntary, the trial court did not err in concluding that Baze' s statement was

voluntary and admissible. Id. at 100 -01 ( quoting Colorado v. Connelly, 479 U.S. 157, 167, 107 S.

Ct. 515, 93 L. Ed. 2d 473 ( 1986)).


B.        MERGER/ DOUBLE JEOPARDY


          Baze argues that we must vacate both his first degree assault and first degree robbery

convictions      because   they   violate   double     jeopardy. Baze appears to argue that the first degree

assault conviction violates        double    jeopardy because it     merges with   the first degree robbery.   He




                                                            16
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also argues that his first degree robbery conviction violates double jeopardy because it merges

with the first degree felony murder conviction. Both arguments fail, and we affirm his convictions.

        The double jeopardy clauses of the United States and Washington Constitutions prohibit

multiple punishments for the same offense. See e. g. State v. Adel, 136 Wn.2d 629, 632, 965 P. 2d

1072 ( 1998).   The merger doctrine is a tool of statutory construction used to determine whether

the legislature intended       multiple punishments    to apply to    particular offenses.    State v. Saunders,


120 Wn.     App.    800, 820, 86 P. 3d 232 ( 2004).      Whether the merger doctrine implicates double


jeopardy is   a question of     law,   which we review   de   novo.    State v. Williams, 131 Wn. App. 488,

498, 128 P. 3d 98 ( 2006).


        Baze' s claim that convictions for first degree assault and first degree robbery violate double

jeopardy has already been rejected by our Supreme Court. State v. Freeman, 153 Wn.2d 765, 778,

780 -81, 108 P. 3d 753 ( 2005) (       holding that the legislature intended to punish first degree assault

and first degree robbery separately, thus, convictions for both first degree assault and first degree

robbery do    not   violate    double   jeopardy). Therefore, Baze' s first degree assault conviction is

affirmed.




        Baze also argues that his first degree robbery conviction merges with the first degree felony

murder conviction. Baze relies on In re Personal Restraint ofFrancis, 170 Wn.2d 517, 242 P. 3d

866 ( 2010), and claims that Francis is dispositive. Baze is incorrect.


        Baze    relies   on    one   sentence   in Francis, " The      killing ` had no purpose outside of

accomplishing the robbery' and therefore the attempted robbery would merge into the felony

murder."    170 Wn.2d     at   527 ( quoting Williams, 131 Wn.        App.   at   499). But both Francis and the


case to which it cites, Williams, involved the merger of attempted robbery and felony murder.



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No. 44168 -3 -II



Here, Baze    was convicted of a completed             first degree robbery          and   felony   murder.   Accordingly,

cases addressing double jeopardy in the context of completed robbery and felony murder, such as

Saunders, 120 Wn. App. 800, are applicable, not cases addressing attempted robbery and felony

murder.




         In Saunders, the defendants raped and killed the victim. They also took her watch. Id. at

806 -08. A jury found the defendant guilty of felony murder, first degree rape, first degree robbery,

and   first degree   kidnapping.      Id. at 808.    The defendant argued that his robbery conviction should

merge with    the    felony   murder conviction.        Id.   at      820.   Saunders noted that a previous case had


declined to merge a robbery conviction with a felony murder conviction because the robbery was

separate and distinct from the murder. Id. at 822 ( citing State v. Peyton, 29 Wn. App. 701, 720,

630 P. 2d 1362 ( 1981)).       Then the court in Saunders stated:


                   Here, although the robbery and murder may have occurred close in time and
         place,   the   other [   State   v.   Johnson, 92 Wn.2d 671, 600 P. 2d 202 ( 1979)] factors
         indicate that merger of these two offenses is unwarranted. The record shows that
          the defendants] committed the robbery after the murder and that they did not
          commit     the robbery to facilitate the         murder.           Further, [ the victim] sustained an

          independent injury from the robbery, the theft of her watch. Thus, the robbery was
          separate and distinct 'from the murder.

Id. at 822 -23.


          Following the reasoning of Saunders, Baze' s robbery and murder convictions are also

separate and      distinct. First, the robbery       and   the   murder       had independent    purposes.    Churchill hit


Morrow     as revenge      for Morrow stealing from him.                     The purpose of the robbery was to take

Morrow' s money. Second, the robbery resulted in an injury independent from the hit on the head

that lead to Morrow' s death —Churchill took the $ 45 Morrow                          was    carrying.   Accordingly, the

robbery and felony murder convictions are separate and do not merge.



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        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.




 We concur:




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