                                                                  FILED
                                                               JULY 13, 2017
                                                       In the Office of the Clerk of Court
                                                      WA State Court of Appeals, Division Ill




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

STATE OF WASHINGTON,                          )         No. 34094-5-111
                                              )
                      Petitioner,             )
                                              )
              V.                              )         UNPUBLISHED OPINION
                                              )
ROGELIO NUNEZ,                                )
                                              )
                      Respondent.             )

      LAWRENCE-BERREY, A.C.J. -        We granted the State of Washington's motion for

discretionary review of the trial court's order suppressing Rogelio Nunez's confessions to

multiple crimes. The trial court determined that Mr. Nunez was not properly advised of

his Miranda 1 warnings, and that his confessions occurred while in custody.

      The State argues the trial court erred by refusing to reopen testimony in a CrR 3.5

hearing after closing comments began but before the trial court issued its oral ruling. We

conclude the trial court did not abuse its discretion when it refused to reopen testimony.

      The State also argues the trial court erred by determining that Mr. Nunez was in



       1 Miranda   v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 34094-5-III
State v. Nunez


custody when he confessed to several crimes. We conclude that Mr. Nunez was not in

custody until after he confessed to the first crime. For this reason, only those statements

he made after his first confession should be suppressed. We therefore affirm in part, and

reverse in part, the trial court's suppression order.

                                            FACTS

        The State charged Mr. Nunez with four counts of child molestation. The facts set

forth below arise out of a CrR 3.5 hearing, where only two law enforcement officers

testified.

        On the morning of September 15, 2015, Detective Jacinto Nunez met with Mr.

Nunez at his home to investigate allegations that Mr. Nunez had molested two young

girls. Mr. Nunez said he was willing to speak with the detective, but preferred to work

that day and then speak with the detective at the sheriff's office. Detective Nunez agreed

to this. Mr. Nunez also said he preferred to discuss the topic in Spanish, his preferred

language.

       Detective Nunez then arranged to have Deputy Ruben Bayona present during the

interview to help build rapport because Deputy Bayona had more experience with child

sex cases and spoke better Spanish.




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No. 34094-5-III
State v. Nunez


       As promised, Mr. Nunez came to the sheriffs office after he finished work that

day. One or both officers confirmed that Mr. Nunez drove himself to the sheriffs office,

was not handcuffed before or during the interview, was not under arrest, and was free to

leave whenever he wished.

       The first part of the interview was not recorded because the officers were building

rapport with Mr. Nunez. After about 10 minutes, Detective Nunez advised Mr. Nunez of

his rights in Spanish by reading from a Spanish advisement of rights form. The form

listed the rights numerically, in paragraphs one through five. Detective Nunez testified he

read to Mr. Nunez the rights in paragraphs one, three, four, and five. He explained that

the right in paragraph two was for juveniles only, and when Mr. Nunez answered he was

47 years old, he skipped that right. The first sentence in paragraph two contains the

familiar warning that anything you say can be used against you in a court of law. 2

       Mr. Nunez initialed the form twice, once to confirm that the above rights were read

to him and that he understood them, and once to waive his rights. Within two or three

minutes, Mr. Nunez confessed. He first confessed to groping J.A over her clothes when


       2
         On the form, Detective Nunez crossed out only the second sentence of paragraph
two. This created an issue of fact whether Detective Nunez read Mr. Nunez the familiar
warning contained in the first sentence of that paragraph. Because the trial court found
that the detective did not read that sentence to Mr. Nunez, and this finding is supported by
substantial evidence, we present the facts in this manner.          ·

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No. 34094-5-III
State v. Nunez


she was a young girl. He then confessed to groping D.N. when she was young and having

intercourse with her when she was older.

         During cross-examination of Detective Nunez, Mr. Nunez asked whether the

purpose of the interview was to coerce a confession. Detective Nunez answered, "Yes."

Clerk's Papers (CP) at 51. Despite this answer, the testimony from one or both officers

was that the interview was focused on building rapport, Mr. Nunez was "pretty cheerful,"

and Mr. Nunez's confession was almost immediate after he was advised of his rights. CP

at 30.

         Both sides gave brief closing arguments at the conclusion of the hearing. The

State expressed surprise when Mr. Nunez argued the detective failed to advise him of one

of his warnings, and the detective agreed the purpose of the interview was to coerce a

confession. The State offered to recall Detective Nunez to clarify those issues, but the

trial court exercised its discretion and ruled that the testimony was closed.

         The trial court found that Mr. Nunez was not adequately advised of his warnings

and that the purpose of the interview was to coerce a confession. 3 Based on these

findings, the trial court ruled that Mr. Nunez's confession must be suppressed.


         3
         The detective's unexpressed purpose is of no relevance. See State v. Solomon,
114 Wn. App. 781, 790, 60 P.3d 1215 (2002) (An officer's unexpressed intentions are
irrelevant to the question of whether the suspect was in custody.).

                                              4
No. 34094-5-III
State v. Nunez


       The State brought a motion for reconsideration. In its motion, the State attached a

sworn statement from Detective Nunez. Among other arguments, the State argued that

only custodial statements are subject to suppression under Miranda, and the evidence

established as a matter of law that Mr. Nunez was not in custody. The trial court declined

to consider the additional evidence, considered the State's custody argument, and found

that because the confession was obtained in an interrogation room at the sheriffs office,

Mr. Nunez's statement was custodial. 4 The trial court denied reconsideration of its earlier

CrR 3.5 ruling. The State moved for discretionary review, and we granted the State's

motion.

                                  LAW AND ANALYSIS

       A.     THE TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN IT REFUSED TO
              REOPEN THE TESTIMONY


       A trial court has discretion to decline to reopen a hearing, and reversal is warranted

only on a showing of an abuse of discretion. Estes v. Hopp, 73 Wn.2d 263, 270, 483 P.2d

205 (1968) . .Discretion is abused when it is exercised on untenable grounds for untenable

reasons. State v. Sanchez, 60 Wn. App. 687, 696, 806 P.2d 782 (1991). "Consideration


       4
           Mr. Nunez argues that the State's failure to raise the argument that he was not in
custody is a waiver of that argument. But the State made this argument in its
reconsideration motion. Because the State made this argument and the trial court ruled on
it, the State did not waive its argument that Mr. Nunez was not in custody.

                                              5
No. 34094-5-III
State v. Nunez


should be given to whether the law on point at the time was unclear or ambiguous, as well

as to whether new evidence came to light after the proceedings closed." United States v.

Coward, 296 F .3d 176, 182 (3rd Cir. 2002).

       Here, the law on the admissibility of confessions is clear, and the State did not

have any new evidence that came to light after the hearing. The trial court explained its

basis for refusing the State's request to reopen: "If we don't have finality, then the

meaning of the hearing is that we continue to conduct it until the State wins. That's not

the purpose of the hearing." Report of Proceedings (RP) at 15.

       The State argues the trial court improperly applied the "finality principle" when it

refused to reopen, and because this legal principle was improperly applied, our review is

de novo. Appellant's Br. at 12. The State does not explain what this "finality principle"

is, but cites cases to the effect that collateral estoppel and res judicata are inapplicable

until a final judgment is entered. We reject the State's argument because the trial court's

reasoning had nothing to do with the doctrines of res judicata or collateral estoppel.

       The State also argues it was denied due process because it did not know that Mr.

Nunez would argue that his advisement of rights was deficient or that his confession was

coerced. We reject this argument because neither party could have anticipated these

arguments until Detective Nunez testified to these points. The State was not denied due


                                               6
No. 34094-5-III
State v. Nunez


process. Had it listened to Mr. Nunez's questions and its own witness's answers, it could

have rectified these issues on redirect.

       We conclude the trial court gave tenable reasons for not allowing the State to

reopen. We find no abuse of discretion.

       8.     MR. NUNEZ WAS NOT IN CUSTODY UNTIL AFTER HE CONFESSED TO THE FIRST
              CRIME

              1.      Standard of review

       When we review an order granting or denying suppression under CrR 3.5, we

determine "whether substantial evidence supports the challenged findings of fact and

whether the findings of fact support the conclusions of law." State v. Garvin, 166 Wn.2d

242, 249, 207 P.3d 1266 (2009). Evidence is substantial when it is sufficient'" to

persuade a fair-minded person of the truth of the stated premise.'" Id. (quoting State v.

Reid, 98 Wn. App. 152, 156,988 P.2d 1038 (1999)). Unchallenged findings of fact are

verities on appeal. State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997). This

court reviews the trial court's conclusions of law from a suppression hearing de novo.

State v. Campbell, 166 Wn. App. 464,469, 272 P.3d 859 (2011).

              2.      Custody, for Miranda purposes, is determined by considering the
                      totality of the circumstances, and asking whether a reasonable
                      person in the suspect's position would feel that his or her freedom is
                      curtailed to the degree associated with a formal arrest


                                              7
 No. 34094-5-III
 State v. Nunez


        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." To

 counteract the inherent compulsion of custodial interrogation, police must administer

 Miranda warnings. State v. l.B., 187 Wn. App. 315,320,348 P.3d 1250 (2015).

 Miranda requires that the defendant "be warned prior to any questioning that he has the

 right to remain silent, that anything he says can be used against him in a court of law, that

 he has the right to the presence of an attorney, and that if he cannot afford an attorney one

 will be appointed for him prior to any questioning if he so desires." Miranda, 384 U.S. at

 479. Police must give Miranda warnings when a suspect is subject to ( 1) custodial

· (2) interrogation (3) by an agent of the state. State v. Heritage, 152 Wn.2d 210,214, 95

 P.3d 345 (2004). Without Miranda warnings, this court presumes a suspect's statements

 during custodial interrogation are involuntary and are therefore inadmissible. Id.

        The sole issue here is custody. With respect to custody, the facts support the trial

 court's finding that Mr. Nunez gave his confessions in an interrogation room at the

 sheriffs office. But such a finding does not necessarily support the legal conclusion that

 Mr. Nunez was in custody.

        Interviews at police stations are subject to heightened scrutiny. United States v.

 Jacobs, 431 F.3d 99, 105 (3rd Cir. 2005). Nevertheless, the fact that an interview is



                                               8
No. 34094-5-III
State v. Nunez


conducted at a police station is itself insufficient to establish that the suspect was in police

custody.

       [P]olice officers are not required to administer Miranda warnings to
       everyone whom they question. Nor is the requirement of warnings to be
       imposed simply because the questioning takes place in the station house, or
       because the questioned person is one whom the police suspect. Miranda
       warnings are required only where there has been such a restriction on a
       person's freedom as to render him "in custody." It was that sort of coercive
       environment to which Miranda by its terms was made applicable, and to
       which it is limited.

Oregon v. Mathiason, 429 U.S. 492,495, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977); see also

California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983)

(statement not custodial where suspect was told he was not under arrest and voluntarily

accompanied police to station to discuss murder).

       When determining whether a suspect is in custody for purposes of Miranda, we

look at the totality of the circumstances, and ask whether a reasonable person in the

suspect' s position would believe his or her freedom was curtailed to the degree associated

with a formal arrest. State v. Rosas-Miranda, 176 Wn. App. 773, 779, 309 P.3d 728

(2013). In the context of a police interview, a related inquiry asks whether a reasonable

suspect would feel free to terminate the interview and leave. State v. Lorenz, 152 Wn.2d

22, 38, 93 P.3d 133 (2004); see also State v. Grogan, 147 Wn. App. 511, 518, 195 P.3d

1017 (2008) (hour-long polygraph and subsequent interview, both at police station, held

                                               9
No. 34094-5-III
State v. Nunez


to be noncustodial largely because suspect was permitted to leave interview when he

asked to leave), review granted, 168 Wn.2d 1039, 234 P.3d 169 (2010).

       Here, Mr. Nunez was a suspect in a child molestation investigation. Detective

Nunez asked to speak with Mr. Nunez about allegations made against him. Any concern

that Mr. Nunez might have had concerning his freedom was allayed when the detective

permitted him to work that day and discuss the allegations after work. After work, Mr.

Nunez went to the sheriff's office, at the time he chose, to discuss the allegations. Once

he arrived, he was not placed under arrest or handcuffed. Instead, he was led to a private

room where the first IO minutes were spent building rapport between him and two

officers. One of the officers described Mr. Nunez as quite cheerful during this process.

Once rapport was established, the officers determined it was time to ask questions

concerning the allegations. But before asking these questions, the officers sought to

advise Mr. Nunez of his Miranda warnings so to dispel the inherent compulsion of

answering their questions. All but one of his rights were read to him. The reading of

these rights was for Mr. Nunez's benefit and in no way caused the nature of his custody to

change. He quickly began confessing to crimes.

      At the point in time when Mr. Nunez confessed to the first crime, a reasonable

suspect in his position no longer would believe he was free to leave the interview. It was


                                            10
No. 34094-5-111
State v. Nunez


at this time that the interview turned from noncustodial to custodial. Because Mr. Nunez

was not properly advised of his Miranda warnings before this time, all subsequent

statements after his first confession must be suppressed. State v. Daniels, 160 Wn.2d

256, 267, 156 P.3d 905 (2007).

      Affirmed in part, reversed in part, and remanded.

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

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

RCW 2.06.040.


                                         La~nce-Berrey: A.CJ.            (

WE CONCUR:
                                                                              j




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