                                                                         FILED
                                                                      MARCH 14, 2017
                                                                 In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III

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

STATE OF WASHINGTON,                           )
                                               )        No. 33953-0-111
                       Respondent,             )
                                               )
       v.                                      )
                                               )
DESARAE M. DAWSON,                             )        UNPUBLISHED OPINION
                                               )
                       Appellant.              )

       SIDDOWAY, J. -At issue in this appeal of Desarae Dawson's conviction for

possession of a stolen motor vehicle is the question of what warnings are essential, before

law enforcement questions an individual in custody, in order to comply with Miranda v.

Arizona. 1 Ms. Dawson challenges the failure of the first officer who questioned her to

warn Ms. Dawson of her right to stop answering questions at any time and speak with a

lawyer. She contends that her statements to that officer were not knowing and voluntary

and that her statements to a detective the next day were tainted by the prior day's

violation of her rights.

       The warning Ms. Dawson complains was omitted was not constitutionally

required, so the trial court's findings and conclusions in denying her motion to suppress

were supported by the evidence and the law. We affirm.



       1
           384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 33953-0-111
State v. Dawson


                          FACTS AND PROCEDURAL BACKGROUND

       A 2001 black Subaru Legacy that had been reported stolen was spotted on the

streets of Spokane and watched by officers for over an hour before Desarae Dawson

approached the Subaru, entered it, and drove off. Ms. Dawson was stopped and placed

under arrest. Officer Stephanie Kennedy recited to Ms. Dawson her Miranda rights.

Officer Kennedy had been a police officer since January 1999 and did not use a card

preprinted with Miranda warnings, relying instead on her memory. A witness, Officer

Phillips, 2 was present to confirm that Ms. Dawson acknowledged and understood her

rights and agreed to waive them before interrogation began.

       In responding to Officer Kennedy's questions, Ms. Dawson initially said her sister

had purchased the car on Craigslist, but would not show Officer Kennedy the Craigslist

listing or provide the officer with her sister's phone number. Ms. Dawson eventually

admitted to Officer Kennedy that she knew the car was stolen, although she added "this is

the only stolen car I've been in in the last month." Report of Proceedings (RP) at 62. 3

       Detective Craig Wendt was assigned to the case and visited Ms. Dawson in jail the

next day to question her about the stolen car and other matters. Before their discussion,

he read Ms. Dawson Miranda warnings from a preprinted card, which Ms. Dawson

signed to signify that she understood her rights and wanted to waive them.


       2
           Officer Phillips' s first name does not appear in the record.
       3
           All citations to the Report of Proceedings refer to RP (Nov. 9, 2015).

                                               2
No. 33953-0-111
State v. Dawson


       During Detective Wendt's questioning, Ms. Dawson acknowledged having been

read her Miranda rights by Officer Kennedy, affirmed she had told Officer Kennedy the

Craigslist story, and affirmed she had admitted to Officer Kennedy that she knew the car

was stolen but that she was driving it "because she needed a ride." RP at 34. At first, she

stated to Detective Wendt that she did not know who had stolen the car but later she told

him that she did not want to say who had stolen the car.

       After the State charged Ms. Dawson with possession of a stolen motor vehicle, the

trial court conducted a CrR 3.5 hearing to determine whether the incriminating statements

Ms. Dawson had made to Officer Kennedy and Detective Wendt should be suppressed.

      During direct examination in the CrR 3.5 hearing, Officer Kennedy was asked if

she could tell those in attendance "off the top of your head" what a custodial detainee's

rights were. RP at 53. She answered, "Absolutely," and demonstrated:

      I explained to her you have the right to remain silent. You have the right to
      an attorney. If you cannot afford an attorney, one will be appointed for you
      before any questioning if you so desire.

Id.

      When it came time for the defense to cross-examine Officer Kennedy, she

volunteered that she misspoke on direct examination and left something out when reciting

the Miranda warnings. She explained that she is usually looking at the suspect rather

than a lawyer when she recites the warnings, and the courtroom setting made her nervous.

Correcting herself, she testified that she would have told Ms. Dawson instead:

                                             3
No. 33953-0-111
State v. Dawson


       [A ]t this time you have the right to remain silent. Anything you say can
       and will be used against you in the court of law. You have the right to an
       attorney. If you cannot afford one, one will be appointed for you without
       cost before any questioning if you so desire. Do you understand these
       rights as I've read them to you[?]

RP at 65.

       At the conclusion of the hearing, the trial court orally ruled that the statements

made to Officer Kennedy and Detective Wendt were admissible. As to Officer

Kennedy's memory lapse, the trial court complimented defense counsel on his advocacy,

but stated:

       While it might be good practice for an officer to use a preprinted rights card
       each time, my experience is that law enforcement officers do not. The
       crucial issue is that they advise the individual of those rights before
       inquiring and Officer Kennedy testified she did advise Ms. Dawson of her
       rights and that Ms. Dawson knowingly, intelligently and voluntarily waived
       her right to an attorney and waived the right to remain silent and chose
       voluntarily to speak.
               So although, again, the Court would prefer everybody to have a
       preprinted rights card signed, it makes things less perplexing for me, it's
       not required. The law doesn't require it. The law requires that somebody
       be read their rights and that's the evidence before the Court. I'm satisfied
       that everything that was testified to by Officer Kennedy in terms of Ms.
       Dawson's statements to her in the backseat of a law enforcement car on
       December 9, 2014, are admissible.

RP at 77-78.

       At trial, Ms. Dawson testified in her own defense and denied telling Officer

Kennedy or Detective Wendt that she knew the vehicle was stolen. The jury nonetheless

found her guilty. The trial court sentenced her to 53 months' confinement. She appeals.



                                              4
No. 33953-0-111
State v. Dawson


                                         ANALYSIS

       Ms. Dawson challenges the denial of her motion to suppress, assigning error to the

trial court's third finding of fact, that "[t]he arresting officer, Stephanie Kennedy,

Mirandized Ms. Dawson of her 5th Amendment rights from memory," and to its sixth

conclusion oflaw, that "Ms. Dawson was given her Miranda rights when she spoke to

Officer Kennedy and she waived her 5th Amendment rights." Clerk's Papers (CP) at 87-

88. She contends that five warnings are required by Miranda, one being that a suspect

can stop answering questions at any time until able to speak with a lawyer. She argues

that Officer Kennedy's omission of that right, twice, in reciting warnings at the

suppression hearing is compelling evidence that the officer did not impart the fifth

warning to Ms. Dawson. She argues that because the warnings were incomplete, any

waiver of her rights was not knowing or voluntary, and any statements she made should

have been suppressed at trial. She argues that despite Detective Wendt's administration

of a proper warning, any statements he obtained were not sufficiently attenuated from the

coercive interrogation by Offic·er Kennedy to be admissible.

       When reviewing denial of a motion to suppress a confession, we examine

"whether substantial evidence supports the challenged findings and whether the findings

of fact support the conclusions oflaw." State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d

1266 (2009). Evidence is considered substantial when it is sufficient "'to persuade a

fair-minded person of the truth of the stated premise."' Id. (quoting State v. Reid, 98

                                              5
No. 33953-0-III
State v. Dawson


Wn. App. 152, 156, 988 P.2d 1038 (1999). We review the trial court's conclusions of

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

       The Fifth Amendment to the United States Constitution "provides that no person

'shall be compelled in any criminal case to be a witness against himself.'" State v.

Templeton, 148 Wn.2d 193,207, 59 P.3d 632 (2002). The Washington Constitution's

equivalent to the Fifth Amendment is article I, section 9 4 and "' should receive the same

definition and interpretation as that which has been given to'" the Fifth Amendment by

the United States Supreme Court. Id. at 207-08 (quoting City of Tacoma v. Heater, 67

Wn.2d 733,736,409 P.2d 867 (1966)).

       To ensure the Fifth Amendment's protections, the United States Supreme Court

held in Miranda that law enforcement must fully explain a suspect's constitutional rights

before questioning her. 384 U.S. at 444-45. In In re Personal Restraint of Woods, our

Supreme Court characterized Miranda as requiring a four-part warning, stating that it

required that "a suspect in custody must be warned prior to any questioning that: ( 1) he

has the absolute right to remain silent, (2) anything that he says can be used against him,

(3) he has the right to have counsel present before and during questioning, and (4) if he

cannot afford counsel, one will be appointed for him." 154 Wn.2d 400, 434, 114 P .3d

607 (2005), overruled in part on other grounds by Carey v. Musladin, 549 U.S. 70 127 S.


       4
        "No person shall be compelled in any criminal case to give evidence against
himself." WASH. CONST., art. I, § 9.

                                             6
No. 33953-0-111
State v. Dawson


Ct. 649, 166 L. Ed. 2d 482 (2006) (citing State v. Brown, 132 Wn.2d 529, 582, 940 P.2d

546 (1997)). 5

       Even though the warnings identified in Miranda are required, "there is no

requirement that the warnings be given in the precise language stated in Miranda."

Woods, 154 Wn.2d at 434 (citing Duckworth v. Eagan, 492 U.S. 195, 202-03, 109 S. Ct.

287 5, 106 L. Ed. 2d 166 (1989) ). In reviewing a challenge to the sufficiency of

warnings, we examine "'whether the warnings reasonably and effectively conveyed to a

suspect his rights as required by Miranda.'" Woods, 154 Wn.2d at 434 (quoting Brown,

132 Wn.2d at 582.

       The record of the CrR 3.5 hearing is clear that in twice reciting the warnings she

gives before interrogating a suspect, Officer Kennedy made no mention of a right to stop

answering questions at any time until able to speak with a lawyer. To evaluate her

challenge to the trial court's finding and conclusion, then, we must address whether that

right is essential to "Mirandiz[ing]" a person in custody or being "given [one's] Miranda

rights"-the language used in the challenged finding and conclusion. CP at 87-88. It is


      5
          This tracks language in Miranda that the suspect must be told 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.

384 U.S. at 479.

                                             7
No. 33953-0-111
State v. Dawson


not one of the four warnings that our Supreme Court gleaned from Miranda in Woods,

154 Wn.2d 400.

       Ms. Dawson relies on the United States Supreme Court's decision in Duckworth

for her contention that a fifth warning-of a right to stop answering questions until able

to speak with a lawyer-is constitutionally required. Duckworth, a habeas petition

challenging an Indiana conviction, and specifically, the "advice of rights" form used in

Indiana, involved warnings that differed substantially from the warnings challenged here.

The Indiana form informed a suspect

       that he had the right to remain silent, that anything he said could be used
       against him in court, that he had the right to speak to an attorney before and
       during questioning, that he had "this right to the advice and presence of a
       lawyer even if [he could] not afford to hire one," and that he had the "right
       to stop answering at any time until [he] talked to a lawyer."

Duckworth, 492 U.S. at 203 (alterations original) (emphasis added). The Court held that

these warnings "touched all of the bases required by Miranda." Id.

       But what was at issue in Duckworth was language in the advice of rights form

stating, "We have no way of giving you a lawyer, but one will be appointed for you, if

you wish, if and when you go to court." Id. at 198 (emphasis omitted). A divided panel

of the Seventh Circuit Court of Appeals had reversed the petitioner's conviction,

concluding that the language denied the person in custody "' a clear and unequivocal

warning of the right to appointed counsel before any interrogation,"' and '" link[ s] an

indigent's right to counsel before interrogation with a future event.'" Id. at 200

                                             8
No. 33953-0-111
State v. Dawson


(alteration in original) (quoting Eagan v. Duckworth, 843 F.2d 1554, 1557 (7th

Cir.1988)). The Supreme Court reversed. In holding that Indiana's form "touched on all

the [Miranda] bases," the Court explained that the Court of Appeals misapprehended the

effect of the "if and when you go to court" language, which merely explained, for

indigent defendants, when Indiana procedure provided that counsel would be appointed.

       The Supreme Court in Duckworth addressed the sufficiency of Indiana's advice of

rights fonn but did not address the extent to which its contents were necessary. The

controlling case that does address whether a suspect must be told she can stop answering

questions at any time until able to speak with a lawyer-and concludes that she need not

be told-is Woods. The defendant in Woods made precisely the same argument as Ms.

Dawson, and our Supreme Court rejected it. 154 Wn.2d at 434-35.

       Ms. Dawson also relies on a more recent Washington decision, State v. Mayer,

however, which she argues requires some equivalent to the fifth warning given in

Duckworth. The court in Mayer points to language in Miranda indicating that the

Supreme Court's concern in that case was with'" effective means ... to inform accused

persons of their right of silence and to assure a continuous opportunity to exercise it,'"

and that Miranda requires that the rights it identifies be"' explained fully.'" 184 Wn.2d

548, 557, 362 P.3d 745 (2015) (emphasis omitted) (quoting Miranda, 384 U.S. at 444).

The Mayer court then states, "This explanation of rights must convey to the suspect that




                                              9
No. 33953-0-III
State v. Dawson


his right to silence-and his opportunity to exercise that right-applies continuously

throughout the interrogation process." Id.

       In isolation, this discussion in Mayer appears to muddy what in Woods was a clear

rejection of requiring any warning beyond the core four. But Mayer did not overrule

Woods, and our Supreme Court in Mayer was addressing a different factual context: after

unchallenged Miranda warnings, the suspect asked how and when a lawyer would be

appointed for him if requested, and received answers that obscured the meaning of the

initial warnings. The confusing answers made it doubtful that the suspect's willingness

to continue was knowing and intelligent. Id. at 556-57.

       The section of Miranda from which Mayer quotes this language about a

"continuous opportunity to exercise" the right to silence requires the State to develop

effective means to do two things. Miranda, 384 U.S. at 444-45. It must develop

effective means (I) to inform accused persons of their right of silence, and (2) to assure a

continuous opportunity to exercise it. Id. at 444. The first can be satisfied by the four-

part warning that Miranda identifies as sufficient. The second is satisfied by responding

appropriately to what happens thereafter. Miranda states:

       The defendant may waive effectuation of these rights, provided the waiver
       is made voluntarily, knowingly and intelligently. If, however, he indicates
       in any manner and at any stage of the process that he wishes to consult with
       an attorney before speaking there can be no questioning. Likewise, if the
       individual is alone and indicates in any manner that he does not wish to be
       interrogated, the police may not question him. The mere fact that he may
       have answered some questions or volunteered some statements on his own

                                             10
No. 33953-0-111
State v. Dawson


       does not deprive him of the right to refrain from answering any further
       inquiries until he has consulted with an attorney and thereafter consents to
       be questioned.

Id. at 444-45.

       For these reasons, we do not read Miranda as requiring a fifth warning that the

suspect can stop answering at any time until she talks to a lawyer, and we do not read

Mayer as retreating from or modifying the controlling holding of Woods.

       Substantial evidence supports the trial court's finding that Ms. Dawson was

Mirandized before providing the statements she sought to have suppressed. Ms.

Dawson's argument and authority dealing with taint and attenuation assumes a violation

of Miranda by Officer Kennedy and, since we find no violation, need not be addressed.

       Affirmed.

       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.


                                                 d?~w~ft·
                                                 Siddoway, J.

WE CONCUR:




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