                                                                   FLED
                                                           GOURT OF APPEALS DIY 1
                                                           'STATE OF WASHINGTON

                                                               NIB HAR 26 titi 8:35




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                   )       No. 75992-2-1
                                       )
                       Respondent,     )       DIVISION ONE
                                       )
      v.                               )
                                       )       UNPUBLISHED OPINION
ANDRE JEAN ASH,                        )
                                       )
                       Appellant.      )      FILED: March 26, 2018
                                       )
      LEACH, J. — Andre Ash appeals his conviction for assault of a child in the

second degree. Primarily, Ash challenges the admission of his confession,

claiming that unfairly coercive and deceptive tactics produced it.       Because

substantial evidence supports the trial court's finding that Ash voluntarily

confessed and his remaining challenges lack merit, we affirm.

                                     FACTS

      Andre Ash and his girlfriend, Tambra Shean, are the parents of an infant.

After a physician at Seattle Children's Hospital examined a lump on the infant's

head, the hospital notified police about suspected abuse. The police talked with

both Ash and Shean at the hospital. Shean told police that she wanted to take a

polygraph examination. Ash was initially reluctant to take one but changed his

mind two days later.
No. 75992-2-1 /2


       Three days later, the police gave Ash a ride to the police station for his

polygraph examination. The detective examiner, Karen Kowalchyk, told him that

he was free to leave at any time, the interview was voluntary, and the interview

was being recorded.

       When Kowalchyk began questioning Ash about the infant's injuries, she

decided she could not conduct the polygraph test because Ash could not provide

yes or no answers. Because she had developed a rapport with Ash, she decided

to continue to interview Ash without the polygraph test. During the videotaped

interview, Ash confessed to shaking the infant, hitting his head on the wall twice,

and squeezing him. After the interview, the police drove Ash home. The next day,

the police arrested Ash and charged him with assault of a child in the second

degree.

       Ash asked the trial court to suppress his confession on the grounds that the

State coerced it. After a CrR 3.5 hearing, the trial court denied his request because

it found that Ash voluntarily confessed. It later convicted Ash at a stipulated bench

trial. Ash appealed. About six months later, the trial court entered its findings of

fact and conclusions of law supporting the conviction.




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                           STANDARD OF REVIEW

      An appellate court reviews a trial court's challenged findings of fact for

substantial evidence.1     "[W]hen reviewing a trial court's conclusion of

voluntariness, an appellate court determines'whether there is substantial evidence

in the record from which the trial court could have found that the confession was

voluntary by a preponderance of the evidence.'"2 An appellate court accepts

unchallenged findings as true on appeal3 and reviews conclusions of law de novo.4

                                   ANALYSIS

                             Involuntary Confession

      Ash challenges the trial court's finding that the State did not coerce his

confession and its conclusion that the State did not violate his Fourteenth

Amendment due process rights5 and Fifth Amendment protection against self-

incrimination.6 More simply stated, he claims that his confession was involuntary.

We disagree.




       1 Fisher Props., Inc. v. Arden-Mayfair, Inc., 115 Wn.2d 364, 369, 798 P.2d
799(1990).
       2 State v. Rafav, 168 Wn. App. 734, 757-58, 285 P.3d 83 (2012)(quoting
State v. Broadawav, 133 Wn.2d 118, 129, 942 P.2d 363(1997)).
       3 State v. O'Neill, 148 Wn.2d 564, 571,62 P.3d 489 (2003).
       4 State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009).
       5 U.S. CONST. amend. XIV.
       6 U.S. CONST. amend. V.
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       The Fourteenth Amendment's due process clause requires that the State

not use methods of physical or psychological coercion to procure a confession.7

Methods of coercion offend the underlying principle that the system of criminal law

is inquisitorial and not accusatoria1.8    To determine if the State coerced a

confession, the court examines the totality of the circumstances of each case.9

Potentially relevant circumstances include the length of the interrogation, its

location, its continuity, the defendant's physical condition and mental abilities, and

police conduct.19 "In assessing the totality of the circumstances, a court must

consider any promises or misrepresentation made by the interrogating officers."11

The court determines the existence of any causal link between promises or

misrepresentations of the officer and the defendant's confession.12 The court asks

whether the defendant's will was overborne by the circumstances.13

       First, Ash claims that he was vulnerable to coercion because he only slept

four hours the night before his interview.        Courts have found confessions




       7
       8       s v.6Richmond,
                      u.s.at41.5430  U.S. 534, 540, 81 S. Ct. 735, 5 L. Ed. 2d 760
                                  6-5U
(1961).
         Rogers,
      9 Broadaway, 133 Wn.2d at 132.
      1/3 State v. Unga, 165 Wn.2d 95, 101, 196 P.3d 645(2008).
          Broadaway, 133 Wn.2d at 132
      12 Broadaway, 133 Wn.2d at 132
      13 Broadaway, 133 Wn.2d at 132(citing State v. Rupe, 101 Wn.2d 664,679,
683 P.2d 571 (1984)).
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No. 75992-2-1 / 5


involuntary because of a defendant's poor physical and mental condition." Here,

the trial court found that Ash appeared to be in normal physical condition and

exhibited no injuries or symptoms of pain. Although Ash slept only four hours the

night before, he normally sleeps only six hours. Kowalchyk asked "suitability

questions" to rule out any concerns regarding drug or alcohol use, prescription

medications, mental health or medical issues, pain, and adequate sleep.

Kowalchyk also asked Ash if he was too tired to take the polygraph examination,

and he replied, "No." We conclude substantial evidence supports the trial court's

findings that neither Ash's physical condition nor his mental condition suggested

that he was susceptible to coercion.

       Next, Ash asserts that Kowalchyk coerced his confession by making

misrepresentations. Ash claims that Kowalchyk falsely told him that the infant had

shaken baby syndrome. Ash relies on a New York case, People v. Thomas,15 to

demonstrate how an interrogation filled with falsehoods can be coercive. In

Thomas,the officers told the defendant several lies that included (1)they were not

investigating a crime,(2) the defendant could go home once he told them what

happened,(3) that he must tell them what happened to help save the baby's life

(the baby was already dead), and (4) the defendant's wife blamed him for the


      14 See Mincey v. Arizona, 437 U.S. 385, 401-02, 98 S. Ct. 2408, 57 L. Ed.
2d 290 (1978) (holding that the statements were coerced because the officer
questioned Mincey when he was hospitalized, severely wounded, and confused).
      15 22 N.Y.3d 629,8 N.E.3d 308, N.Y.S.2d 193(2014).
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baby's injuries.16 Thomas does not apply here. Kowalchyk testified that another

officer told her that the infant had shaken baby syndrome and retinal

hemorrhaging. Therefore, Kowalchyk did not engage in deception by repeating

this information to Ash.

       Ash also asserts Kowalchyk used the "Reid technique" throughout

questioning to "subjugate the individual to the will of his examiner."17 The Reid

technique uses methods such as isolation, minimization, trickery, and negation of

the suspect's version of the events to induce a confession." Kowalchyk testified

that she used minimization but no other methods associated with the Reid

technique. When asked about the Reid technique's use of maximization,she could

not recall because she received the training 14 years earlier. Ash also claims in

his statement of additional grounds for review that the creators of the Reid

technique expressly advise interrogators to avoid suggesting "counseling"

because it may result in false confessions.          He cites Commonwealth v.

DiGiambattista,19 a Massachusetts case, to support his assertion that Kowalchyk's

suggestion of anger management classes was coercive. But DiGiambattista states

that the "mere mention of counseling" alone is not automatically an improper


       16 Thomas, 22    N.Y.3d at 638.
       17   Miranda v. Arizona, 384 U.S. 436, 457, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966),
       18 Miranda, 384 U.S. at 455-57.
       19 442 Mass. 423, 813 N.E.2d 516 (2004)(holding that a combination of
trickery and implied promises made the confession involuntary).
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suggestion of leniency undermining voluntariness.20          Although Kowalchyk

suggested that if Ash took anger management classes there was a possibility of

reunification with the infant, she did not make it seem like a certainty or make any

promises. Thus, the fact that Kowalchyk used minimization and suggested that

Ash take anger management classes in an effort to reunite with his son does not

show that she coerced Ash into confessing.

      Ash also claims that Kowalchyk coerced his confession because she

interviewed him for three hours and asked questions that made him emotional. In

Spano v. New York,21 the United States Supreme Court held that officers coerced

Spano's confession with police conduct. Many officers questioned Spano for eight

straight hours, beginning in the early evening and going through the night.22 The

police ignored Spano's request for an attorney and also used a close friend to

interrogate him.23 By contrast, in Cunningham v. City of Wenatchee,24 the Ninth

Circuit Court of Appeals held that the officer's conduct was not coercive. The

officer interrogated Cunningham for eight hours and never refused to give

Cunningham a break for food or water.25 The officer never yelled or threatened

Cunningham.26      The officer asked questions that may have "unsettled"

       20 DiGiambattista, 442 Mass. at 439.
       21 360 U.S. 315, 324, 79 S. Ct. 1202, 3 L. Ed. 2d 1265 (1959).
       22 Spano, 360 U.S. at 322.
       23 Spano, 360 U.S. at 323.
       24 345 F.3d 802 (9th Cir. 2003).
       25 Cunningham, 345 F.3d at 810.
       26 Cunningham, 345 F.3d at 810.
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No. 75992-2-1/8


Cunningham, but "mere emotionalism and confusion do not invalidate

confessions."27

       We see this case is most similar to Cunningham. Kowalchyk interrogated

Ash for only three hours. Like Cunningham, she interviewed Ash during regular

business hours and told him he could use the bathroom as needed. Unlike Spano,

Kowalchyk was the only interviewer, she did not threaten him or ignore any request

for an attorney, and Ash was not in custody. Kowalchyk never tried to intimidate

Ash but, alternatively, tried to put him at ease by explaining what would take place

during the interview. Kowalchyk did not raise her voice, remained calm throughout

the interview, and did not stop Ash from talking. She repeatedly told Ash that he

was free to leave at any time. Kowalchyk asked Ash if he was too tired to take the

examination. He replied, "I can take it." Thus, substantial evidence supports the

trial court's finding that Kowalchyk's conduct does not show that she coerced Ash

into confessing.

       Because Ash's confession was voluntary, the State did not violate his

Fourteenth Amendment rights.

       Next, Ash asserts that the police violated his Fifth Amendment protection

against self-incrimination when they continued to question him after he invoked his

right to remain silent. In Miranda v. Arizona,28 the Supreme Court of the United


       27 Cunningham, 345 F.3d at 810.
       28 384 U.S. 436, 444-45, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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States held that when a person is in custody and asserts his right to remain silent,

he also has the right to an attorney and the right to have police questioning halted.

Thus, to receive these additional protections, a person must be in custody.29

Custody, as defined in Miranda, means that the person has been "deprived of his

freedom of action in any significant way."39 But when a person asserts his right to

remain silent when he is not in custody, a court presumes any subsequent

statements are voluntary.31 "When a defendant is not in custody, he is in control,

and need only shut his door or walk away to avoid police badgering."32 Here, Ash

was not in custody. This means that Miranda's protections do not apply, and it is

inconsequential whether he validly invoked his right to remain silent.

       The police did not violate Ash's Fifth Amendment protection against self-

incrimination.

                                Insufficient Findings

       Ash .originally asserted that reversal was required because the trial court

failed to enter written findings of fact and conclusions of law after the stipulated

bench trial. But this claim became moot when the trial court later entered written

findings of fact and conclusions of law. Ash asserts now that the trial court's


       29 Montejo v. Louisiana, 556 U.S. 778, 795, 129 S. Ct. 2079, 173 L. Ed. 2d
955 (2009).
       39 Miranda, 384 U.S. at 444.
       31 State v. Sargent, 111 Wn.2d 641, 648, 762 P.2d (1988)("Once a person
is taken into custody, the presumption of voluntariness disappears.").
       32 Monte's:), 556 U.S. at 795.
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No. 75992-2-1/ 10


findings are insufficient to permit appellate review because they contain no facts

supporting the court's conclusion that he assaulted his son.

       Trial courts are required to enter written findings of fact and conclusions of

law after a bench tria1.33 The findings should include the elements of each crime

separately and specify the factual basis for each.34 The findings of fact do not

need to address every contention made by the parties but must be sufficient to

inform the appellate court how the trial court decided all material issues.35 But if

the trial court fails to enter sufficient findings and conclusions, it is harmless error

if the trial court's oral findings are sufficient to permit appellate review.36

Otherwise, a reviewing court must remand for entry of sufficient findings.37

       Here, Ash does not cite legal authority showing that the trial court's findings

from his stipulated bench trial were insufficient to support his conviction. A court

should "not consider claims insufficiently argued by the parties."35 Ash has shown

no prejudice from the delayed entry, and the trial court's findings are sufficient to

permit meaningful appellate review of the issues raised.




          CrR 6.1(d).
       34 State v. Denison, 78 Wn. App. 566, 570, 897 P.2d 437(1995).
          Daughtry v. Jet Aeration Co., 91 Wn.2d 704, 707, 592 P.2d 631 (1979).
       36 State v. Smith, 145 Wn. App. 268, 274, 187 P.3d 768 (2008).
       37 Daughtry, 91 Wn.2d at 711.
       38 State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 440(1990).
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                                CONCLUSION

      Because substantial evidence supports the challenged trial court findings

about Ash's confession and those findings support the legal conclusion that this

confession was admissible, we affirm Ash's conviction.




WE CONCUR:




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