IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, ) No. 80963-6-I ) Respondent, ) ) v. ) ) DARIO MARTINEZ-CASTRO, ) UNPUBLISHED OPINION ) Appellant. ) )
VERELLEN, J. — Dario Martinez-Castro challenges his conviction for first
degree murder, arguing that the trial court erred in admitting his deleted text
messages under the independent source doctrine. Illegally obtained evidence can
be admitted if discovered through a source independent from the initial illegality.
The doctrine requires that the illegally obtained information not affect the
magistrate’s decision to issue the independent warrant or the state agents’
decision to seek the independent warrant. Because sufficient evidence supports
the trial court’s findings that the illegally obtained deleted text messages
uncovered on the 2018 warrant did not affect the magistrate’s decision to issue the
2019 warrant and that the messages did not affect the state agent’s unchanged
motivation in requesting the 2019 warrant, the court properly admitted the
messages under the independent source doctrine. No. 80963-6-I/2
Martinez-Castro also contends he was coerced into giving incriminating
statements to law enforcement. Sufficient evidence supports the trial court’s
findings that law enforcement officers complied with Miranda,1 and under the
totality of the circumstances, his statements were not coerced.
Finally, he contends that during rebuttal argument, the prosecutor
committed misconduct. But Martinez-Castro failed to object to the prosecutor’s
statements during rebuttal argument, and any impropriety caused by those
statements could have been neutralized by a curative instruction to the jury.
Therefore, we affirm.
FACTS
On April 7, 2017, 18-year-old Dario Martinez-Castro attended a party at
Marcos Rojas’s house. At the party, Martinez-Castro and another attendee, Pedro
Ramirez-Perez, engaged in a physical fight. Shortly after, Martinez-Castro left the
party.
About 15 minutes later, Martinez-Castro returned to the party, shot
Ramirez-Perez multiple times, and fled. Ramirez-Perez died. Multiple witnesses
told the responding officers that Martinez-Castro was responsible.
On the morning of April 8, with the assistance of Martinez-Castro’s family,
Federal Way Police Officer Justin Gregson spoke with Martinez-Castro on the
phone and later contacted him in the parking lot of a nearby restaurant. Officer
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
2 No. 80963-6-I/3
Gregson read Martinez-Castro Miranda warnings and then asked, “[D]o you
understand each of these rights I have explained to you?” and “Having these rights
in mind, do you wish to talk to us now?”2 Martinez-Castro responded affirmatively
to both questions. Officer Gregson transported Martinez-Castro to the Federal
Way police station.
At the station, Detective Heather Castro and Detective Mathew Novak
interviewed Martinez-Castro. Detective Castro started the interview by stating, “I
have some formal stuff that we will go through, and then we’ll just sit and talk,
okay?”3 Detective Castro proceeded by confirming Martinez-Castro’s identity,
contact information, and advising Martinez-Castro that the interview was being
audio and video recorded. Detective Castro then reread Martinez-Castro his
Miranda warnings. Martinez-Castro verbally acknowledged that he understood his
rights and also signed a written waiver. He again affirmatively agreed to speak
with detectives.
During the interview, Martinez-Castro admitted to attending the party but
stated that after the “fist fight,” he left and went to a friend’s house to sleep. At
some point during the interview, Martinez-Castro gave the detectives permission
to search his cell phone, but he later invoked his right to stop the search. The
detectives complied.
2 Clerk’s Papers (CP) at 697, finding of fact (FF) 4. 3 Report of Proceedings (RP) (Sept. 17, 2019) at 48.
3 No. 80963-6-I/4
Throughout the interview, after either a long silence, new information, an
intentional escalation or de-escalation of “emotional tenor,” or a break in
questioning, Detective Castro asked Martinez-Castro, “Is there anything else you
would like to add?”4 Martinez-Castro consistently responded, “No.”5 Detective
Castro also used various interview tactics during the interrogation such as
hypothetically discussing crimes Martinez-Castro could be charged with and
“[a]ppealing to his emotional side” by bringing up his mother.6 Despite the
detectives’ tactics, Martinez-Castro denied killing Ramirez-Perez.
After Detective Castro and Detective Novak completed their interrogation,
Detective Adam Howell interviewed Martinez-Castro. Shortly after Detective
Howell’s arrival, Martinez-Castro invoked his right to counsel. All questioning
stopped.
A few days later, Detective Castro submitted an affidavit and applied for a
warrant to search Martinez-Castro’s cell phone. The trial court issued the 2017
search warrant. Detective Michael Coffey executed the search using Cellebrite, a
software program designed to retrieve data from encrypted devices. Detective
Coffey did not uncover any useful information.
4 CP at 699, FF 20(b); RP (Sept. 17, 2019) at 72. 5 RP (Sept. 17, 2019) at 74-75. 6 Id. at 54.
4 No. 80963-6-I/5
About a year later, Detective Castro overheard other officers in the
department discussing an update to the Cellebrite software that potentially could
recover “more information” from an encrypted device.7
On December 3, 2018, Detective Castro submitted an affidavit and applied
for a second warrant to search Martinez-Castro’s cell phone. The trial court issued
the 2018 search warrant. Detective Thien Do executed the search using the
updated version of the Cellebrite software. Detective Do uncovered incriminating
text messages on Martinez-Castro’s phone that had been deleted. Martinez-
Castro filed a CrR 3.6 motion to suppress the incriminating messages.
Before the trial court ruled on the CrR 3.6 motion, the prosecutor realized
that Detective Castro’s affidavit in support of the 2018 warrant was problematic.
As a result, on May 14, 2019, Detective Coffey submitted an affidavit and applied
for a third warrant to search Martinez-Castro’s cell phone. The trial court issued
the 2019 search warrant. Detective Coffey uncovered the same incriminating
deleted text messages.
The trial court granted Martinez-Castro’s CrR 3.6 motion to invalidate the
2018 search warrant because Detective Castro misrepresented the extent of her
personal knowledge and experience with the Cellebrite software. The court
concluded that the 2019 search warrant was valid because the independent
source doctrine applied and therefore, the incriminating deleted text messages
were admissible.
7 RP (Sept. 26, 2019) at 449.
5 No. 80963-6-I/6
Martinez-Castro also filed a CrR 3.5 motion to suppress various statements
he made during the interviews with law enforcement. The court concluded that
there were no “threats, coercions, or promises made” and that the officers “did not
overbear Martinez-Castro’s free will,” and therefore, his statements to the officers
were admissible.8
At trial, during rebuttal argument, the prosecutor recommended that the
jurors acknowledge their emotions surrounding the case but ultimately render a
decision based only on the evidence presented. Martinez-Castro did not object.
The jury found Martinez-Castro guilty of first degree murder.
Martinez-Castro appeals.
ANALYSIS
I. Independent Source Doctrine
Martinez-Castro contends the independent source doctrine does not apply
because the State’s motivation to obtain the 2019 search warrant necessarily was
based on the State’s knowledge of the incriminating deleted text messages that
were discovered pursuant to the invalid 2018 search warrant.
We review factual findings for substantial evidence and examine whether
the evidence is sufficient to convince a rational person of the truth of the finding.9
We can supplement the trial court’s written findings with its oral decision and
8 CP at 700, FF 21(b), conclusion of law II(a). 9 State v. Hilton, 164 Wn. App. 81, 89, 261 P.3d 683 (2011) (citing State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994)).
6 No. 80963-6-I/7
undisputed evidence from the record.10 We treat unchallenged findings as verities
on appeal and review conclusions of law de novo.11
Evidence obtained from an illegal search and seizure is “subject to
suppression under the exclusionary rule” unless an exception to the exclusionary
rule applies.12 One of the “well-established” exceptions to the exclusionary rule is
the independent source doctrine.13
In applying the independent source doctrine, the determinative question is whether the challenged evidence was discovered through a source independent from the initial illegality. To determine whether challenged evidence truly has an independent source, courts ask whether the illegally obtained information affected (1) the magistrate’s decision to issue the warrant, or (2) the decision of the state agents to seek the warrant.[14]
But where the “illegal search in no way contributed to the issuance of the warrant
and police would have sought the warrant even absent the initial illegality, then the
evidence is admissible through the lawful warrant under the independent source
doctrine.”15
10In re LaBelle, 107 Wn.2d 196, 219, 728 P.2d 138 (1986) (citing State v. Holland, 98 Wn.2d 507, 514, 656 P.2d 1056 (1983)). 11 Hilton, 164 Wn. App. at 89 (citing Hill, 123 Wn.2d at 644). 12State v. Miles, 159 Wn. App. 282, 291, 244 P.3d 1030 (2011) (citing State v. Gaines, 154 Wn.2d 711, 716-17, 116 P.3d 993 (2005)). 13 Id. 14State v. Betancourth, 190 Wn.2d 357, 365, 413 P.3d 566 (2018) (citing Murray v. United States, 487 U.S. 533, 542, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988)). 15 Id.
7 No. 80963-6-I/8
Martinez-Castro challenges seven findings of fact related to the
independent source doctrine.
First, finding of fact 8(c) is that the 2019 search warrant “sought the
identical information sought in” the 2018 search warrant.16
Here, the only difference between the 2019 search warrant and the 2018
search warrant was that the former also sought evidence of “the motive for the
murder, possession of the murder weapon, or current location of the murder
weapon” and “[a]ny evidence tending to identify the shooter.”17 But both search
warrants sought information pertaining to “[a]ny and all use of the [cell phone] on
April 7, 2017 and/or April 8, 2017.”18 Because information pertaining to any and all
use of the cell phone was sought by law enforcement to determine specific
circumstances surrounding the murder, substantial evidence supports finding of
fact 8(c).
Second, finding of fact 8(d) is that “[t]he [a]ffidavit in support of [the 2019
search warrant] did not rely in any way on the fruits of [the 2018 search warrant].
The fruits of [the 2018 search warrant] were not included in the affidavit in support
of [the 2019 search warrant].”19
Here, Detective Coffey submitted the affidavit in support of the 2019 search
warrant. In the affidavit, Detective Coffey explained his experience as a “regular”
16 CP at 677, FF 8(c). 17 Compare CP at 129 with CP at 528. 18 Compare CP at 128-29 with CP at 528. 19 CP at 677, FF 8(d).
8 No. 80963-6-I/9
user of the Cellebrite software and how the updated version of the software has
the ability to take “an exact” copy of the device which “could include deleted
data.”20 Detective Coffey also noted in his affidavit that in his opinion, the 2017
search of Martinez Castro’s cell phone “may not have recovered and decoded all
possible data . . . including . . . deleted data.”21 Because the information in the
2019 affidavit relies on Detective Coffey’s personal experience using the Cellebrite
software and makes no reference to the illegally obtained incriminating deleted
text messages, substantial evidence supports the court’s finding of fact 8(d).
Third, finding of fact 8(f) is that “Martinez-Castro is in no worse position at
trial than he would have been in had [the 2018 search warrant] never been
issued.”22
Undisputed finding of fact 8(e) is that “[t]he information obtained from [the
2018 search warrant] had no impact on the magistrate’s decision to authorize [the
2019 search warrant], as the magistrate was unaware of the fruits of [the 2018
search warrant].”23 Because the magistrate who issued the 2019 search warrant
was unaware of the incriminating deleted text messages that the 2018 search
warrant uncovered, substantial evidence supports finding of fact 8(f).
Fourth, finding of fact 8(g) is that “[t]he State did not take tainted evidence
and use it to get more evidence. Rather, the [S]tate took valid evidence that
20 CP at 513. 21 Id. 22 CP at 678, FF 8(f). 23 Id.
9 No. 80963-6-I/10
wasn’t communicated to the [c]ourt in an appropriate way and recommunicated
that same evidence to the [c]ourt in an appropriate way to get the same search
accomplished.”24
Undisputed finding of fact 8(a) is that the State became “concerned that [the
2018 search warrant] was potentially problematic under the law. Considering this
[c]ourt’s findings regarding [the 2018 search warrant], these concerns were
reasonable[, and the State] accordingly requested that Detective Coffey seek
another search warrant for Martinez-Castro’s cell phone to fix potential flaws with
[the 2018 search warrant].”25 And unchallenged finding of fact 8(b) is that “[t]he
State’s motive to seek [the 2019 search warrant] was to correct potential errors in
the language in the affidavit in support of [the 2018 search warrant].”26 Substantial
evidence supports finding of fact 8(g).
Fifth, the next two findings Martinez-Castro challenges, findings of fact 8(h)
and 8(i), pertain to the court’s application of State v. Betancourth27 as an
analogous case. Finding of fact 8(h) is that “Martinez-Castro’s case is factually
similar” to Betancourth, and finding of fact 8(i) is that the facts in Betancourth “are
almost precisely the facts presented in Martinez-Castro’s case.”28 To the extent
these two “findings” are actually part of the trial court’s analysis of the legal
24 CP at 678, FF 8(g). 25 CP at 677, FF 8(a). 26 CP at 677, FF 8(b). 27 190 Wn.2d 357, 413 P.3d 566 (2018). 28 CP at 678.
10 No. 80963-6-I/11
question whether the independent source doctrine applied here, we review them
as conclusions of law.29
In Betancourth, the Yakima County District Court granted a search warrant
in 2012 ordering Verizon Wireless to provide Betancourth’s cell phone records
“including text messages” sent or received during the timeframe of the crime.30
After obtaining the records, a Toppenish police officer uncovered incriminating
messages Betancourth had sent to his girlfriend.31 About a year later, the Yakima
Superior Court ruled that only superior courts were permitted to issue warrants for
records of out-of-state companies.32 As a result, a Toppenish detective submitted
an affidavit that “was essentially identical to the affidavit” used in support of the
previous warrant and in 2013 requested another search warrant from the superior
court.33 The superior court granted the 2013 warrant.34 Our Supreme Court
denied Betancourth’s motion to suppress the incriminating messages because the
independent source doctrine applied.35
The court reasoned:
29 Casterline v. Roberts, 168 Wn. App. 376, 381, 284 P.3d 743 (2012) (citing Hegwine v. Longview Fibre Co., Inc., 132 Wn. App. 546, 556, 132 P.3d 789 (2006)). 30 Betancourth, 190 Wn.2d at 360-61. 31 Id. at 361. 32 Id. 33 Id. at 361-62. 34 Id. at 362. 35 Id. at 365-66.
11 No. 80963-6-I/12
The purpose of the independent source doctrine is met here because Betancourth’s text messages were required to be produced under the valid 2013 superior court warrant, which was untainted by any prior illegality. Toppenish police did not gain any information from the phone records initially supplied in response to the 2012 district court warrant that led them to seek the 2013 superior court warrant. Nor was the magistrate’s decision to issue the 2013 superior court warrant affected by, or made in reliance on, information obtained from the illegal search.[36]
Here, Martinez-Castro’s incriminating text messages were required to be
produced under the valid 2019 warrant. Federal Way police officers gained
information from the deleted messages initially supplied by the 2018 warrant but
the affiant of the 2019 warrant, Detective Coffey, had no knowledge of the illegally
obtained messages and did not refer to them in his affidavit, and the magistrate’s
decision to issue the 2019 warrant was not made in reliance on the information
obtained from the illegal 2018 search. In this sense, this case is factually similar to
Bentancourth. Findings of fact 8(h) and 8(i) are not erroneous.
Finally, challenged finding of fact 8(k) is that “[t]he [i]ndependent [s]ource
doctrine[ a]pplies in the instant case, and the [third search warrant] is valid.”37 We
also review this finding as a conclusion of law.
In its oral decision, the court noted that in order to determine whether
challenged evidence has an independent source, “the [c]ourt has to ask whether
illegally obtained information . . . affected the judge’s decision to issue the
36 Id. at 370. 37 CP at 678, FF 8(k).
12 No. 80963-6-I/13
subsequent warrant, or the decision of the state agents to seek the warrant.” 38
First, unchallenged finding of fact 8(e) notes that the magistrate who issued the
2019 search warrant “was unaware of the fruits of [the 2018 search warrant].”39
Second, initially, the court acknowledged that the “data” in response to the 2018
warrant was “illegally obtained information,” and that affected the State’s “decision
to seek” the 2019 warrant because “the 2018 warrant was potentially problematic
under the law.”40 But the court’s undisputed finding of fact 8(b) confirms that the
motivation of the State to seek the third warrant “was to correct potential errors in
the language” in the affidavit in support of the 2018 search warrant.41 “Finding of
fact” 8(k) reflects a proper analysis of the independent source doctrine.
Martinez-Castro argues that the prosecutor would not have requested the
third warrant “but for” knowing the second warrant revealed incriminating deleted
text messages. Therefore, Martinez-Castro contends the prosecutor was
necessarily “motivated” by the knowledge of the results of the tainted second
warrant in violation of the independent source doctrine. But Martinez-Castro’s
argument distorts the “motivation” requirement of the independent source doctrine.
And in State v. Mayfield, our Supreme Court rejected a similar argument.42
38 RP (Sept. 26, 2019) at 524. 39 CP at 677, FF 8(e). 40 RP (Sept. 26, 2019) at 524-25. 41 CP at 677, FF 8(b). 42 192 Wn.2d 871, 434 P.3d 58 (2019).
13 No. 80963-6-I/14
In Mayfield, our Supreme Court acknowledged that arguably, in
Betancourth, “the original defective warrant was a distant ‘but for’ cause of
discovering the evidence because the State did not seek the second warrant until
it discovered the defect in the first one.”43 But the court agreed with the outcome
in Betancourth because “Washington’s exclusionary rule does not operate on a
strict ‘but for’ causation basis,”44 and “the evidence itself was untainted because
the second, valid warrant was a truly independent source. ‘[T]he illegal search
[pursuant to the defective warrant] in no way contributed to the issuance of the
[valid] warrant and police would have sought the warrant even absent the initial
illegality.’”45 As in Betancourth, and consistent with Mayfield, here, the
“motivation” of the State remained unchanged in seeking the 2019 warrant. 46 For
43 Id. at 890. 44 Id. at 888. 45 Id. at 890 (alterations in original) (quoting Betancourth, 190 Wn.2d at 365). “Some cases applying the independent source doctrine have held that even though official misconduct was arguably a ‘but for’ cause of the discovery of evidence, the evidence was nevertheless admissible.” Id. at 889. 46 See Hilton, 164 Wn. App. at 89-93 (the appellate court held that “[i]n its findings, the trial court correctly focused on the facts of the investigation to determine that the derivative evidence was discovered independent of the original search warrant.”); see also Segura v. United States, 468 U.S. 796, 813-14, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984) (the Court noted that “[w]hether the initial entry was illegal or not is irrelevant to the admissibility of the challenged evidence because there was an independent source for the warrant under which that evidence was seized”); Murray v. United States, 487 U.S. 533, 541, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988) (“Knowledge that the marijuana was in the warehouse was assuredly acquired at the time of the unlawful entry. But it was also acquired at the time of entry pursuant to the warrant, and if that later acquisition was not the result of the earlier entry there is no reason why the independent source doctrine should not apply.”).
14 No. 80963-6-I/15
purposes of the independent source doctrine, the State’s “motivation” was to gain
any and all information relevant to the murder from Martinez-Castro’s cell phone.
Even though the State would not have sought the 2019 search warrant “but for” its
concerns about the 2018 search warrant’s illegality, the independent source
doctrine applies.
II. Miranda Warnings
Martinez-Castro argues that his statements to law enforcement were
“inadmissible products of police coercion.”47 We review findings of fact entered
after a CrR 3.5 hearing for substantial evidence.48
“In determining whether any part of the Miranda rule has been complied
with, we must look to the trial court’s findings to determine what occurred.” 49 “The
inquiry is whether, under the totality of the circumstances, the confession was
coerced.”50 “In assessing the totality of the circumstances, a court must consider
any promises or misrepresentations made by the interrogating officers.”51 “Some
47 Appellant’s Br. at 31. 48State v. Nysta, 168 Wn. App. 30, 40, 275 P.3d 1162 (2012) (citing State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997)). 49 State v. Cashaw, 4 Wn. App. 243, 247, 480 P.2d 528 (1971). 50 Broadaway, 133 Wn.2d at 132 (citing Arizona v. Fulminante, 499 U.S. 279, 285, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)). 51Id. (citing United States v. Springs, 17 F.3d 192, 194 (7th Cir. 1994); United States v. Walton, 10 F. 3d 1024, 1028-29 (3d Cir. 1993)).
15 No. 80963-6-I/16
of the factors considered in the totality test include the defendant’s physical
condition, age, mental abilities, physical experience, and police conduct.”52
Miranda “requires the expression of an objective intent to cease
communication with interrogating officers.”53 But “Miranda does not require that a
waiver of Miranda rights be in writing. It requires only that the waiver be made
‘voluntary, knowingly, and intelligently.’”54 “The meaning of the words ‘voluntary,’
‘knowingly,’ and ‘intelligently’ overlap. Their common thrust, however, is directed
to the existence of free choice on the part of the accused, that is, a waiver with
knowledge of Miranda rights without compulsion and by one mentally and
physically capable of exercising such choice.”55
Martinez-Castro challenges four findings of fact related to Miranda
warnings.
First, Martinez-Castro challenges two findings of fact related to whether
Detective Castro’s interrogation tactics invalidated Martinez-Castro’s waiver of his
Miranda rights. Finding of fact 13 is that at one point during interrogation,
Detective Castro referred to Miranda warnings as “formal stuff,” and that reference
did not invalidate Martinez-Castro’s waiver that he provided initially to Officer
52 State v. Burkins, 94 Wn. App. 677, 694, 973 P.2d 15 (1999) (citing State v. Aten, 130 Wn. 2d 640, 664, 927 P.2d 210 (1996)). 53 State v. Piatnitsky, 180 Wn.2d 407, 412, 325 P.3d 167 (2014). 54 Cashaw, 4 Wn. App. at 248. 55 Id.
16 No. 80963-6-I/17
Gregson and later to Detective Castro.56 Finding of fact 20 is that several times
during interrogation, Detective Castro asked Martinez-Castro if “he had anything
further to say,” and he consistently answered “No,” but that exchange never
constituted an unequivocal invocation of Miranda.57
The court’s undisputed finding of fact 6 is that “[r]egarding the advisements
provided by Officer Gregson, Martinez-Castro clearly manifested his
understanding of his rights and his willingness to talk.”58 And undisputed findings
of fact 9 and 10 are that Detective Castro read Martinez-Castro his Miranda
warnings for a second time, and the second advisement was “consistent with the
law and requirements of Miranda.”59
And Detective Castro testified that during interrogation, when she asked
Martinez-Castro if he “had anything else [he wanted] to add,” she did so in the
context of the information he previously provided.60 The court noted that although
it found Detective Castro’s testimony to be “less credible,” undisputed finding of
fact 18 is that most of the interactions between Martinez-Castro and “law
enforcement were recorded, and the [c]ourt had the ability to rely on the
recordings and not, for the most part, the memory of Detective Castro as she
recounted these events. The [c]ourt therefore does not find the concerns about
56 CP at 698, FF 13. 57 CP at 699, FF 20. 58 CP at 697, FF 6. 59 CP at 698, FF 9, 10. 60 RP (Sept. 17, 2019) at 52-53.
17 No. 80963-6-I/18
Detective Castro’s credibility to be dispositive.”61 Substantial evidence supports
findings of fact 13 and 20.
Martinez-Castro also challenges two findings of fact related to the
voluntariness of his Miranda waiver. Finding of fact 12 is that Martinez-Castro
“was properly advised of his rights and knowingly, freely, intelligently, and
voluntarily waived his rights.”62 Finding of fact 21 includes that “Martinez-Castro’s
statements were voluntarily made,”63 that an officer’s “psychological ploy . . . may
play a part in a suspect’s decision to confess,”64 and that there were no “threats,
coercions, or promises made, at least not that exceeded the lawful scope of a
police interrogation.”65
Here, when Officer Gregson first made contact with Martinez-Castro in the
parking lot, he testified that he read Martinez-Castro his constitutional rights from
the department-issued Miranda card. Officer Gregson also stated that the
department-issued card lists the Miranda advisements “verbatim,” and that he
uses it in the “same way with every person [he mirandizes].”66 Immediately after
reading Martinez-Castro his Miranda warnings, Officer Gregson asked Martinez-
Castro if he understood “each of [the] rights,” and Martinez-Castro “acknowledged
61 CP at 698, FF 18. 62 CP at 698, FF 12. 63 CP at 699, FF 21. 64 CP at 699, FF 21(a). 65 CP at 700, FF 21(b). 66 RP (Sept. 18, 2019) at 116.
18 No. 80963-6-I/19
his rights [and] stated he understood them.”67 When Officer Gregson asked
Martinez-Castro if he was “willing to talk,” Martinez-Castro answered
affirmatively.68 Officer Gregson testified that he never made “any sort of promises
to try to get [Martinez-Castro] to talk.”69 Undisputed finding of fact 3 is that Officer
Gregson’s “advisement was proper and legally accurate under Miranda.”70
Additionally, at the beginning of the interrogation, after confirming Martinez-
Castro’s identity, contact information, and advising him that the interview was
being recorded, Detective Castro testified that she reread Martinez-Castro his
Miranda warnings. Detective Castro then asked, “And having these rights in mind,
do you wanna talk to me?”71 Martinez-Castro replied, “Sure.”72 He then signed a
written waiver. Throughout the interrogation, Detective Castro testified that she
did not make any promises to Martinez-Castro in an effort to persuade him to
confess. Detective Novak confirmed that during interrogation, there were not any
“threats or promises” made to Martinez-Castro “off camera.”73 And Detective
Howell testified that during his interview with Martinez-Castro, he never made
Martinez-Castro any promises so that he would talk, nor did he “make any threats
67 Id. at 119. 68 Id. 69 Id. at 121. 70 CP at 697, FF 3. 71 Pretrial Ex. 3 at 5. 72 Id. 73 RP (Sept. 17, 2019) at 97.
19 No. 80963-6-I/20
or coerce him.”74 The court found Officer Gregson and Detective Howell credible.
And the court’s oral findings state that when balancing Martinez-Castro’s
“youthfulness” and “inexperience with the system” against “the tone and demeanor
of the officers,” that based upon the totality of the circumstances, Martinez-Castro
“was not overborne by the tactics used by law enforcement.”75 Substantial
evidence supports findings of fact 12 and 21.
The court’s legal conclusion that “the State has proven by a preponderance
of the evidence that there was proper advisement of Miranda warnings, that the
ensuing conversation was voluntary, and that it was a product of a knowing,
intelligent, and voluntary waiver of Miranda rights by Martinez-Castro” is supported
by the court’s findings of fact 12, 13, 20, and 21.76 The court properly concluded
that Martinez-Castro’s statements while speaking to Officer Gregson on the phone
prior to his arrest, his statements made to Officer Gregson, and his statements
made during the audio and video recorded interrogation until he invoked his right
to counsel were admissible.
Martinez-Castro argues that Detective Castro and Detective Howell
engaged in “unacceptable coercion by implicitly threatening Martinez-Castro’s
family”77 and by “implicitly [threatening him] with life in prison if he did not submit to
74 RP (Sept. 18, 2019) at 205. 75 Id. at 261. 76 CP at 700, FF 22. Martinez-Castro also challenges finding of fact 22. Because finding of fact 22 is a conclusion of law mislabeled as a finding of fact, we treat finding of fact 22 as a conclusion of law. 77 Appellant’s Br. at 36-38.
20 No. 80963-6-I/21
questioning.”78 Detective Castro admitted that she brought up Martinez-Castro’s
mother during the interview to appeal to “his emotional side,” and that she
discussed potential crimes he could be charged with in an attempt to make him
“talk.”79 But “[d]eception alone does not make a statement inadmissible as a
matter of law; rather, the inquiry is whether the deception made the waiver of
constitutional rights involuntary.”80 Because Martinez-Castro consistently invoked
his rights throughout the interrogation, the officers’ deceptive tactics did not render
the waiver of Martinez-Castro’s Miranda rights involuntary.
Martinez-Castro contends that because article I, section 9 of the
Washington Constitution provides more protection than the Fifth Amendment, we
should engage in a State v. Gunwall81 analysis and find that article I, section 9
requires that an “intelligent waiver of rights required giving Martinez-Castro some
indication of the suspected offense.”82 But in State v. Wheeler, our Supreme Court
held that article I, section 9 of the Washington Constitution is “identical in scope to
the Fifth Amendment.”83 The trial court correctly noted that article I, section 9
78 Appellant’s Br. at 44. 79 RP (Sept. 17, 2019) at 54. 80 Burkins, 94 Wn. App. at 695 (citing State v. Gilcrist, 9 Wn.2d 603, 607, 590 P.2d 809 (1979)). 81 106 Wn.2d 54, 720 P.2d 808 (1987). 82 Appellant’s Br. at 41. 83 108 Wn.2d 230, 240, 737 P.2d 1005 (1987) (citing State v. Franco, 96 Wn.2d 816, 829, 639 P.2d 1320 (1981); State v. Foster, 91 Wn.2d 466, 473, 589 P.2d 789 (1979)).
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“does not lend additional expanded protections above and beyond what are lent by
the Fifth Amendment.”84 We need not engage in another Gunwall analysis.
III. Prosecutorial Misconduct
In reviewing a claim of prosecutorial misconduct, we “must consider the
comments in the context of the total argument, the issues in the case, the
evidence addressed in the argument, and the instructions given to the jury.” 85
To prevail on a claim of prosecutorial misconduct, the defendant must
establish the “impropriety” of the prosecutor’s comments in addition to their
prejudicial effect.86 “To establish prejudice, the defendant must demonstrate that
there is a substantial likelihood that the misconduct affected the jury’s verdict.”87
But where a defendant does not object at trial, “reversal is unwarranted unless the
objectionable remark ‘is so flagrant and ill intentioned that it causes an enduring
84 RP (Sept. 18, 2019) at 241. See State v. Moore, 79 Wn.2d 51, 57, 483 P.2d 630 (1971) (holding that the “Washington constitutional provision against self- incrimination envisions the same guarantee as that provided in the federal constitution. There is no compelling justification for its expansion.”); State v. Earls, 116 Wn.2d 364, 378, 805 P.2d 211 (1991) (holding that the “slight difference in wording between [article I, section 9, and the Fifth Amendment] has been held to be nondeterminative, even in a context where the words “evidence” and “witness” commonly express the precise distinction involved”) (citing id. at 56-57). 85 State v. Edvalds, 157 Wn. App. 517, 522, 237 P.3d 368 (2010) (citing State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)). 86State v. Schlichtmann, 114 Wn. App. 162, 167, 58 P.3d 901 (2002) (citing State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994)). 87 Id. (citing Brown, 132 Wn.2d at 561).
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and resulting prejudice that could not have been neutralized by a curative
instruction to the jury.’”88
Martinez-Castro contends that the prosecutor erred because during
rebuttal, he made “repeated references to jurors’ emotions, and the [prosecutor’s]
instruction that they discuss them in deliberations amounted to an underhanded
attempt to appeal to jurors’ emotions.”89
In rebuttal, the prosecutor stated:
Now, in your jury instructions, the last paragraph of Jury Instruction Number 1 reads, as a juror, you are an officer of this court. You must not let your emotions overcome your rational thought process. You must reach your decision based on the facts proved to you and on the law given to you, not by sympathy, prejudice, or personal preference. To assure that all parties receive a fair trial, you must act impartially, with an earnest desire to reach a proper verdict.
This is a very serious circumstance. We are all human beings, and each one of us will have sympathy and emotion. Defense put on the screen for you a photograph of Mr. Martinez- Castro when he was a little kid. Mr. Martinez-Castro is young, and you’re being asked to make a very serious decision, a decision, which sympathy and emotion, as a human being, are going to factor in. Pedro is dead. His family has lost a brother, a cousin, a son. He is dead. You, when you go back, should talk about your emotions, talk about your sympathy for everybody involved in this case.
Be open and honest about your feelings. Be open and honest about them so that your other fellow jurors know them, and when it comes time to decide, when it comes time to step back and evaluate the actual evidence, to put those emotions aside, and make your decision based only on the evidence, not on your emotion or your sympathy.[90]
88 State v. Reed, 168 Wn. App. 553, 557, 278 P.3d 203 (2012). 89 Appellant’s Br. at 55. 90 RP (Oct. 23, 2019) at 2660-661.
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Here, in his rebuttal argument, the prosecutor acknowledged the human
tendency to make a decision based on emotion. The prosecutor asked the
members of the jury to discuss and acknowledge their emotions regarding the
case but explicitly stated that “when it comes time to decide . . . and evaluate the
actual evidence, . . . put those emotions aside and make your decision based only
on the evidence, not on your emotion or your sympathy.”91
Martinez-Castro contends that the prosecutor’s conduct here is similar to
the prosecutor’s conduct in State v. Craven.92 In Craven, during closing argument,
the prosecutor “told the jurors they would know Craven’s guilt beyond a
reasonable doubt by, in equal measure, recognizing it intellectually and feeling it
emotionally in their hearts and viscerally in their guts.”93 This court held that the
prosecutor committed misconduct by inviting “jurors to give the same weight to
their rationality as to their emotions and instincts.”94 A prosecutor “acts improperly
by seeking a conviction based upon emotion rather than reason.”95
Here, the prosecutor explicitly told the jury to “act on reason” and not “let
their emotions overcome [their] rational thought process” during deliberation.96
91 Id. at 2661. 92 15 Wn. App. 2d 380, 475 P.3d 1038 (2020), review denied, 197 Wn.2d 1005, 483 P.3d 784 (2021). 93 Id. at 387. 94 Id. at 388. 95 Id. at 385 (citing State v. Echevarria, 71 Wn. App. 595, 598, 860 P.2d 420 (1993)). 96 RP (Oct. 23, 2019) at 2660.
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Taken in context, it is troubling that the prosecutor made the risky suggestion that
the jurors should acknowledge and discuss their emotions and sympathies
because that could be viewed as an attempt to amplify and emphasize those
emotions and sympathies. But Martinez-Castro failed to object to the prosecutor’s
statements. Because a timely objection followed by an immediate curative
instruction would have blunted any inappropriate connotation from the prosecutor’s
rebuttal argument, we conclude that reversal is unwarranted.
WE CONCUR: