FILED COURT OF APPEALS DIVISION II
IN THE COURT OF APPEALS OF THE.STATi138MSFIVIRIN STATE OF VI SHiNGTON DIVISION II By STATE OF WASHINGTON, No. 44
Respondent, UNPUBLISHED OPINION
v.
DENNIS LEE WOLTER,
Appellant.
BJORGEN, A. C. J. — Dennis Lee Wolter appeals his convictions for aggravated first
degree murder and witness tampering, claiming that ( 1) the trial court erred by admitting a number of statements he made to investigating officers, ( 2) the trial court improperly dismissed a
juror during his trial, and ( 3) the jury' s finding of one of the aggravating circumstances must be
reversed due to instructional error and insufficient evidence. We hold that ( 1) the trial court did
not err in admitting Wolter' s statements, ( 2) the trial court did not abuse its discretion in
dismissing the juror, and ( 3) Wolter' s challenge to the aggravating circumstance is moot. We
affirm.
FACTS
Wolter' s Terry' Stop and Arrests
In May 2011, a neighbor called 911 to report a loud and violent argument between
Wolter and his girlfriend, Kori Fredericksen. Vancouver police officers responded and, after
1 Terry v. Ohio, 392 U. S. 1, 20, 88 S. Ct. 1868, 20 L. Ed. 2d 889 ( 1968). We refer to the officers' traffic stop of Wolter as a " Terry stop," because its legality is analyzed under Terry' s requirements. See Parts I.A.3. and C. of the Analysis below. No. 45041 - 1 - II
investigating, arrested Wolter. The State charged Wolter with.domestic violence fourth degree
assault and domestic violence malicious mischief for the incident. At his first appearance for the
charges, the Clark County District Court issued a no- contact order prohibiting Wolter from.
contacting Fredericksen.
Little more than a week after that first arrest, Officer Stefan Hausinger of the Camas
Police Department stopped Wolter for speeding early in the morning on a deserted stretch of
highway. When Hausinger approached the vehicle to speak with Wolter, he immediately
smelled alcohol. Hausinger also noticed that Wolter' s eyes were bloodshot, which led Hausinger
to believe Wolter was intoxicated. More alarmingly, when Wolter produced his license and
handed it to him, Hausinger noticed blood on Wolter' s hands and face. On closer inspection,
Hausinger noticed " more blood, not just on his hands and face, but all over his body." 2
Verbatim Report of Proceedings, (VRP) at 201.
Hausinger asked Wolter " what had happened and ... if he was okay." 2 VRP at 201.
Wolter explained that the blood was not his, but instead had come from his dog, who had been
hit by a car in Portland. Wolter' s story was quite detailed, providing the dog' s breed, name, age,
and the facts of the accident. Wolter stated that the dog' s blood had soaked him and his clothing
when he had picked it up to take it to a 24 -hour veterinary clinic, where it died and was disposed
of.
Hausinger returned to his car, requested back -up so that he could perform field sobriety
tests on Wolter, and requested a check on Wolter' s license, which turned up a felony arrest
warrant matching Wolter' s name and date of birth. Hausinger then asked dispatch to confirm the
warrant. No. 45041 - 1 - II
When back -up arrived, Hausinger again approached Wolter' s car and asked him to step
out and perform several voluntary field sobriety tests. Wolter assented and two of the tests
indicated that alcohol consumption had impaired his ability to drive. Hausinger then asked
Wolter to provide a voluntary preliminary breath test. Wolter again assented and the test
disclosed a blood alcohol content below the legal limit.
After finishing the field sobriety tests, Hausinger told Wolter he needed to verify the
story about the dog before Wolter could leave and asked how he could do so. Wolter gave
Hausinger the name of a friend he said he had been with and also told Hausinger that the receipt
from the veterinary clinic' s disposal of the dog' s body was in his truck and would confirm his
story.
By this point, Officer William Packer and Sergeant Douglas Norcross had arrived.
Hausinger and Norcross discussed the situation while Packer stood with Wolter at the back of
Wolter' s truck. Packer, who believed that Wolter had received the Miranda2 warnings, asked
Wolter about the blood, and Wolter repeated his story about his dog.
Hausinger and Norcross decided that a search for the receipt might resolve the situation.
Hausinger informed Wolter of his Ferrier3 rights and asked for permission to search the truck,
which Wolter gave. While Hausinger performed the search, Norcross replaced Packer at the
back of Wolter' s truck and " just kind of engaged [ Wolter] in conversation." 2 VRP at 280.
Wolter again told the same story about his dog. Norcross, who found it odd that Wolter would
have been travelling on the old highway instead of the new, main one, asked Wolter about his
2 Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
3 State v. Ferrier, 136 Wn.2d 103, 118 -19, 960 P. 2d 927 ( 1998).
3 No. 45041 - 1 - I1
route. Wolter stated that he had needed to relieve himself and had been looking for an isolated
place to do so. Packer, meanwhile, attempted to verify Wolter' s story by contacting veterinary
clinics in Portland. He was able to find one clinic matching Wolter' s description, but it denied
that Wolter had come in that night.
Hausinger' s search of Wolter' s truck failed to turn up a receipt for a veterinary clinic
visit. Hausinger did, however, find the no- contact order issued by the Clark County District
Court forbidding Wolter from contacting Fredericksen. When asked about the order, Wolter
assured the officers that the court had rescinded it that day because Fredericksen had recanted
her story.
The officers then conferenced on how to proceed. By this point, Wolter had told the
officers that he had been on his way to visit Fredericksen. Norcross ordered an officer to try to
contact her by phone and, when that failed, by driving to find her apartment complex. The
officers also decided to ask the Vancouver police officers to perform a welfare check at Wolter' s
residence " to make sure that there was nobody at the house who was injured or in need of any
medical help, due to the amount of blood" on Wolter and his clothing. 2 VRP at 220.
While waiting for the results of the welfare check, dispatch confirmed the existence of
the warrant, and Hausinger confirmed that the description on the warrant matched Wolter.
Hausinger placed Wolter under arrest for both the warrant and negligent driving, handcuffed
him, and read him the Miranda warnings. Wolter told Hausinger that he understood his rights
and was willing to waive them. Hausinger then transported Wolter to the Camas Police
Department for further questioning.
4 No. 45041 - 1 - II
At the Camas Police Department, Hausinger received word that Vancouver police
officers had discovered a " probable crime scene" at Wolter' s house. 2 VRP at 230. Meanwhile,
still bothered by Wolter' s odd choice of a route home, Norcross traveled up the highway, looking
for anything out of place on the side of the road. Approximately a mile up the road from where
Hausinger stopped Wolter, Norcross found a bloody shoe on the road' s shoulder. Norcross
stopped, got out of his car, peered over the road' s shoulder, and discovered Fredericksen' s body
down the steep embankment adjacent to the road.
After booking Wolter, Vancouver police detectives gave him the Miranda warnings acid
Wolter again agreed to waive them and speak with police. After questioning Wolter about his
dog and other matters, the detectives told him that they wanted to test his clothing to make sure
the blood was canine and not human. The request resulted in the following exchange touching
on Wolter' s right to counsel:
Wolter]: [ Y] ou' re not getting anything from me without a warrant. First Detective]: Okay. Fair call. Second Detective]: Well, now, yeah, ( inaudible)[.]
Wolter]: I will not do that. Helpful —helpful to you all night long. Second Detective] Totally agree. Wolter] I' ve been sitting here. If you want something, get a warrant for it. And —and, you know what? I really don' t care if you take it, but I am just saying. Second Detective] No, you' re fine. Wolter] That' s— that' s something that is —you' re going way over the line here. First Detective] I honesty. And I appreciate you being appreciate your
forthcoming with that, okay? Wolter] But I think something like that, I' d like to have an attorney present for that. Second Detective] Truly, cool. Wolter] For anything else. If you' re going to assume — you know, have your assumption of things. I told you what the blood was — Second Detective] Well, can I ( inaudible) for one here?
5 No. 45041 -1 - II
Wolter] -- you' re going to take this blood off —off me, you' re going to have to have a warrant.
3 VRP at 378 -79.
After a brief aside, one of the detectives asked Wolter about his request for counsel,
saying, " So, for clarification, you' re saying that when we get to this point of dealing with your
clothing, that' s where you need your attorney present with you[ ?]" 3 VRP at 381. Wolter
responded, " Yeah, right. I will answer all your questions, I' ll tell you what' s going on ... but
that is, you know, it' s like your attorney tells you, you know, you can' t be doing that." 3 VRP at
382.
After that exchange, the detectives began explicitly asking Wolter whether Fredericksen
was dead and whether he had killed her. They hinted that they had discovered Fredericksen' s
body, told him that Vancouver police detectives had found the bloody scene at his house, and
made clear to him that they would use the deoxyribonucleic acid ( DNA) evidence covering him
to prosecute him for murder. Wolter continued to assert his innocence until he finally ended the
interview by invoking his right to counsel.
After that interview, police transported Wolter to the Clark County Jail with another
arrestee, Danielle Williams. When Williams asked Wolter what police had arrested him for, he
replied, " Murder." 11A VRP at 2171. Williams then realized that she knew Wolter because she
had dated Fredericksen' s stepson, and she asked Wolter whom he had killed. Wolter told her
that he had killed Fredericksen and done so because " she had narced on him." 11A VRP at
2173. Wolter later contacted Fredericksen' s stepson from jail and asked him, obliquely, to
convince Williams not to testify against him.
6 No. 45041 - 1 - II
The State charged Wolter by amended information with aggravated first degree murder
for the death of Fredericksen pursuant to RCW 10. 95. 020 and with witness tampering for
attempting to induce Williams not to testify in violation of RCW 9A.72. 120. The State alleged
that the murder was aggravated by two of the circumstances prescribed in RCW 10. 95. 020,
specifically, that: ( 1) " at the time [ Wolter] committed the murder, there existed a court order .. .
which prohibited [ him] from either contacting the victim, molesting the victim, or disturbing the
peace of the victim, and [ he] had knowledge of the existence of that order" and ( 2) " Kori S.
Fredricksen was a prospective, current, or former witness in an adjudicative proceeding and that
the murder was related to the exercise of official duties to be performed" by Fredricksen.4 Clerk' s Papers ( CP) at 326.
B. The CrR 3. 5 Hearing Regarding Wolter' s Statements
Before trial, the trial court held an evidentiary hearing, as required by CrR 3. 5, to
determine the admissibility of Wolter' s statements to police during the Terry stop and at the
Camas Police Department. The trial court concluded that Wolter' s initial statements to
Hausinger during the Terry stop were admissible, despite the fact that he made them without
receiving the Miranda warnings, because they were not the product of custodial interrogation.
Rather, the court held Wolter' s statements were the result of community caretaking questions
associated with a Terry stop. The trial court determined that Wolter' s other statements to
officers at the scene, although given without receiving the Miranda warnings, were admissible
4 The State also alleged that Wolter was armed with a deadly weapon when committing the murder, warranting an enhanced sentence under RCW 9. 94A.533( 4)( a). The jury found that Wolter was so armed and he has not appealed that finding.
7 No. 45041 - 1 - II
because police obtained them in a Terry stop rather than custodial detention. The trial court
concluded that Wolter' s statements to detectives at the Camas Police Department were
admissible because he had received the Miranda warnings, waived his rights to remain silent and
to counsel, and told police that he wanted them to provide him with an attorney if they attempted
to take his clothing as evidence. The trial court determined that Wolter' s request for counsel was
conditioned on future events, allowing police to continue the interrogation.
C. The Trial
The trial court empaneled a jury, and the parties proceeded to trial. Five days into trial,
juror 1 reported that someone had spoken to her about the case over the preceding weekend, a
possible violation of the court' s instructions to the jury. The trial court brought the juror in for
voir dire so that the parties could inquire about the communication.
The juror stated that she had mentioned her jury duty to a friend who then asked if the
juror was serving on Wolter' s jury. Although the juror told the friend she could not discuss the
matter further, he told her, without prompting, that he knew Wolter and had spent time in jail
with him. The friend also related a brief conversation he had with Wolter during their shared
incarceration.
Ultimately, the trial court asked the juror whether there was " anything about the
conversation that would impair [her] ability to follow the Court' s instructions on the law or the
facts in the case ?" 9A VRP at 1652. She replied, " No. I —I hope not. That' s all I can —I' ve
never done this before, so —[.]" 9A VRP at 1653. The defense followed up, asking the juror if
there was " anything about [ her] conversation with [ her] friend ... — that [ was] impacting [ her]
thinking toward either party in this case ?" 9A VRP at 1653. The juror responded,
8 No. 45041 - 1 - II
Mmm, I don' t know. I mean, to be honest, I think, if anything, to me, it just made it more, like, personable, or like —I don' t know if the word, like, humane or
something. Like just because —that' s all. That' s all I can tell you. That' s it. It just made it more real, like, someone that I knew, like, had a discussion and that — I
don' t know. That' s just all. I don' t know —I don' t know how I feel about it. It' s weird. All of it is weird.
9A VRP at 1653.
The State moved, over defense objections, to dismiss the juror. The trial court granted
the motion, stating,
I don' t find that the juror, Juror Number 1, deliberately violated the order. Apparently, she misunderstood that she needed to be more aggressive in cutting off the conversation when it occurred. And the information that was related in itself is somewhat innocuous; however, I have to agree with the State that, apparently, the the person relating it to her and the type of information that was related seems to have had an effect on the juror 's ability to be fair. For that reason, I will excuse her and seat the first alternate.
9A VRP at 1657 ( emphasis added).
The trial court then called the juror in and excused her, telling her that
I didn' t particularly find that you had done anything wrong; you should have been more aggressive with your friend about getting them to cut off their statements to you. But the statements seemed to have had some effect on you and in an abundance of caution, I' m going to make sure that only jurors who don' t have that sort of outside information in effect are seated.
9A VRP at 1658.
The State presented evidence that Wolter had killed Fredericksen and that the murder had
been accompanied by the existence of several of the aggravating circumstances codified in RCW
10. 95. 020. The deputy prosecutor handling domestic violence cases in Clark County District
Court in May 2011 testified about Wolter' s prosecution for the assault and malicious mischief
offenses committed a week before Fredericksen' s murder. He testified that Fredrickson " was the
named victim in the case and ... was a witness for the State" and that she " would be the most
9 No. 45041 -1 - II
important witness for the State in the -- in the case." 10A VRP at 2009. The prosecutor also
testified that Wolter was aware of the no- contact order between himself and Fredericksen and
that it was in effect at the time of Fredericksen' s murder. Williams testified that Wolter stated
that he had killed Fredericksen because she had " narced" on him. 11A VRP at 2173.
The jury found Wolter guilty of first degree murder and witness tampering. The jury also
returned special verdicts finding the two aggravating circumstances alleged by the State.
Wolter now appeals.
ANALYSIS
I. WOLTER' S STATEMENTS
Wolter contends that the trial court erred by admitting statements obtained by police at
the scene of the Terry stop and during the interview with detectives after his arrest. After a brief
survey of our standard of review and the principles set out in Miranda and its progeny, we
address Wolter' s claims in turn, holding against each of them.
A. Applicable Legal Principles and Standard of Review
1. CrR 3. 5
CrR 3. 5 governs the admissibility of statements by a criminal defendant. The rule requires
the trial court to hold a hearing and make findings of fact and conclusions of law concerning the
admissibility of those statements. CrR 3. 5.
We review challenged findings of fact entered after the trial court' s CrR 3. 5 hearing for
substantial evidence. State v. Rosas -Miranda, 176 Wn. App. 773, 779, 309 P. 3d 728 ( 2013).
Substantial evidence is evidence sufficient to " persuade a fair -minded, rational person of the
truth of the finding." State v. Shuffelen, 150 Wn. App. 244, 252, 208 P. 3d 1167 ( 2009).
10 No. 45041 - 1 - I1
Unchallenged findings are verities on appeal. State v. Broadaway, 133 Wn.2d 118, 131, 942
P. 2d 363 ( 1997). If the trial court' s findings are unchallenged or supported by substantial
evidence, we then review de novo whether those findings of fact support the trial court' s
conclusions of law. Rosas -Miranda, 176 Wn. App. at 779.
2. Miranda
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." The due process clause
of the Fourteenth Amendment to the United States Constitution incorporates this provision,
making it applicable to action by the states. Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 12
L. Ed. 2d 653 ( 1964). 5
In Miranda, the United States Supreme Court " addressed the problem of how the
privilege against compelled self -incrimination guaranteed by the Fifth Amendment could be
protected from the coercive pressures that can be brought to bear upon a suspect in the context of
custodial interrogation." Berkemer v. McCarty, 468 U.S. 420, 428, 104 S. Ct. 3138, 82 L. Ed. 2d
317 ( 1984) ( citing Miranda, 384 U. S. at 436). We review whether a suspect was in custody for
purposes of Miranda by examining, under the totality of the circumstances, whether ' there
was] a " formal arrest or restraint on freedom of movement" of the degree associated with a
formal arrest. "' Thompson v Keohane, 516 U. S. 99, 112, 116 S. Ct. 457, 133 L. Ed. 2d 383
1995) ( quoting California v. Beheler, 463 U. S. 1121, 1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275
5 In his assignments of error, Wolter claims that the admission of his statements also violated article I, sections 9 and 22 of the Washington State Constitution. He offers no specific argument based on the state constitution, and we consider the claim of error waived. State v. Goodman, 150 Wn.2d 774, 782, 83 P. 3d 410 ( 2004).
11 No. 45041 - 1 - II
1983) ( quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 50 L. Ed. 2d 714
1977))).
The Miranda Court held that preserving the privilege against self incrimination - required
that " custodial interrogation be preceded by advice to the putative defendant that he [ or she] has
the right to remain silent and also the right to the presence of an attorney." Edwards v. Arizona,
451 U. S. 477, 481 - 82, 101 S. Ct. 1880, 68 L. Ed. 2d 378 ( 1981) ( citing Miranda, 384 U.S. at
479). If police secure a valid waiver of these rights, they may freely question a defendant, Davis
v. United States, 512 U. S. 452, 458, 114 S. Ct. 2350, 129 L. Ed. 2d 362 ( 1994), and the trial
court may admit any statements the suspect makes to police during the interrogation. Missouri v.
Seibert, 542 U. S. 600, 608 -09, 124 S. Ct. 2601, 159 L. Ed. 2d 643 ( 2004). However, without
such a waiver, any inculpatory statements obtained through custodial interrogation are generally
inadmissible. Seibert, 542 U.S. at 608.
3. Terry
The state and federal constitutions generally prohibit the police from seizing a person
without a warrant supported by probable cause. State v. Menesee, 174 Wn.2d 937, 942 -43, 282
P. 3d 83 ( 2012) ( citing U. S. CONST. amend IV and WASH. CONST. art. I; § 7). Among the limited
exceptions to this prohibition is an investigative detention, or Terry stop. State v. Day, 161
Wn.2d 889, 896, 168 P. 3d 1265 ( 2007). A Terry stop is valid if "justified at its inception" and
reasonably related in scope to the circumstances which justified" the stop. Terry v. Ohio, 392
U. S. 1, 20, 88 S. Ct. 1868, 20 L. Ed. 2d 889 ( 1968); Day, 161 Wn.2d at 895 -96. A stop is
justified at its inception where the detaining officer can " point to specific and articulable facts
which, taken together with rational inferences from those facts, reasonably warrant" allowing the
12 No. 45041 -1 - II
officer to detain a suspect without a warrant. Terry, 392 U. S. at 21; Day, 161 Wn.2d at 895 -96.
The stop is related in scope to the circumstances justifying it where brief and of limited
intrusiveness. Terry, 392 U.S. at 24 -27; Day, 161 Wn.2d at 895.
Where police detain a suspect in a traffic or Terry stop, they " significantly curtail[]" the
detainee' s "' freedom of action. "' Berkemer, 468 U.S. at 436, 439 ( quoting OHIO REV. CODE
ANN. § 4511. 02 ( 1982)). These detainees are, however, not in custody for purposes of Miranda
for two reasons. , Berkemer, 468 U. S. at 437 -40. First, traffic or Terry stops "[ are] presumptively
temporary and brief': the detainee can expect to answer a limited number of questions but will
then likely " continue on his [ or her] way." Berkemer, 468 U. S. at 437, 439 -40. Second, traffic
or Terry stops are less "' police dominated ' than jailhouse interrogations. Berkemer, 468 U.S. at
438 -39. The stops occur in public, rather than in the hidden confines of a jailhouse, and involve
a limited number of police officers. Berkemer, 468 U.S. at 438.
B. The CrR 3. 5 Findings of Fact and Conclusions of Law
Wolter assigns error to two of the trial court' s findings and portions of three of its
conclusions that he claims actually constitute findings. Appellant' s Opening Br. at 2 -3 ( assigning
error to findings of fact 7 and 9 and conclusions of law 3, 5, and 9). We treat "[ s] tatements of
fact included within conclusions of law" as factual findings and review them as such. Kunkel v.
Meridian Oil, Inc., 114 Wn.2d 896, 903, 792 P. 2d 1254 ( 1990).
Substantial evidence supports each of the challenged findings that are actually factual 6 findings. Wolter first contends that the trial court' s findings " misstate[] the timing of the police
6 As later discussed, Wolter' s challenges to conclusion of law three and nine are not factual and are addressed below as challenges to the trial court' s legal conclusions.
13 No. 45041 - 1 - II
investigation and reason" for his arrest. Br. of Appellant at 2. Hausinger, however, testified to
the timing and reason for arrest found by the trial court. Thus, substantial evidence supports this
challenged finding. Wolter next claims that the trial court erred by finding that the interview
with city of Vancouver detectives only continued for " a few more minutes." CP at 231. The
record shows that the interview following that first request for counsel was brief, thus supporting
this finding. Wolter finally contends that the trial court erred by finding that the police clarified
Wolter' s first request for counsel just after he made it. The record shows exactly that.
C. The Terry Stop
Turning now to the nature of the Terry stop, Wolter first argues that the statements
obtained by police during it were the product of custodial interrogation performed without first
providing him the Miranda warnings. For the reasons below, we hold that Wolter was not in
custody during the Terry stop and, consequently, the trial court did not err by admitting the
statements Wolter made during the stop.
Police stopped Wolter in what was essentially a combined traffic and Terry stop. The
stop occurred on a public roadway and police asked him a limited number of questions, all
directed toward confirming or disproving his explanation of how he had become covered in
blood. The scope and duration of the stop was reasonably related to its legitimate purposes,
determining whether Wolter or another person needed emergency medical attention and
investigating the circumstances that reasonably led the officer to suspect Wolter may have
committed a crime. Berkemer, 468 U.S. at 439 ( quoting United States v. Brignoni- Prince, 422
U. S. 873, 881, 95 S. Ct. 2574, 45 L. Ed. 2d 607 ( 1975)). Under Berkemer, Wolter was not in
custody for purposes of Miranda. Hausinger and the other officers did not need to provide the
14 No. 45041 - 1 - II
Miranda warnings to Wolter, and the trial court did not err by admitting the statements Wolter
made to the officers at the scene of the stop.
Nevertheless, Wolter contends that two factors transformed the traffic and Terry stop into
a custodial detention requiring Miranda warnings: the evidence that police gathered and the fact
that police took his license and did not give it back to him before his arrest. These arguments fail
to persuade.
Wolter' s claim that the detention became custodial because police had gathered evidence
against him improperly focuses on the subjective intents of the stop' s participants. The test used
to determine whether police have taken a suspect into custody for purposes of Miranda is
objective. Berkemer, 468 U. S. at 442. " An officer' s knowledge or beliefs may bear upon the
custody issue if they are conveyed, by word or deed, to the individual being questioned," but
otherwise are irrelevant to our review of whether an individual is in custody. Stansbury v.
California, 511 U. S. 318, 325, 114 S. Ct. 1526, 128 L. Ed. 2d 293 ( 1994); Berkemer, 468 U. S. at
441 -42. Whatever evidence police had, and whatever their suspicions, they never communicated
to Wolter that he would be arrested for any of these things until they actually took him into
custody. Thus, their knowledge or suspicions were irrelevant to whether he was effectively in
custody. Even if Wolter correctly believed that police would arrest him given what they knew,
that belief is also irrelevant. Stansbury, 511 U.S. at 323 ( detainee' s subjective belief irrelevant to
issue of custody).
Instead, we look to the objective circumstances of the stop, and, on balance, they do not
suggest that a reasonable person would have " gauge[ d] the breadth of his or her ` freedom of
action ' to be restricted to the degree associated with formal arrest. Stansbury, 511 U.S. at 325
15 No. 45041 - 1 - II
quoting Berkemer, 468 U. S. at 440). The officers did not physically restrain Wolter, either with
handcuffs or by placing him in a police vehicle. State v. Rehn, 117 Wn. App. 142, 155, 69 P. 3d
379 ( 2003). Nor did they unholster their weapons. State v. Marshall, 47 Wn. App. 322, 326,
737 P. 2d 265 ( 1987). Further, police did not order Wolter to obey any commands: they only
asked him to voluntarily undergo field sobriety tests and to consent to the search of his truck.
State v. Ustimenko, 137 Wn. App. 109, 116, 151 P. 3d 256 ( 2007). Nor does Wolter contend that
he requested and was .denied permission to leave during the stop. Finally, the scope and duration
of the stop, as already noted, was reasonably related to its legitimate purpose of determining if
Wolter or anyone else was in need of help and whether he may have been involved in a crime. A
reasonable person in those circumstances would not believe that this was anything more than a
Terry stop and would not understand himself or herself to be effectively under arrest during the
stop.
Wolter' s claim that his detention became custodial because police kept his license is also
unavailing. A reasonable motorist " expect[ s], when he sees a policeman' s light flashing behind
him ... that he will be obliged to spend a short period of time answering questions and waiting
while the officer checks his license and registration." Berkemer, 468 U.S. at 437. Police could
unquestionably take Wolter' s license to check his identity. They could also detain him until they
had verified he had no outstanding warrants. Since the police could validly keep Wolter on
scene while they verified a lack of arrest warrants without making the detention custodial, they
16 No. 45041 -1 - II.
could keep his license while they ran those checks without making the situation custodial. See
Berkemer, 468 U.S. at 437 -38; State v. Ferguson, 76 Wn. App. 560, 886 P. 2d 1164 ( 1995). 7
Wolter makes two further arguments of error related to the CrR 3. 5 hearing. First, he
contends that the trial court erred because it "made no finding that the State proved a reasonable
person in [his] position would have felt he was not being held by the police to a degree
associated with arrest." Br. of Appellant at 24. Specifically, Wolter claims that by failing to do
so, the trial court applied the wrong legal standard. Whether a reasonable person would have felt
that he or she was effectively in custody under the facts present here is a question of law, not of
fact. Thompson, 516 U. S. at 112 -16; State v. Lorenz, 152 Wn.2d 22, 36, 93 P. 3d 133 ( 2004).
Any trial court findings would have been superfluous on review of the custody question.
Thompson, 516 U. S. at 112 -16. The trial court did not err.
Wolter also contends that the trial court erred in finding that police arrested him for the
out -of -state warrant because they " had probable cause to arrest him for negligent driving from
close to the inception of the stop." Br. of Appellant at 27. Hausinger testified that he arrested
Wolter for both negligent driving and the out -of -state warrant, meaning the trial court' s finding
is correct, if incomplete. Regardless, the fact that police had probable cause to arrest Wolter
before they did so is irrelevant to whether he was in custody. State v. Harris, 106 Wn.2d 784,
789 -90, 725 P. 2d 975 ( 1986); see Stansbury, 511 U. S. at 323 ( citing Beckwith v. United States,
425 U. S. 344, 96 S. Ct. 1612, 48 L. Ed. 2d 1 ( 1976)).
7 In Ferguson police appear to have taken and kept Ferguson' s license, but the court held that he was not in custody for purposes of Miranda. 76 Wn. App. at 563, 568. Ferguson apparently did not argue that the taking and keeping of the license made the detention custodial, so it is not precedential, but it is instructive given that Division One of our court found that Ferguson was not in custody after its de novo review of the issue.
17 No. 45041 - 1 - II
The totality of the circumstances shows that Wolter' s detention was not custodial until
Hausinger announced he was arresting him, handcuffed him, and placed him in a squad car.
Without custody, questioning cannot constitute custodial interrogation and Miranda is not
implicated. We hold that the trial court properly admitted the statements he made to officers
during the detention.
D. The Interview
Wolter next contends that the trial court erred by admitting statements he made during his
interview with detectives after his arrest. Specifically, he contends that the statements were
inadmissible because he made them after he requested that police provide him with counsel. We
hold that the officers honored Wolter' s limited assertion of his right to counsel and that Miranda
did not require the exclusion of the statements.
A defendant may assert his or her right to counsel in a limited fashion. Connecticut v.
Barrett, 479 U. S. 523, 529 -30, 107 S. Ct. 828, 93 L. Ed. 2d 920 ( 1987). Where the police honor
a limited assertion of the right to counsel, Miranda does not require suppression of the
statements they obtain from the defendant. Barrett, 479 U.S. at 529 -30.
Wolter asserted his right to counsel in a limited way. He asked that the police provide
him counsel before taking his clothing as evidence and then explicitly stated his willingness to
otherwise answer questions. The police honored his limited request for counsel, and therefore
his " right to choose between silence and speech," the right guaranteed by Miranda. 384 U.S. at
369; Barrett, 479 U. S. at 529. Wolter " chose to speak." Barrett, 479 U. S. at 529. The trial
court properly admitted his statements. Barrett, 479 U.S. at 529 -30.
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II. REMOVAL OF THE JUROR
Wolter next claims that the trial court " interfered with [his] right to a jury trial by
removing a seated juror who was not biased, partial, or unable to serve." Br. of Appellant at 12.
We disagree.
The State and criminal defendants both have-the right to trial before an impartial jury.
WASH. CONST. art. I, § 22; U. S. CONST. amend. VI; State v. Hughes, 106 Wn.2d 176, 185, 721
P. 2d 902 ( 1986) ( citing Hayes v. Missouri, 120 U.S. 68, 70 -71, 7 S. Ct. 350, 30.L. Ed. 578
1887)). The jury must therefore be " free[] from ... bias against the accused and for the
prosecution, but [ also] free[] from ... bias for the accused and against the prosecution." Hughes,
106 Wn.2d 185. The guarantee of an impartial jury does not, however, entitle the State or a
criminal defendant the right to trial by a " particular juror or by a particular jury." State v.
Gentry, 125 Wn.2d 570, 615, 888 P. 2d 1105 ( 1995).
We review the trial court' s dismissal of a juror for an abuse of discretion.$ State v.
Depaz, 165 Wn.2d 842, 852, 204 P. 3d 217 ( 2009). Both statute and court rules constrain that
discretion. See Ottis v. Stevenson -Carson Sch. Dist. No. 303, 61 Wn. App.. 747, 751 -52, 812
P. 2d 133 ( 1991). RCW 2. 36. 110 provides that
i] t shall be the duty of a judge to excuse from further jury service any juror, who in the opinion of the judge, has manifested unfitness as a juror by reason of bias, prejudice, indifference, inattention, or any physical or mental defect or by reason of conduct or practices incompatible with proper and efficient jury service.
8 The special constraints on the trial court' s discretion to dismiss a juror after submitting a case to the jury are inapplicable, since the case had not yet been submitted. See, e. g., State v. Elmore, 155 Wn.2d 758, 778, 123 P. 3d 72 ( 2005), and Depaz, 165 Wn.2d at 852 -58.
19 No. 45041 -1 - II
CrR 6. 5 provides that "[ i] f at any time before the submission of the case to the jury a juror is
found unable to perform the duties the court shall order the juror discharged." We have
interpreted these provisions to " place a continuous obligation on the trial court to excuse any
juror who is unfit and unable to perform the duties of a juror." State v. Jorden, 103 Wn. App.
221, 227, 11 P. 3d 866 ( 2000).
Whether a juror is unfit because of bias or prejudice is a question of fact. Ottis, 61 Wn.
App. at 753 -54. Because the trial court observes the juror answering questions when asked about
possible bias, we accord great deference to its factual determinations about a juror' s ability to
serve impartially. State v. Rupe, 108 Wn.2d 734, 749, 743 P. 2d 210 ( 1987); Ottis, 61 Wn. App.
at 755 -56.
B. Propriety of the Dismissal
The trial court had tenable grounds to find the juror had become biased. Although the
juror did express that she thought she could follow the trial court' s instructions during voir dire,
she also stated that Wolter' s contact with her friend had affected her thinking about the case.
The trial court resolved the juror' s contradictory answers about her ability to serve impartially by
finding that the communication with her friend " seems to have had an effect on the juror' s ability
to be fair." 9A VRP at 1657. We defer to that finding.
The trial court had tenable reasons to excuse the juror. Once the trial court found that the
communication had biased the juror, it had no discretion: it had to dismiss the juror under our
interpretation of RCW 2. 36. 110 and CrR 6. 5, Jorden, 103 Wn. App. at 227, in order to safeguard
the State' s right to an impartial jury. Hughes, 106 Wn.2d at 185. There was no abuse of
discretion.
20 No. 45041 -1 - II
Wolter, however, contends that the trial court actually found that the juror had not
committed misconduct, citing the portion of the record where the trial court dismissed the juror
after telling her that " she had not ` done anything wrong. "' 9 Appellant' s Br. at 17 ( quoting 9A
VRP at 1658). As just noted, the trial court explicitly found that the communication had biased
the juror. In the portion of the record Wolter cites, the trial court stated, " I don' t find that the
juror, Juror Number 1, deliberately violated the order. Apparently, she misunderstood that she
needed to be more aggressive in cutting off the conversation when it occurred" before finding
she had become biased and ruling that "[ f]or that reason, I will excuse her and seat the first
alternate." 9A VRP at 1657. With this, the court was explaining that it had not found intent to
disregard its orders, only that the juror had actually done so. The court did not find an absence
of misconduct on the part of the juror.
Wolter also contends that the trial court abused its discretion in dismissing juror 1
because it denied his motion to dismiss other jurors who, he contended, showed greater bias than
that juror. This argument fails for three reasons. First, RCW 2. 36. 110 and CrR 6. 5 do not define
bias or prejudice on a relative scale: once the trial court a juror is biased, it must
dismiss the juror regardless of its decision about the bias of other jurors. See Jorden, 103 Wn.
App. at 227. Second, Wolter' s argument would only seem to prove that the trial court erred by
not dismissing those jurors, but he has not assigned error to those decisions or asked that we
9 In conjunction with this argument, Wolter contends that we should review the dismissal without deference to the trial court because the trial court did not explicitly state it was basing its finding on its observations of the juror during the voir dire related to the incident. But the trial court heard juror 1' s contradictory answers concerning her ability to serve fairly and resolved the contradiction by finding the communication had biased her. That finding was inherently based on the trial court' s observation of the juror' s answers, and we must defer to its finding. Rupe, 108 Wn.2d at 749.
21 No. 45041 -1 - II
grant him relief based on any error in refusing to dismiss those jurors. Therefore, he has waived
any claim of error to the seating of these other jurors. RAP 10. 3( a)( 4), ( 7). Finally, the potential
jurors that Wolter claims exhibited more bias than juror 1 stated during voir dire that they could
be fair and that they could hold the State to its burden of proof based on admissible evidence.
The trial court heard the jurors' answers and found no bias, and, again, we defer to that
determination. Rupe, 108 Wn.2d at 749.
III. AGGRAVATING CIRCUMSTANCE
Wolter finally claims that ( 1) the trial court erroneously instructed the jury on one of the
aggravating factors alleged by the State and that (2) the State failed to present sufficient evidence
of the aggravator. Wolter' s claims concerning the aggravator are moot because we cannot grant
him meaningful relief.
Here, the jury found the existence of two aggravating circumstances. First, it found that
Fredericksen was a witness in an adjudicative proceeding and that her murder related to her
official duties. RCW 10. 95. 020( 8). Wolter challenges this aggravator. Second, the jury also
found that, at the time Wolter murdered Fredericksen, he knew that a court order prohibited him
from " contacting [ her], molesting [ her], or disturbing [ her] peace." CP at 326; RCW
10. 95. 020( 13). Wolter assigns no error to this finding.
The jury' s finding of a single aggravating circumstance elevates premeditated first degree
murder to aggravated first degree murder. RCW 10. 95. 020. Consequently, regardless of our
disposition of Wolter' s challenge to the witness aggravator, Wolter would still be guilty of
aggravated first degree murder because of the no- contact aggravator. RCW 10. 95. 020( 13).
RCW 10. 95. 030( 1) would still require that he receive a sentence of life imprisonment without the
22 No. 45041 - 1 - II
possibility of parole. Therefore, we can provide Wolter with no meaningful relief. His claims
about the aggravator are moot and we decline to address them. Yakima Police Patrolmen' s Ass 'n
v City of Yakima, 153 Wn. App. 541, 552, 222 P. 3d 1217 ( 2009).
CONCLUSION
The trial court did not err by admitting Wolter' s statements to the investigating officers
and had tenable grounds and tenable reasons for dismissing the juror. Further, even if we accept
Wolter' s arguments about one of the aggravating circumstances, we can grant him no relief
regarding his sentence for aggravated murder, rendering his arguments moot. 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.
JP:
14, C. w, A. C. J. We concur:
WO swiCK, J.
SUTTON, J.