FILED
August 22,2013
In the Office of the Clerk of Court W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 29658-0-111 Respondent, ) ) v. )
)
LEONARD WILLIAM BOSTON, ) UNPUBLISHED OPINION ) • Appellant. )
SIDDOWAY, A.C.J. Leonard Boston appeals his convictions for violations of
several provisions ofthe Uniform Controlled Substances Act, chapter 69.50 RCW. He
challenges the trial court's determination that inculpatory statements he made to a
Stevens County sheriffs detective were admissible at trial. He also challenges increases
in his period of confinement based on jury findings that he challenges for instructional
error and insufficient evidence.
We conclude that the State presented insufficient evidence to prove two school bus
stop enhancements in light ofthe instructions to the jury, which-whether or not
required-were given without objection, and are therefore law ofthe case. We reverse No. 29658-0-111 State v. Boston
those sentencing enhancements and remand for resentencing for the associated
convictions. We otherwise affirm.
FACTS AND PROCEDURAL BACKGROUND
The Stevens County Sheriff s Department suspected Leonard Boston of dealing
heroin and conducted a number of controlled buys of heroin from his sister, Gail
Remington, at the home where she and her teenaged son lived with Mr. Boston. Based
on evidence developed through the controlled buys, the sheriff s department obtained and
served a search warrant at the BostoniRemington home. Mr. Boston, Ms. Remington, her
son, and Chas Loster were there at the time. All four were brought into the living room
where one of the detectives present read Miranda 1 warnings from a card to the group
before transporting them to jail. None was asked to sign a waiver of rights. The last
sentence read from the card was a question, '" Having these rights in mind do you wish to
talk to us now[?]''' Report of Proceedings (Nov. 5,2010) (RP) at 51. Mr. Boston chose
not to make a statement.
A couple of hours after being booked into the Stevens County jail, Mr. Boston was
taken to a conference room to meet with Detective Brad Manke. The detective advised
Mr. Boston of the charges against him and asked if Mr. Boston wanted to speak to him.
Mr. Boston told the detective he was getting sick from not having heroin and needed
I Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 29658-0-II1 State v. Boston
medical help because "[his] head [was] not clear." Clerk's Papers (CP) at 274. Mr.
Boston asked Detective Manke to come back in a day.
The next day, Detective Manke returned to the jail and again spoke to Mr. Boston
in the conference room. After he inquired how Mr. Boston was feeling, Mr. Boston said,
"'Let's cut to the chase. What do you want?'" CP at 275. Detective Manke responded,
"'I want to know about your heroin dealings.'" Id. Mr. Boston replied, '''I'm small
time-not big time. I'm just a junkie keeping other junkies well.'" Id. The detective
had not read Mr. Boston his Miranda rights and Mr. Boston had not stated that he wished
to waive his rights. Mr. Boston then said his head still was not very clear and again asked
that Detective Manke come back later. Once again, that ended the conversation.
Detective Manke returned to the jail a day or two later. At the outset of that
conversation, Mr. Boston stated, "'I'd better talk to a lawyer.'" Id. Detective Manke
ended contact with Mr. Boston at that point.
The State planned to offer Mr. Boston's statements at trial, so a CrR 3.5 hearing
was conducted. The court found an implied waiver of Miranda rights and that Mr.
Boston's statements could be offered in evidence by the State.
Mr. Boston was found guilty by a jury of one count of delivery of a controlled
substance, one count of possession with intent to deliver a controlled substance, use of
drug paraphernalia, and bail jumping. Mr. Boston's statements to Detective Manke were
No. 29658-0-111 State v. Boston
arguably important to his conviction of the first two counts, given trial evidence that he
was involved in only a limited way, if at all, in sales to the confidential informant.
The jury was asked by special verdict whether Mr. Boston's delivery and
possession with intent to deliver occurred within 1,000 feet of a school bus stop. Proof of
sales in that proximity of a school bus stop may be relied upon to double the term of
imprisonment otherwise provided for the crime. RCW 69.50.435(1)(c). The jury
answered "yes." CP at 268,270. The court imposed a sentence of 120 months, which
included 48 months for two sentence enhancements based on the special verdict forms.
Mr. Boston appeals.
ANALYSIS
Mr. Boston assigns error to the trial court's (1) finding that his statements to
Detective Manke were admissible, (2) instructing the jury it had to be unanimous to
answer "no" to the special verdict forms, and (3) imposing school bus stop enhancements
when insufficient evidence was presented of the seating capacity of school buses stopping
near the BostoniRemington home. Mr. Boston concedes that his second assignment of
error fails in light of the Washington Supreme Court's intervening decision in State v.
Guzman Nunez, 174 Wn.2d 707, 285 P.3d 21 (2012). We address his first and third
assignments of error in tum.
No. 29658-0-III State v. Boston
I
When a person is subject to custodial interrogation, any statements made are
deemed to be compelled in violation of the Fifth Amendment unless the State can show
that before the statements were made there was a knowing, voluntary, and intelligent
waiver of the person's Fifth Amendment privilege. State v. Sargent, 111 Wn.2d 641,
648, 762 P.2d 1127 (1988). The State must show a waiver of Miranda rights by a
preponderance of the evidence. State v. Athan, 160 Wn.2d 354,380, 158 P.3d 27 (2007).
Statements obtained in violation of the Fifth Amendment must be suppressed. State v.
Warner, 125 Wn.2d 876, 888, 889 P.2d 479 (1995).
"The waiver inquiry 'has two distinct dimensions': waiver must be 'voluntary in
the sense that it was the product of a free and deliberate choice rather than intimidation,
coercion, or deception,' and 'made with a full awareness of both the nature of the right
being abandoned and the consequences of the decision to abandon it.'" Berghuis v.
Thompkins, 560 U.S. 370, 130 S. Ct. 2250, 2260, 176 L. Ed. 2d 1098 (2010) (quoting
Moran v. Burbine, 475 U.S. 412,421, 106 S. Ct. 1135,89 L. Ed. 2d 410 (1986)).
The following findings and conclusions by the trial court following the CrR 3.5
hearing are relevant to the issues Mr. Boston raises on appeal:
C. [After serving the search warrant] Detective [Michael] Gilmore brought Mr. Boston into the front room and had him sit on the couch, along with Ms. Remington and Mr. Loster.... At 14: 11, Detective Ian Ashley read the full Miranda warning to the three occupants-off of his rights card .... Mr. Boston stated that he understood his rights. He did not
No. 29658·0·111 State v. Boston
respond when asked if having these rights in mind, do you wish to say anything. The detectives did not question any of the three arrestees.
E. Later on May 14,2010, Detective Brad Manke contacted Mr. Boston in the conference room in the Stevens County Jail. Mr. Boston and the others were at the house for about 20 minutes, and then they were transported some blocks to the Jail, where they were booked. Mr. Boston was then taken into the conference room .... Detective Manke had met Mr. Boston on at least three previous occasions-they'd had civil, non· confrontational conversations in the past. ... F. Detective Manke advised Mr. Boston what the charges were and asked Mr. Boston ifhe wanted to speak to him.... Mr. Boston [said] he was getting sick from not having heroin, and needed medical help-my head is not clear. He stated that he wanted to talk to Detective Manke and asked the detective to come back in a day. They talked for five to ten minutes on May 14. G. On May 15, Detective Manke returned to the jail and again talked to Mr. Boston in the conference room. Mr. Boston's medical condition was noticeably better ... Mr. Boston stated, "Let's cut to the chase. What do you want?" Detective Manke answered, "I want to know about your heroin dealings." Detective Manke only answered Mr. Boston's question-Mr. [B]oston asked the first question. Mr. Boston stated, "I'm . small time-not big time. I'm just a junkie keeping other junkies well." Mr. Boston then said that his head still wasn't very clear and again asked the detective to come back later.... The interview took only a few minutes. Mr. Boston ... fully understood the reason Detective Manke had returned-Detective Manke had returned at Mr. Boston's request. H. Detective Manke returned again on May 16, or May 17. Mr. Boston stated at the outset, "I'd better talk to a lawyer." Detective Manke ended the contact.
CP at 273· 75.
From these findings of fact, the trial court concluded that Mr. Boston did not
expressly waive his Miranda rights, but that he waived them by implication: he was
informed of his rights, he understood them, and he then chose to offer information. It
found that the waiver was evident on May 14 and 15, only to be terminated on May 16 or
17. Although the court concluded that the detective's statement "I want to know about
your heroin dealings" was interrogation, it concluded that the State had proved by a
preponderance of the evidence that Mr. Boston's incriminating statements were
voluntary.
Mr. Boston assigns error to the trial court's finding of fact that Detective Manke
returned to the jail for the second interview at Mr. Boston's request. He assigns error to
the court's conclusions that he waived his Miranda rights by implication; that he was
informed of his rights, he understood his rights, and then chose to volunteer information.
He also assigns error to the court's conclusions that the waiver was evidenced on May 14
and 15, and that Mr. Boston never indicated anything other than a willingness to speak to
Detective Manke until May 16 or 17. Br. of Appellant at 5.
In reviewing a trial court's decision that a defendant's statement is admissible, we
treat the court's findings of fact entered following the CrR 3.5 hearing as verities on
appeal if unchallenged, and, if challenged, treat them as verities if supported by
substantial evidence. State v. Broadaway, 133 Wn.2d 118, 131,942 P.2d 363 (1997). A
trial court's findings following a CrR 3.5 hearing are supported by substantial evidence if
supported by evidence of sufficient quantity that a rational fair-minded person could
believe the finding to be true. State v. Hill, 123 Wn.2d 641,644,870 P.2d 313 (1994).
Credibility determinations are the prerogative of the trial court and are not subject to
review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We review de novo
whether the trial court's conclusions oflaw are properly derived from its findings of fact.
State v. Gasteazoro-Paniagua, 173 Wn. App. 751, 755, 294 P.3d 857,petitionjor review
filed, No. 89036-6 (Wash. July 9, 2013).
We first address Mr. Boston's sole assignment of error to the trial court's findings
of fact: his challenge to the finding that Detective Manke returned to the jail on May 15
at Mr. Boston's request. 2 Detective Manke testified at the CrR 3.5 hearing; Mr. Boston
did not. The following testimony by the detective was relevant to the trial court's
finding:
Q ... [Y]ou did tell him you wanted to talk to him, and he said, "Okay, I'll talk to you but not now." Correct? A At some point. I-He did say that. Q Okay. And that was in response to you saying you wanted to talk to him. A Yeah, basically, the- Q Okay. A -"Here's,-here's what you're charged with; I want to get your side ofthe story" type thing. I don't remember the exact words. Q Okay. A He asked me to come back the next day.
RP at 67-68.
Q You'd indicated that the suspect Mr. Boston had asked you to return the next [d]ay. Did you in fact do that? A I did.
2The finding is included in finding G, not finding H as stated in Mr. Boston's brief. Br. of Appellant at 5. We can and do overlook the error. RAP 1.2(a).
No. 29658-0-III
State v. Boston
Id. at 69.
Q Was there any time during your contact with Mr. Boston that he seemed uncertain about whether he wanted to talk to you? A Actually the first two times that I tried to talk to him he told me to come back. So he seemed certain that he wanted me to come back. And then the third time he-told me he wanted to talk to an attorney; so he was certain about that.
Id at 76.
At the erR 3.5 hearing, Mr. Boston's lawyer argued that Mr. Boston's statement
that his head was not clear and to come back the next day was "not an invitation to come
back tomorrow, ... [t]hat's an attempt to delay the conversation that's going on." Id at
91. While that is a possible interpretation of Mr. Boston's statement, the trial court was
in the best position to evaluate the evidence of surrounding circumstances and assess the
credibility of the detective, and it found a true invitation to return the next day. Detective
Manke's testimony is substantial evidence supporting the trial court's finding. Further
support for the finding is provided by the trial court's unchallenged finding that the
detective and Mr. Boston had met on at least three prior occasions and had had civil,
nonconfrontational conversations in the past.
Turning to Mr. Boston's challenges to the trial court's conclusions, the trial court's
conclusion that Mr. Boston was informed of his rights is supported by the unchallenged
finding that Detective Ashley read Miranda warnings to Mr. Boston and the others
present at the home in the early afternoon of May 14, at the time the search warrant was
being executed.
Mr. Boston nonetheless argues that the initial warnings were not sufficient because
he told Detective Manke he did not want to speak on May 14, the detective respected his
wishes at that time, and the detective's right to resume questioning was governed by case
law holding that questioning can be resumed only "after a 'significant period' of time has
passed [and] only if the accused's original request to cut off questioning was
'scrupulously honored' and he is provided with a fresh set of Miranda warnings on
requestioning." Br. of Appellant at 12 (quoting State v. Cornethan, 38 Wn. App. 231,
233-34,684 P.2d 1355 (1984».
Cornethan addressed an unambiguous invocation of the right to remain silent,
however. The trial court's finding in that case was that the defendant, upon being visited
in the hospital by his attorney,
"was advised ofhis constitutional right to remain silent and the defendant determined that he wanted to exercise his right to remain silent; defense counsel at that time advised Officer Covington of King County Rehabilitative Services who was guarding the defendant that the defendant did not want to talk to police."
38 Wn. App. at 234. An accused who wants to invoke his or her right to remain silent
must do so unambiguously. Berghuis, 130 S. Ct. at 2260.
Here, the trial court's unchallenged finding that "[Mr. Boston] stated that he
wanted to talk to Detective Manke and asked the detective to come back in a day," does
not present an unequivocal invocation of the right to remain silent. Cf United States v.
Al-Muqsit, 191 F.3d 928,936 (8th Cir. 1999) (right to remain silent was not invoked by
accused's statements that he "'wasn't ready to talk ... at that time'" and '''I don't think
right now"'), vacated in part on other grounds on reh 'g sub nom. United States v. Logan,
210 F.3d 820 (8th Cir. 2000); Commonwealth v. Leahy, 445 Mass. 481, 483-84,838
N.E.2d 1220 (2005) (,"Not right now, in a minute. I need to figure some things out,'"
not an unequivocal assertion of right to remain silent); People v. Martinez, 47 Cal. 4th
911,945,224 P.3d 877,105 Cal. Rptr. 3d 131 (2010) ('''I don't want to talk anymore
right now,'" not unequivocal).
Mr. Boston's next challenge is to the trial court's conclusion that Mr. Boston
understood his rights. The conclusion is supported by the court's unchallenged finding
that Mr. Boston stated he understood his rights and by other unchallenged findings, not
reproduced above, that when being read his rights Mr. Boston did not show confusion or
fear and did not show any signs of being under the influence of heroin, other controlled
substances, or alcohol.
The next conclusion challenged by Mr. Boston is that he impliedly waived his'
rights. "[A] waiver of Miranda rights may be implied,through 'the defendant's silence,
coupled with an understanding of his rights and a course of conduct indicating waiver.'"
Berghuis, 130 S. Ct. at 2261 (quoting North Carolina v. Butler, 441 U.S. 369, 373,99 S.
Ct. 1755,60 L. Ed. 2d 286 (1979)); State v. Terrovona, 105 Wn.2d 632, 646-47, 716 P.2d
295 (1986) (implied waiver may be found where the defendant is informed of his
Miranda rights, understands them, and chooses to volunteer information in the absence of
duress, promise, or threat). The "knowing and intelligent" dimension of Mr. Boston's
waiver is supported by the trial court's unchallenged findings that Mr. Boston did not
expressly invoke his right to remain silent after being read Miranda warnings, that he
stated he understood his rights, that he stated later that afternoon that he wanted to talk to
Detective Manke and told him to come back in a day, and that he thereafter made a
limited statement. These same unchallenged findings support the court's conclusion that
his waiver was evidenced on May 14 and 15 and that he never indicated anything other
than a willingness to speak to Detective Manke until May 16 or 17.
As to the requirement that his waiver be ''voluntary'' in the sense of being the
product of choice, Mr. Boston has not challenged any of the trial court's findings that his
statement was not the result of intimidation, coercion, or deception. 3 Those findings are
sufficient to support the voluntary character of the waiver.
3 We would not characterize Mr. Boston as having "chose[n] to volunteer information" in light of the trial court's conclusion (with which we agree) that Detective Manke's statement on May 14 constituted interrogation. But that conclusion was unnecessary to the trial court's determination that Mr. Boston's statement was admissible; it is enough that in responding to interrogation, Mr. Boston had been read his rights, understood them, impliedly waived them, and provided answers voluntarily.
In conclusion, the trial court's findings following the CrR 3.5 hearing are
supported by substantial evidence and its conclusions following the hearing were
properly derived from its findings. Mr. Boston's statement was properly admitted at trial.
II
Mr. Boston's remaining assignment of error is that insufficient evidence supported
the jury's finding by special verdict that Mr. Boston possessed a controlled substance
within 1,000 feet of a school bus stop designated by a school district, with the intent to
manufacture or deliver the controlled substance. RCW 69.50.435(l)(c) provides
increased periods of confinement under such circumstances.
Mr. Boston argues that the trial court's enhancement of his sentence based on the
jury finding must be reversed where the court's instructions to the jury defined "school
bus," yet the State failed to present any evidence that buses using the bus stop relied upon
by the State satisfied the definition.
Question 1 on the special verdicts relied upon for the school bus stop
enhancements asked in relevant part whether the State had proved beyond a reasonable
doubt that the defendant possessed or delivered a controlled substance "within one
thousand feet of a school bus route stop designated by a school district." CP at 268,270.
The jurors had been given the following instructions to guide them in answering
question 1 to the special verdict forms:
13 No. 29658-0-111 State v. Boston
INSTRUCTION NO. 26 You will also be given a special verdict form for the crimes charged in counts 3 and 5. If you find the defendant not guilty of these crimes or guilty of a lesser offense, do not use the special verdict form. If you find the defendant guilty of these crimes, you will then use the special verdict form and fill in the blanks with the answer "yes" or ~'no" according to the decision you reach. The special verdict form for these offenses has two questions. Because this is a criminal question, all twelve of you must agree in order to answer each question. The first question will ask you to consider the place where the crime occurred. For this question, the State has the burden of proof beyond a reasonable doubt. An earlier instruction defines this burden of proof.
INSTRUCTION NO. 27 "School bus" means a vehicle that meets the following requirements: (1) has a seating capacity of more than ten persons including the driver; (2) is regularly used to transport students to and from school or in connection with school activities; and (3) is [owned and operated by any school district] [or] [privately owned and operated under contract or otherwise with any school district] for the transportation of students. The term does not include buses operated by common carriers in the urban transportation of students such as transportation of students through a municipal transportation system.
CP at 254-55 (most alterations in original).
Instruction 27 was based on Washington pattemjury instruction 50.63. See 11
WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 50.63, at
1000 (3d ed. 2008). The instruction combines the statutory definition of "school bus" with
a definition contained in administrative regulations published by the superintendent of
public instruction. Id.
The State does not dispute Mr. Boston's contention that it presented no evidence
of the seating capacity of buses using the school bus route stop that it relied upon to
prove facts supporting the enhancement. It argues instead that the seating capacity of a
school bus is not an "element" of any crime with which Mr. Boston was charged.
Because it is only the definition of a term relevant to a sentencing enhancement, the State
argues, case law holding that the State assumes the burden of proving otherwise
unnecessary elements of an offense when they are included without objection in the to-
convict instructions should not apply. See, e.g., State v. Lee, 128 Wn.2d 151, 159,904
P .2d 1143 (1995). Such cases provide that if insufficient evidence is introduced at trial to
prove the added element, reversal is required. Id. at 164. Retrial following reversal for
insufficient evidence is "unequivocally prohibited" and dismissal is the remedy. State v.
Hardesty, 129 Wn.2d 303,309,915 P.2d 1080 (1996).
The law of the case doctrine is not limited in its application to elements
instructions, however. It provides more generally (and has, since 1896) that "whether the
instruction in question was rightfully or wrongfully given, it was binding and conclusive
upon the jury, and constitutes upon this hearing the law of the case." Pepperall v. City
Park Transit Co., 15 Wash. 176, 180,45 P. 743, 46 P. 407 (1896), overruled in part on
other grounds by Thornton v. Dow, 60 Wn.2d 622, 111 P. 899 (1910). It extends to
definition instructions. See Scoccolo Constr., Inc. v. City ofRenton, 158 Wn.2d 506,
522-23, 145 P.3d 371 (2006) (Madsen, J., concurring) (narrow and debatable definition
of "acting for" accepted in instructions was law ofthe case); Englehart v. Gen. Elec. Co.,
11 Wn. App. 922,923,527 P.2d 685 (1974) (definition of accidental death was law of the
case, no error having been assigned).
The jury was instructed that a "school bus" as used in the instructions must have a
seating capacity of more than 10 persons including the driver. Instruction 27 was the
only substantive instruction given to the jury to guide its determination whether the State
met its burden of proof, beyond a reasonable doubt, that Mr. Boston possessed a
controlled substance within the required proximity of a designated "school bus" stop.
The State raised no objection to the instruction, which thereby became the law of the
case. No evidence was presented regarding the seating capacity of buses stopping within
1,000 feet of the BostonlRemington home. Reversal of the school bus stop enhancements
is required.
We reverse the school bus stop enhancements. We otherwise affirm. We remand
for resentencing on Mr. Boston's convictions for delivery of a controlled substance and
possession with intent to manufacture or deliver a controlled substance in light of reversal
of the enhancements.
A majority of the panel has determined that this opinion will not be printed in the
16 I I ( No. 29658-0-II1 State v. Boston
Washington Appellate Reports but it will be filed for public record pursuant to RCW
2.06.040.
Siddoway, A.C.J.
WE CONCUR:
Brown, J.
Kulik, J.
f t 17
I t