State Of Washington, V Mark D. Wilmer
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Opinion
Filed Washington State Court of Appeals Division Two
August 7, 2018 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 50231-3-II
Respondent,
v.
MARK DOUGLAS WILMER, UNPUBLISHED OPINION
Appellant.
LEE, A.C.J. — Mark Douglas Wilmer appeals his convictions for three counts of custodial
assault committed against correctional officers at the Washington Corrections Center (WCC).
Wilmer argues that the trial court erred by not suppressing the statement he made to a Department
of Corrections (DOC) investigator during an interrogation without first being provided Miranda1
warnings. We affirm.
FACTS
A. THE INCIDENT
Mark Wilmer is an inmate at the WCC in Shelton, Washington, where he resides in the
Intensive Management Unit (IMU). Wilmer claims that the IMU is a more restrictive unit within
the WCC, compared to the units where the general prison population live.2 The incidents that gave
rise to Wilmer’s charged offenses occurred during his incarceration in the IMU.
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). 2 No portion of the record supports this assertion. No. 50231-3-II
On January 27, 2015, Corrections Officer Kenneth Nonamaker approached Wilmer’s cell
during a security check. Wilmer threw an unknown liquid substance onto Officer Nonamaker’s
right foot and left leg through a gap in the cell door. Officer Nonamaker could not identify the
liquid by its color or smell, but reported the incident immediately after.
On January 31, Corrections Officer Shannon Shinn, along with Corrections Officer Eric
Wulf, escorted a pill line nurse through the cell block in which Wilmer was incarcerated. As
Officer Shinn passed Wilmer’s cell, Wilmer threw a yellow liquid that smelled of urine. The
yellow liquid got on Officer Shinn’s hair, face, and body. Shortly after, Officer Wulf overheard
Wilmer say that the yellow substance that he threw onto Officer Shinn was urine. Wilmer also
stated that he was going to continue assaulting staff.
On February 1, as Corrections Officer Joshua Underberg was conducting a security check,
Wilmer threatened to sexually assault Officer Underberg’s wife and children upon release from
WCC. Wilmer also used a chip bag to propel what smelled like urine onto Officer Underberg as
he passed Wilmer’s cell.
Each corrections officer reported their separate incidents with Wilmer. On February 4,
Joshua Adams, a Department of Corrections investigator, compiled the corrections officers’
reports and investigated the alleged assaults. Adams approached Wilmer’s cell in the IMU and
spoke to him for a couple of minutes. Adams attempted to move Wilmer to a separate interview
room, but Wilmer refused to leave his cell.
Adams did not read Wilmer his Miranda rights or ask specific questions about each alleged
incident. He asked Wilmer why he had been assaulting prison staff, to which Wilmer responded
2 No. 50231-3-II
that his constitutional rights were being violated because he had not been allowed access to the
yard or shower.
The State charged Wilmer with three counts of custodial assault.
B. MOTION TO SUPPRESS
Wilmer moved to suppress the statement he made to Adams.3 Wilmer argued that his
statement in response to Adams’s question was inadmissible because it was the product of
custodial interrogation and Adams did not provide Wilmer his Miranda warnings. Wilmer
contended that he was in custody when he made the statement because he was a prisoner of the
DOC and housed in the IMU. The trial court found that Wilmer’s statement to Adams was
admissible.
The trial court ruled that the statement was the result of interrogation by a State agent, but
it was not custodial in nature because no further restrictions were placed upon Wilmer. Therefore,
the trial court denied Wilmer’s motion to suppress and admitted Wilmer’s statement made to
Adams.
C. TRIAL
At trial, Officers Nonamaker, Shinn, Wulf, and Underberg testified to the facts discussed
above. The State supplemented the officers’ eye-witness accounts with security footage of
Wilmer’s cell block in the IMU during each assault. While the angle of the video did not show
inside Wilmer’s cell or Wilmer in the act of throwing the urine, it showed the officers approaching
3 Wilmer also moved to suppress the statements he made about threatening Officer Underberg’s family, throwing urine on Officer Shinn, and continuing to assault staff. Wilmer does not challenge the trial court’s admission of these statements.
3 No. 50231-3-II
Wilmer’s cell and being sprayed with urine.4 The State also called Adams, who testified as to
Wilmer’s response that he was assaulting corrections officers because he was denied access to the
yard or a shower.
Wilmer testified at trial that he recalled being placed on lockdown for assaulting
corrections officers, but denied having participated in the incidents as described by the officers’
testimonies. He alleged that another resident of the IMU, from the adjacent cell, had assaulted
Officer Shinn and Officer Underberg and that he did not report the identity of the responsible party
to the corrections officers for fear of retribution by his fellow inmates.
On rebuttal, the State called Adams to address Wilmer’s allegations that another inmate
assaulted the corrections officers. Adams testified that it would have been impossible for an
individual in the cell next to Wilmer’s to have assaulted the corrections officers because of the
positioning of the cell doors.
The jury found Wilmer guilty on all three counts of custodial assault. Wilmer appeals.
ANALYSIS
Wilmer argues that the trial court erred by denying his motion to suppress testimony
regarding the statement he made to Adams because Adams’s questioning constituted a custodial
interrogation and should not have been admissible at trial. Assuming without deciding that the
trial court erred by not suppressing Wilmer’s statement to Adams, we hold that any claimed error
was harmless.
4 The security footage was entered into evidence, but has not been included in the appellate record.
4 No. 50231-3-II
A. STANDARD OF REVIEW
The admission of statements made in violation of Miranda is subject to a constitutional
harmless error analysis. State v. Reuben, 62 Wn. App. 620, 626, 814 P.2d 1177, review denied,
118 Wn.2d 1006 (1991). Thus, “we will vacate a conviction unless it necessarily appears, beyond
a reasonable doubt, that the misconduct did not affect the verdict.” State v. Monday, 171 Wn.2d
667, 680, 257 P.3d 551 (2011). An error is harmless if, disregarding the evidence admitted in
error, the remaining evidence “is so overwhelming that it necessarily leads to a finding of guilt.”
State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986).
Constitutional errors are presumed prejudicial and the burden of proving harmless error falls upon
the State. Id. at 425.
B. FAILING TO SUPPRESS ADAMS’S TESTIMONY WAS A HARMLESS ERROR
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