FILED COURT OF APPEALS DIVISION II ZQtS NAR 3 Ai 8: 33 STATE. 13 IN THE COURT OF APPEALS OF THE STATE OF WASHINGT
DIVISION II
STATE OF WASHINGTON, No. 44168 -3 -II
Respondent,
v.
TRAVIS C. BAZE, UNPUBLISHED OPINION
Appellant.
LEE, J. — A jury found Travis Baze guilty of first degree assault, first degree robbery and
first degree felony murder. Baze appeals, arguing that ( 1) the trial court improperly admitted the
statement Baze made to the police and ( 2) his convictions for assault and robbery must be vacated
because they violate double jeopardy. The trial court properly admitted Baze' s statements and his
convictions do not violate double jeopardy. We affirm.
FACTS
On March 26, 2012, Baze drove Stephen Churchill to a park for an arranged drug deal with
Shawn Morrow. When Morrow arrived, Churchill jumped out of the car and hit him in the head
with a baseball bat. Morrow suffered severe head trauma and later died from his injuries.
Detective Jeffrey Rhoades was the primary detective assigned to the investigation of
Morrow' s murder. On March 27, Rhoades interviewed Baze and Churchill at Churchill' s
residence and arrested both of them. After being booked into jail, Baze gave a lengthy recorded
interview to Rhoades and Detective Matt Ledford, in which Baze admitted his involvement in No. 44168 -3 -II
Morrow' s assault. Baze also told Rhoades that Churchill took $45 from Morrow. Baze stated that
he thought Churchill was going to " maybe rough [ Morrow] up and take his money," but he did not
know Churchill was going to beat Morrow in the head with a bat. Ex. 70 at 22 ( some capitalization
omitted). After the assault, Churchill told Baze that he beat Morrow because Morrow had stolen
from him.
The State charged Baze with first degree assault, first degree robbery, first degree felony
murder ( predicated on the robbery), and second degree felony murder ( predicated on the assault)
in the alternative to first degree felony murder. In addition, Baze was charged with a deadly
weapon enhancement for each crime.
The trial court held a CrR 3. 5 hearing to determine the admissibility of Baze' s statement.
Detective Rhoades testified that he read Baze his Miranda rights when Baze was arrested and told
Baze that detectives would speak to him after he was booked into jail. Later, the detectives
transported Baze from jail to an interview room in the sheriff' s office. The State introduced the
transcript of the recorded interview. The following exchange took place immediately after Baze
consented to the interview being recorded:'
DETECTIVE RHOADES: ... And I know that we' ve done this once already ... out at the house but since we' re back on tape or since we are on tape I am gonna advise you of your rights. You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right at this time to talk to a lawyer and to have him present with you while you' re being questioned. If you cannot afford to hire a lawyer one will be appointed to represent you before any questioning if you wish. You can decide at anytime to exercise these rights, not answer any questions or make any statements. Do you understand those rights? BAZE: Yes.
1 The ellipses in this extensive quote from the interview are only used where " uh" or " um" have been removed from the transcript. No substantive information has been removed for the period of time between when Baze was read his rights and when he waived them.
2 No. 44168 -3 -II
DETECTIVE RHOADES:... Want you to do me a favor sign right there for me please.... And all you' re signing for here is that you' ve been advised of your rights and that you understand them. Kay? BAZE: Okay. DETECTIVE RHOADES: Travis having been advised of your rights do you wish to answer questions? BAZE: Well ... to be honest with you ... like as of right now ... I' m not sure can you tell me like I I' ve got no problem telling you guys what what went down. DETECTIVE RHOADES: Okay. BAZE: How it went down. DETECTIVE RHOADES: Okay. BAZE: And I' ve got I' ve got no problem being honest with you but did you am I do I need an attorney? DETECTIVE RHOADES: That' s up to you kay. You have the right to have an attorney here. And what I' ll tell you is you know if you want an attorney by all means that' s your right I' ve got no problems with that but we' re not gonna be able to do a statement tonight. BAZE: What does that mean for me? DETECTIVE RHOADES: What that means for you is I can pretty much guarantee you with great certainty that an attorney' s gonna tell you not to make any statements or not to say anything to the police. That' s their blanket their blanket statement that' s the advice they give everybody. BAZE: Um, hm. DETECTIVE RHOADES: But the dilemma that puts that puts you in or that puts us in is we' ve gotta go forward with this case then with the evidence that we already have and statements of the other people involved. So I mean it' s up it' s up to you right now if you want to tell your story in your own words kay we can do that or if you' d like to talk to an attorney by all means you have that right okay. But the issue is the court is gonna appoint you an attorney I don' t I don' t appoint an attorney I' m not gonna be able to appoint an attorney tonight, there' s not gonna be an attorney who' s gonna come down here and talk to you and then let you talk to us tonight. That' just that just doesn' t happen okay. Like I said an attorney' s s
gonna say you know don' t say anything. But at that point you know it' s a roll of the dice as far as you' re concerned at that point. BAZE: Um. DETECTIVE RHOADES: I can tell you Travis the only thing that I' m interested in today is to get the truth. That' s all we want. BAZE: Okay well and I understand that ... obviously that' s your job. DETECTIVE RHOADES: Sure. BAZE:... From from my point of view my my ... okay maybe maybe you see you know that' s ... that' s what' s ... I guess my concern is obviously I don' t want to be in jail.
3 No. 44168 -3 -II
DETECTIVE RHOADES: Sure. Let me tell you this regardless of whether you make a statement tonight or whether you don' t make a statement tonight that' s not gonna change okay, right now you' re under arrest. BAZE: Um, hm. DETECTIVE RHOADES: You' re under arrest until you see a judge.
BAZE: Okay. DETECTIVE RHOADES: So whether or not you make a statement tonight is gonna have no bearing on whether or not you' re in jail tonight okay. So if that' s what' s weighing on your mind regardless. BAZE: So what so what am I what am I under arrest for? DETECTIVE RHOADES: At this point it' s assault. And we' re not sure of the degree right now okay. It depends on the degree of Sean' s injuries. And that' s all it comes down to okay. DETECTIVE LEDFORD: And maybe based on your statement and what you have to say may add to your involvement in this case or take away from your involvement but without your statement you put it in your own words we can' t we can' t nail it down as to what your involvement was so we gotta error on the side of caution as to you being maybe more involved than what you are. And that' s just
for safety reasons so that' s kinda where we' re at. BAZE:Okay ... I guess ... so so how ... if you if you believe that I didn' t do it but I was there then then and I' m not trying to be a smartass with you or nothing I' m just why why am I being charged for assault if you believe that I wasn' t there? DETECTIVE RHOADES: Because. BAZE: Or thought that I was there sorry. DETECTIVE RHOADES: I believe that you were there and that you knew what was gonna happen before it happened. Okay. BAZE: ( Inaudible) DETECTIVE RHOADES: And that' s the crux of it. Okay. It' s my belief that you and Stephan went there knowing what was gonna happen and knowing what he intended to do. And that once it was done you two left together and that you didn' t contact the police and tell them what he did. Kay. That' s kinda the bare bones that' s what the law the way the law reads as far as your involvement. You' re not the one that I don' t believe you' re the one that swung the bat but you were there when it happened, you didn' t do anything to stop it. Kay and you didn' t do anything to report it. Which is all I know right now okay. I believe if there' s maybe some different circumstances that you' re aware of that we' re not or we' d love to hear them. Kay. And that' s why we give everybody the chance to come in here and tell their side of the story. Cause nobody can tell your story like you can. BAZE: You sure? DETECTIVE LEDFORD: Well for all you know for all intensive purposes sic] we give you the opportunity but you might want to say I want to say no Stephan didn' t do that I did that and that' s that' s why we' re letting you put this into your own words. No. 44168 -3 -II
BAZE: I understand that ... and I and that you know and I can' t I didn' t do that I ... . DETECTIVE LEDFORD: And that' s why we' re giving you the opportunity to give the statement and that' s why we brought you over here somewhere where we just talk. DETECTIVE RHOADES: We' re not sitting in the jail where everybody looks through the fucking windows and everybody ( inaudible) and can see you sitting down there talking to a couple of police okay. BAZE: So ... I just ... I I' m un I' m unsure of what to what to do is what my problem is right now because I don' t feel you know I what' s ... I don' t I don' t I I don' t want to nark [ sic] on anybody, I don' t want to be a part of something that I'm not, and I don' t want an assault charge on my record. DETECTIVE LEDFORD: And we understand that I mean if if you need to take a few moments and gather your thoughts you know that' s fine. But I don' t we don' t want to pressure you into anything all[,] all we want to do is just put the honest truth down as it truly happened and not put any words in anybody' s mouth. inaudible) who didn' t do anything or did less than you know we don' t want to make it look like somebody did more than something we just want to be honest and transparent and you know what happened happened we can' t change it now, all we can do is try and explain it as accurately as possible. DETECTIVE RHOADES: We' re just trying to do the right thing. That' s. BAZE: I understand that ... . DETECTIVE RHOADES: And I' m not gonna sit here and pretend to say that I know how you feel cause I don' t know how you feel. I don' t know what it' s like to be sitting where you' re at but what I can tell you Travis is I' ve done this job a long time, he' s done this job a long time, I' ve sat with many young men in your situation okay, and one thing I can say from experience is people will tend to feel better after they' ve told their story. Kay. Whether it' s now, whether it' s later they tend to feel better. Cause I can tell just now here by looking at ya I can tell when we were out there at the house kay this has been eating at ya. And it' s not something that' s easy to walk around and pretend like it didn' t happen. DETECTIVE LEDFORD: And you' re concerned you' re concerned for a couple of reasons, you know and that' s clear you' re you have a conscience you' re a normal person. You' re not some you know psychopath with no conscience. BAZE: Okay I and that' s true I I can agree with you there I do have a conscience and I do know I do have morals and I do.... and I do care for for lots of different reasons but ... but I but I and you know I I ... I don' t know I I don' t I' m I got a lot through going through my mind right now. I don' t I don' t ... . DETECTIVE RHOADES: Well let' s talk it out, what is it what' s what' s bothering you the most? BAZE: What' s bothering me the most is ... that that I' m in custody. DETECTIVE RHOADES: Kay. BAZE:... That' s bothering me a lot. It' s bothering me that I don' t know . what' s what' s next. It' s bothering me that I don' t know if I' m you know do I I .
5 No. 44168 -3 -II
it' s bothering me that I that I I never laid a finger on anybody and I and I' m sitting here for someone else' s shit. That' s bothering me a lot right now. And you know I' m not ... I' m not and I' m not sure what' s next that' s that' s. DETECTIVE RHOADES: What what do you mean what' s next as far as what happens tonight, what happens tomorrow? BAZE: Yeah sure sure yeah sure ... . DETECTIVE RHOADES: Well I' ll tell ya what' s gonna happen tonight alright. Tonight you' re gonna be booked into jail ... for assault. Tomorrow
probably tomorrow morning after nine o' clock you' re gonna be taken over you' ve been through the court system before you' ve been arrested before. BAZE: Sure. DETECTIVE RHOADES: Okay so you know how that game goes. You' re gonna be taken over there, you' re gonna have an ( inaudible) hearing the judge is gonna read a probable cause statement they' re gonna determine whether or not based on that report whether there' s probable cause to continue to hold you for the charge okay. At that point they' ll review your status ie [ sic] qualify for court appointed counsel or you make enough money that you' re gonna have to hire your own attorney. So you will have a chance to meet with an attorney tomorrow regardless in the courtroom whether it' s ... the one that you continue continues with your [ sic] throughout the Okay. So that' s what' s gonna happen in process.
the immediate future that I know because that' s what happens on every case. BAZE: Okay. DETECTIVE RHOADES: Alright. But what happens from there depends on you. I mean it depends on the other people and it depends on the evidence. Okay. DETECTIVE LEDFORD: But a lot of times these cases depend on peoples sic] involvement. DETECTIVE RHODES: Um, hm. DETECTIVE LEDFORD: And their honesty. BAZE: Sure. DETECTIVE LEDFORD: And you know a judge or prosecutor can see that. If somebody wants to be honest or whether they want to be dishonest. And a lot of times that that has a baring [ sic] as to you know releasing somebody on bail or not releasing them on bail ( inaudible) release them on recognizance you know that sort of thing. DETECTIVE RHOADES: You know and I' ll be honest with ya I' ve got some questions I' ve got some questions as far as your involvement and to what degree. Okay. There' s some things like I said I feel fairly certain about that I can I can walk into a courtroom and I can prove right now. Alright. But it' s the little intangibles that kinda the the why and the how much knowledge ... prior to and as to whose idea those are the things that I have questions about. And those are the
things that I I' m hoping you can answer for me.
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BAZE: Okay ... what ... as far what you guys know of my as what ...
involvement what what ... what degree am I what is that I mean what am I looking at what.
DETECTIVE RHOADES: I would love to sit and talk to you about that
okay but we gotta make a decision here as to whether or not we' re gonna sit and talk. BAZE: ( inaudible) Okay. DETECTIVE RHOADES: Okay I I' ve got no problems sitting and telling you what I know. Alright. But we' ve come to the point of where we' re gonna have you have to make a decision okay as far as how you want this to go and what you want to do. We can' t make the decision for ya. DETECTIVE LEDFORD: Travis ( inaudible) trick ya or make you say anything that you don' t want to say okay we' re not here to put words in your mouth and that' s what this opportunity is. DETECTIVE LEDFORD: It' s not TV we' re not gonna have this great big Perry Mason moment where we back you into a corner and I jump up and down and scream scream calling you a liar and there' s no ah ha. A case like this is very straight forward. Either something happened or it didn' t happen. BAZE: Okay well obviously it happened. DETECTIVE RHOADES: Well yeah we know that okay we know that. BAZE:... I feel like I feel like I ... I feel I don' t feel I' ve earned a charge out of this and I don' t feel like like I should. DETECTIVE RHOADES: Well and I' d love to hear ya explain that. DETECTIVE LEDFORD: That' s kinda what we gotta talk about with your consent though you know and we can have a two way conversation but we can' t do that unless you want to. It' s best you know it' s kind of a it' s kinda of a wall between us here at this point. Okay. BAZE: ... Okay. What what (inaudible). DETECTIVE LEDFORD: Would you like to speak to us and continue this conversation?
BAZE: Sure. DETECTIVE RHOADES: Kay. DETECTIVE LEDFORD: Okay. ( inaudible) initial here or sign here acknowledging that you wish to speak to us and we' re gonna go ahead and continue this.
Ex. 2, at 2 -11 ( some capitalization omitted). Baze' s written waiver of his Miranda rights was
admitted at the CrR 3. 5 hearing.
After the hearing, the trial court concluded that Baze' s initial statement to the detectives
was an equivocal request for counsel and that the detectives then limited the colloquy clarifying
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whether Baze wished to waive his rights. And, the trial court also concluded that "[ t] he fact that
the defendant was told that there wouldn' t be an attorney available to be appointed that night did
not render the advisement of rights ineffective." Suppl. Clerk' s Papers ( SCP) at 176. The trial
court further concluded that Baze made a " clear, voluntary, knowing, and intelligent" waiver of
his right, and ruled Baze' s statements were admissible.
A jury found Baze guilty of first degree assault, first degree robbery, first degree felony
murder, and second degree felony murder. The jury also returned special verdicts finding that
Baze or an accomplice was armed with a deadly weapon during the commission of all four crimes.
The trial court vacated the verdict for second degree felony murder predicated on the assault and
sentenced Baze to standard range sentences on the first degree assault, the first degree robbery,
and first degree felony murder. Baze appeals.
ANALYSIS
A. ADMISSIBILITY OF STATEMENTS
Baze argues that the trial court erred by admitting his statements because ( 1) the detectives'
statements after his equivocal request for an attorney violated his right to an attorney under
Miranda2 and ( 2) the detectives' statements after his equivocal request for an attorney made the.
waiver of his Miranda rights involuntary.3 We hold that the trial court properly concluded that the
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
3 Baze also argues that the statements should be suppressed because the State violated CrR 3. 1( c) by failing to take steps to immediately provide Baze with a way to contact an attorney. Baze never argued that the State violated CrR 3. 1( c) at the trial court and is not permitted to raise the issue for the first time on appeal. RAP 2. 5( a). RAP 2. 5( a)( 3) allows an appellant to raise a manifest error
affecting a constitutional right for the first time on appeal. Under RAP 2. 5( a)( 3) the error must be truly of constitutional dimension. State v. Kirkman, 159 Wn.2d 918, 926, 155 P. 3d 125 ( 2007). CrR 3. 1 is not a rule of constitutional dimension. State v. Guzman -Cueller, 47 Wn. App. 326, 334,
8 No. 44168 -3 -II
detectives' comments did not violate his right to an attorney under Miranda and that Baze' s
statements were voluntary. Therefore, we affirm.
We review the trial court' s findings of fact from a CrR 3. 5 hearing to determine if they are
supported by substantial evidence. State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 ( 1997).
We review conclusions of law de novo to determine whether they are properly derived from the
findings of fact. State v. Pierce, 169 Wn. App. 533, 544, 280 P .3d 1158 ( citing State v. Grogan,
147 Wn. App. 511, 516, 195 P. 3d 1017 ( 2008)), review denied, 175 Wn.2d 1025 ( 2012).
Unchallenged findings of fact are considered verities on appeal. Id. Here, there were no disputed
facts.4
1. Request for Counsel
Baze asserts that his statement "[ d] o I need an attorney ?" was an equivocal request for
counsel and limited the officers' questioning to whether the defendant would like an attorney.
Baze argues that his statements should have been suppressed because the officers did not limit
their questioning to whether he wanted an attorney. We disagree.
Our Supreme Court articulated the rule for which Baze advocates in State v. Robtoy, 98
Wn.2d 30, 39 -40, 653 P.2d 284 ( 1982). In Robtoy, our Supreme Court held:
W] henever even an equivocal request for an attorney is made by a suspect during custodial interrogation, the scope of that interrogation is immediately narrowed to one subject and one only. Further questioning thereafter must be limited to clarifying that request until it is clarified."
734 P. 2d 966 ( 1987). Therefore, Baze' s claim that the detectives violated CrR 3. 1 is not an error affecting a constitutional right and may not be raised for the first time on appeal.
4 Baze assigns error to two of the trial court' s findings of fact, but only in so far as they should be considered legal conclusions.
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Id. at 39 ( quoting Thompson v. Wainwright, 601 F. 2d 768, 771 ( 5th Cir. 1979)) ( alteration in
original).
But, in 1994, the Supreme Court of the United States decided Davis v. United States, 512
U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 ( 1994). In Davis, the Court determined that if a
defendant makes an equivocal request for counsel the police may continue questioning unless or
until the defendant explicitly and unequivocally requests an attorney. Id. at 461. In 2008, our
Supreme Court explicitly stated that Davis was the law under the Fifth Amendment and, thus, it
was the law when applying the Fifth Amendment and Miranda in Washington. State v. Radcliffe,
164 Wn.2d 900, 906 -07, 194 P. 3d 250 ( 2008).
Baze argues that we should return to applying Robtoy because article 1, section 9 of the
Washington Constitution provides broader protection than the Fifth Amendment. However, we
need not determine whether the Washington Constitution requires a return to the Robtoy rule
because under the facts of this case, the result would be the same regardless of whether we apply
Robtoy or Radcliffe. See City of Seattle v. Williams, 128 Wn.2d 341, 347, 908 P.2d 359 ( 1995)
There is a " well- established policy that if, in order to resolve an issue before us, it is not necessary
to reach a constitutional question, an appellate court should decline to do so. "). Therefore, we
proceed assuming, not deciding, that the Robtoy rule applies.
In Robtoy, the suspect stated that, "maybe" he wanted a lawyer. 98 Wn.2d at 40. The
officers told the suspect that, if he asked for an attorney, the " conversation ends right here." Id.
The suspect paused, and the officer told him "[ d] o you understand that once you say you want an
attorney, you know, we have to stop talking. It' s going to be difficult to change and go back and forth." Id. The suspect continued to pause and seemed " to have difficulty starting to talk" so the
10 No. 44168 -3 -II
officer told him he was going to start writing out questions and if the suspect wanted to stop
answering questions or to speak to an attorney he should let the officer know. Id. at 40 -41. The
suspect assented. Id. at 41.
The court determined that " rainy questioning after the equivocal assertion of the right to
counsel must be strictly confined to clarifying the suspect' s request." Id. at 39. Under this rule,
the court held that the officer' s questions were properly limited to clarifying the suspect' s
equivocal request and whether the suspect wanted to continue speaking to the police. Specifically,
the court explained:
After Robtoy made his equivocal statement regarding an attorney, Detective Dean sought clarification of Robtoy' s words. There was no further interrogation about any offense until Dean was satisfied Robtoy had no present desire to have the presence of an attorney. Further, Robtoy was reminded by Detective Dean that he would cease questioning immediately if Robtoy wanted to remain silent or speak with an attorney.
Id. at 41.
Here, the detectives complied with the requirements of Robtoy. When Baze asked if he
needed an attorney, the detectives told him that he had to be the one to make that decision. In fact,
the detectives reminded him multiple times that he could decide to have an attorney if he wished
and it was his decision to make. And, the detectives were clear that if Baze wished to have an
attorney, they would stop questioning him.
Moreover, during the course of the exchange, the detectives did not " question" or
interrogate" Baze. Rather, they answered his questions when he was attempting to clarify the
current situation. There was no substantive discussion until Baze affirmatively told them he would
continue speaking with them and signed the waiver of his rights. Prior to Baze signing the waiver,
the detectives stopped him from making substantive statements and reminded him that "[ t]hat' s
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kinda what we gotta talk about with your consent though you know and we can have a two way
conversation but we can' t do that unless you want to. It' s best you know it' s kind of a it' s kinda
of a wall between us here at this point." Ex. 2 at 11. Because the detectives did not continue
questioning Baze or take a statement regarding the assault until after Baze affirmatively waived 5 his rights, the detectives complied with the more restrictive rule articulated in Robtoy.
Therefore, as far as the effect of Baze' s equivocal request, Baze' s statements would be
admissible under either the Radcliffe rule, which does not restrict the scope of the detectives'
questioning after an equivocal request for counsel, or the Robtoy rule, which restricts the scope of
the detectives' questioning to clarifying the equivocal request. The trial court did not err in
admitting Baze' s statements.
2. Voluntariness of Statements
Baze also argues that his waiver of his right to an attorney was involuntary because the
detectives contradicted the Miranda warnings and improperly urged him to give a statement
without an attorney present. We disagree.
We examine the totality of the circumstances "` to ascertain whether the accused in fact
knowingly and voluntarily decided to forgo his rights to remain silent and to have the assistance
of counsel. "' State v. Unga, 165 Wn.2d 95, 100, 196 P. 3d 645 ( 2008) ( quoting Fare v. Michael
C., 442 U. S. 707, 724 -25, 99 S. Ct. 2560, 61 L. Ed. 2d 197 ( 1979)). Because coercive police
5 To the extent that Baze argues that the detectives' statements violated Robtoy because they misrepresented the availability of an attorney and undermined the role of having an attorney present, he is incorrect. Robtoy is concerned with the overall content of the exchange— whether
the questioning is limited to clarifying the request for an attorney. Whether the detectives' statements were improper or misleading goes to whether the detectives' statements rendered Baze' s waiver involuntary. It has no bearing on whether the restrictions in Robtoy were violated.
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activity is necessary to render a confession involuntary, " both the conduct of law enforcement
officers in exerting pressure on the defendant to confess and the defendant' s ability to resist the
pressure are important." Id. at 101. To determine whether the totality of the circumstances renders
a confession involuntary we consider:
T] he " crucial element of police coercion;" the length of the interrogation; its location; its continuity; the defendant' s maturity, education, physical condition, and mental health; and whether the police advised the defendant of the rights to remain silent and to have counsel present during custodial interrogation.
Id. (quoting Withrow v. Williams, 507 U.S. 680, 693 -94, 113 S. Ct. 1745, 123 L. Ed. 2d 407 ( 1993).
The ultimate question is "' whether [ the interrogating officer' s] statements were so manipulative
or coercive that they deprived [ the suspect] of his ability to make an unconstrained, autonomous
decision to confess. ' Id. at 102 ( quoting Miller v. Fenton, 796 F.2d 598, 605 ( 3d Cir.), cert.
denied, 479 U.S. 989 ( 1986)). A statement is voluntary "` so long as that decision is a product of
the suspect' s own balancing of competing considerations. ' Id. (quoting Miller, 796 F.2d at 605).
As an initial matter, the overall context of the interview does not support the conclusion
that Baze' s waiver of his rights was involuntary. The .time between Baze asking, " Do I need an
attorney ?" and making the decision to waive his rights is approximately 15 minutes. There are no
indications or factual findings that would raise concerns based on Baze' s maturity, education, or
health. And, Baze was not only advised of his rights twice, but he signed a document affirmatively
stating that he understood his rights. Therefore, the ultimate question is whether the detectives'
statements were so manipulative or coercive as to overcome Baze' s ability to make an
unconstrained, autonomous decision" regarding whether to waive his rights and give a statement
to the police. Id.
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Baze cites to very specific statements that the detectives made to argue that his confession
was involuntary. But we do not look at particular statements in isolation. Id. at 105. Because we
look at the totality of the circumstances, we must look at the detectives' statements within the
context of the conversation as a whole and then determine whether the detectives' conduct was so
coercive as to render Baze' s decision to give a statement involuntary. Here, the totality of the
circumstances does not support the conclusion that the statement was involuntary because ( 1) Baze
affirmatively engaged with the detectives by repeatedly asking the detectives questions, ( 2) the
detectives continued to tell Baze that it was his decision regarding whether to waive his rights, and
3) Baze' s fundamental concern was having to remain in jail and the detectives were clear that
Baze was going to remain in jail regardless of whether he gave a statement.
Baze claims that the detectives overcame his will to make an autonomous decision because
they misrepresented the availability and desirability of an attorney. Baze appears to base his
argument on a misunderstanding of the case law regarding what constitutes an improper
misrepresentation of the availability of an attorney. He relies on State v. Tetzlaff, 75 Wn.2d 649,
453 P. 2d 638 ( 1969), but Tetzlaff does not support his assertion that the detectives' explanation
regarding when an attorney would be appointed rendered his statement involuntary. In Tetzlaff,
the suspect was informed that, if he was indigent, an attorney would be appointed by the court if
he was charged. 75 Wn.2d at 650. Our Supreme Court held that the warnings were insufficient
because they informed the suspect that his right to an attorney was predicated on being charged
with a crime. Tetzlaff, 75 Wn. App. at 652.
Later, Division Three of this court distinguished the holding in Tetzlaff. In State v. Teller,
the defendant claimed that the warnings read to her were insufficient because they informed her
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that she had the right to have an attorney appointed by the court. 72 Wn. App. 49, 51, 863 P.2d
590 ( 1993), review denied, 123 Wn.2d 1029 ( 1994). Prior to questioning, the suspect was informed
that she was " entitled to have [ an attorney] appointed for you by the court without cost to you and
to have him or her present before or during questioning or the making of any statement." Teller,
72 Wn. App. at 51. The court noted that the flaw in the warning provided in Tetzlaffwas not that
the warnings stated that the attorney would be appointed by the court, but rather that, the warning
advised the suspect that the right to an attorney was conditioned on being charged. Id. at 53.
Here, the detectives did not make an improper representation regarding the availability of
an attorney. The warnings that were read to Baze properly informed Baze that he had the right to
an attorney before or during any statement. Baze was reminded multiple times that he had the
right to request an attorney. The detectives were clear that the right to an attorney had attached
and Baze could assert that right if he wished. Unlike Tetzlaff, the detectives never misled Baze
into believing that the right to have an attorney present was conditioned on some future event.
Rather, like Teller, Baze was properly informed that he could have an attorney present with him
before and during questioning. The detectives did not improperly mislead Baze about his rights
to have an attorney present.
Baze also argues that the detectives misrepresented the desirability of requesting a lawyer
lawyer tell him to that Although ill - by telling Baze that a would not make a statement night.
advised, the statement was not coercive. When Rhoades made the statement he was speaking from
his own experience, he was not giving Baze legal advice. And, there were no direct adverse
consequences that would result from Baze' s decision to request an attorney. The detectives were
clear that Baze was going to stay in jail overnight regardless of whether he gave a statement. The
15 No. 44168 -3 -II
detectives did not make any promises or threats based on whether Baze gave a statement that night.
Because nothing was conditioned on Baze making a statement that night, the detectives' statement
could not be considered so coercive it would override Baze' s ability to make an autonomous
decision about whether to waive his rights and give a statement.
Moreover, the detectives told Baze that they already determined that he was involved in
the assault. They noted that sometimes judges and prosecutors took a suspect' s honesty under
consideration when setting bail, but they did not promise that Baze would get bail or reduced
charges if he made a statement. The detectives told Baze the only benefit of making a statement
would be getting the story in his own words and making him feel better. Detectives are permitted
to use " psychological ploys such as playing on the suspect' s sympathies, saying that honesty is the
best policy for a person hoping for leniency, or telling a suspect that he could help himself by
cooperating" without rendering a waiver of rights involuntary. Unga, 165 Wn.2d at 102 ( citing
Miller, 796 F. 2d at 605).
Looking at the interview as a whole, the detectives may have engaged in some
psychological ploys, but they did not engage in coercion. Because police coercion is necessary to
render a statement involuntary, the trial court did not err in concluding that Baze' s statement was
voluntary and admissible. Id. at 100 -01 ( quoting Colorado v. Connelly, 479 U.S. 157, 167, 107 S.
Ct. 515, 93 L. Ed. 2d 473 ( 1986)).
B. MERGER/ DOUBLE JEOPARDY
Baze argues that we must vacate both his first degree assault and first degree robbery
convictions because they violate double jeopardy. Baze appears to argue that the first degree
assault conviction violates double jeopardy because it merges with the first degree robbery. He
16 No. 44168 -3 -II
also argues that his first degree robbery conviction violates double jeopardy because it merges
with the first degree felony murder conviction. Both arguments fail, and we affirm his convictions.
The double jeopardy clauses of the United States and Washington Constitutions prohibit
multiple punishments for the same offense. See e. g. State v. Adel, 136 Wn.2d 629, 632, 965 P. 2d
1072 ( 1998). The merger doctrine is a tool of statutory construction used to determine whether
the legislature intended multiple punishments to apply to particular offenses. State v. Saunders,
120 Wn. App. 800, 820, 86 P. 3d 232 ( 2004). Whether the merger doctrine implicates double
jeopardy is a question of law, which we review de novo. State v. Williams, 131 Wn. App. 488,
498, 128 P. 3d 98 ( 2006).
Baze' s claim that convictions for first degree assault and first degree robbery violate double
jeopardy has already been rejected by our Supreme Court. State v. Freeman, 153 Wn.2d 765, 778,
780 -81, 108 P. 3d 753 ( 2005) ( holding that the legislature intended to punish first degree assault
and first degree robbery separately, thus, convictions for both first degree assault and first degree
robbery do not violate double jeopardy). Therefore, Baze' s first degree assault conviction is
affirmed.
Baze also argues that his first degree robbery conviction merges with the first degree felony
murder conviction. Baze relies on In re Personal Restraint ofFrancis, 170 Wn.2d 517, 242 P. 3d
866 ( 2010), and claims that Francis is dispositive. Baze is incorrect.
Baze relies on one sentence in Francis, " The killing ` had no purpose outside of
accomplishing the robbery' and therefore the attempted robbery would merge into the felony
murder." 170 Wn.2d at 527 ( quoting Williams, 131 Wn. App. at 499). But both Francis and the
case to which it cites, Williams, involved the merger of attempted robbery and felony murder.
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Here, Baze was convicted of a completed first degree robbery and felony murder. Accordingly,
cases addressing double jeopardy in the context of completed robbery and felony murder, such as
Saunders, 120 Wn. App. 800, are applicable, not cases addressing attempted robbery and felony
murder.
In Saunders, the defendants raped and killed the victim. They also took her watch. Id. at
806 -08. A jury found the defendant guilty of felony murder, first degree rape, first degree robbery,
and first degree kidnapping. Id. at 808. The defendant argued that his robbery conviction should
merge with the felony murder conviction. Id. at 820. Saunders noted that a previous case had
declined to merge a robbery conviction with a felony murder conviction because the robbery was
separate and distinct from the murder. Id. at 822 ( citing State v. Peyton, 29 Wn. App. 701, 720,
630 P. 2d 1362 ( 1981)). Then the court in Saunders stated:
Here, although the robbery and murder may have occurred close in time and place, the other [ State v. Johnson, 92 Wn.2d 671, 600 P. 2d 202 ( 1979)] factors indicate that merger of these two offenses is unwarranted. The record shows that the defendants] committed the robbery after the murder and that they did not commit the robbery to facilitate the murder. Further, [ the victim] sustained an
independent injury from the robbery, the theft of her watch. Thus, the robbery was separate and distinct 'from the murder.
Id. at 822 -23.
Following the reasoning of Saunders, Baze' s robbery and murder convictions are also
separate and distinct. First, the robbery and the murder had independent purposes. Churchill hit
Morrow as revenge for Morrow stealing from him. The purpose of the robbery was to take
Morrow' s money. Second, the robbery resulted in an injury independent from the hit on the head
that lead to Morrow' s death —Churchill took the $ 45 Morrow was carrying. Accordingly, the
robbery and felony murder convictions are separate and do not merge.
18 No. 44168 -3 -I1
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.
We concur: