State v. Coates

735 P.2d 64, 107 Wash. 2d 882, 1987 Wash. LEXIS 1053

• Court: Washington Supreme Court
• Decided: April 2, 1987
• Docket: 51401-1
• Status: Published

Opinions

Dore, J.

Steven Kenneth Coates appeals his conviction of assault in the third degree. We hold that (1) the trial court properly denied defendant’s motion to suppress evidence of a search on the basis the warrant affidavit set forth sufficient facts, independent of an illegally obtained statement, to afford the issuing magistrate probable cause, (2) the State does not have the burden of disproving a defendant's voluntary intoxication, and (3) evidence of voluntary intoxication cannot be used to negate the mental state of criminal negligence.

The conviction is affirmed.

Facts

At approximately 11:30 p.m. on September 15, 1984, as Matt Long drove home from his job as a Hanford patrolman, he observed a blue Thunderbird strike another automobile. This second car pulled to the side of the road, but the Thunderbird continued; the officer followed the Thunderbird. Approximately a half mile farther, the Thunderbird's engine died, and it also pulled off to the side of the road. The officer stopped his vehicle behind the car. The defendant exited the driver's side and walked toward the officer's vehicle.

At this juncture, Long identified himself as a police officer and told defendant that he should return to the accident scene. Defendant replied that he was a Navy corpsman and could help if anyone were injured. Defendant returned to his car, spoke briefly with his passenger Dana Soderquist, and then agreed to walk back to the scene of the accident.

As they approached the scene, the officer and defendant observed a police vehicle with emergency lights flashing. Defendant stared at the lights for a few moments, then said that he would not return to the scene. By this time Officer Long had come to question defendant's mental stability, so he agreed that defendant could return to his own car. As they neared the officer's truck, the defendant stabbed Officer Long twice in the back, and then returned to his car.

The state trooper, who responded to the accident, found Officer Long. Long identified the defendant as the person who had stabbed him. Subsequently defendant and Soder-quist were arrested and searched. Although a knife was discovered on the person of Soderquist, the officers did not find the knife used by defendant in the assault. Detective John Hodge of the Benton County Sheriff's Department sealed defendant's car with evidence tape, and the car was towed to the sheriff's office where it was impounded.

Detective Hodge returned to the jail and, after advising defendant of his rights, questioned him about the assault. Defendant, who was obviously intoxicated, said he could not believe anyone could have been stabbed. Replying to the detective's question as to what had happened, the defendant said that he and the officer fell.

Detective Hodge asked the defendant to take a Breathalyzer; defendant refused stating he wanted to speak to an attorney first. After speaking to his attorney, defendant refused to answer any further questions. The defendant was then returned to his cell.

Shortly thereafter, the state trooper pursuant to his investigation of the accident and DWI charge contacted defendant. The state trooper also requested defendant to take a Breathalyzer test. At first Coates refused, but later agreed. The Breathalyzer test, administered over 4 hours after the accident and assault, showed defendant as having a blood alcohol level of .16 percent.

Benton County Deputy Sheriff Mark Mann was present during the trooper's administration of the test. Apparently unaware defendant had invoked his right to an attorney, Deputy Mann questioned him about the assault. Defendant stated that the knife used in the assault was underneath the front seat of the car.

Deputy Mann then advised Detective Hodge that defendant had revealed the location of the weapon used in the assault. Detective Hodge prepared an affidavit for a search warrant, which read in pertinent part:

As a result of [the described traffic] accident, an off-duty Kennewick Reserve Officer stopped to contact the above suspect vehicle. In this contact the . . . Officer was in contact with the driver, one Steven K. Coates. As a result of that contact the . . . Officer was stabbed twice in the back. Based on a statement given by the suspect, Coates, to Deputy Mann . . . the knife used in assault has been placed under the seat of the 1981 blue Thunderbird.

Based on a statement ... by the passenger/witness, one Dana R. Soderquist, that after the contact between suspect Coates and the victim . . . Coates re-entered the vehicle and . . . remained in the vehicle . . . until arrested by officers. In a search incident to arrest, suspect Coates was not found in possession of any knives.

Also, said affiant was told by witness, Soderquist, that ... he (Soderquist) saw suspect (Coates) in possession of a switchblade/spring operated Stelletto [sic] type knife [that day].

(Italics ours.) Exhibit 2.

The following morning Detective Hodge obtained a search warrant for defendant's impounded vehicle. A knife with bloodstains matching Long's blood type was found in the vehicle.

Defendant was then charged with one count of second degree assault, and the prosecutor sought to enhance defendant's sentence under the new deadly weapon statute, RCW 9.94A.125. Defendant moved to suppress the evidence of the knife on the ground that it had been obtained as fruit of his illegally obtained statement. The trial court denied the motion in part because the court believed probable cause existed. The trial court also held that, in any event, the inevitable discovery exception to the exclusionary rule applied, rendering the knife admissible even if it was the product of an illegal search and seizure.

At trial Long testified to the circumstances of the assault. The subject knife was admitted into evidence. Defendant denied all wrongdoing, testifying that he could not remember the hit-and-run incident or the assault. Defendant stressed that he had consumed a great deal of alcohol that evening.

Upon defense counsel's request, the trial judge instructed the jury on the "intoxication defense" and on the State's burden of proving that defendant's intoxication did not prevent the defendant from forming the particular requisite mental state. Over defense counsel's objection, however, the trial judge instructed the jury that this defense applies only where the mental state is intent, knowledge, or recklessness. The trial judge specifically precluded the jury from considering Coates' intoxication in determining whether he was guilty of the lesser-included offense of third degree (negligent) assault.

The jury found defendant not guilty of second degree assault, but guilty of assault in the third degree. Under the new sentencing act, a deadly weapon finding does not enhance a sentence for this latter offense (see RCW 9.94A-.310), so the jury was not asked to answer the deadly weapon special verdict form.

Defendant appealed his conviction directly to this court.

Validity of Search Warrant

The search warrant for defendant's car was obtained on the basis of an affidavit which set forth information he provided after he invoked his right to remain silent. The State concedes this information was illegally obtained. See Michigan v. Mosley, 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321 (1975). Defendant argues that because the information was illegally obtained, it should be suppressed. The issue presented is whether this court should adopt the "inevitable discovery" rule recently articulated by the United States Supreme Court in Nix v. Williams, 467 U.S. 431, 81 L. Ed. 2d 377, 104 S. Ct. 2501 (1984). Defendant believes the search can be upheld only under the inevitable discovery rule, which he contends is inconsistent with this court's interpretation of Const, art. 1, § 7.

Defendant's reasoning is incorrect. The inevitable discovery rule enunciated in Nix is a means of determining whether illegally seized evidence should be admitted notwithstanding the exclusionary rule. The first issue in this case, however, is whether defendant's knife was illegally seized. If we conclude the knife was legally seized, we need not decide the propriety of the inevitable discovery rule.

The alleged illegality in this case occurred when officers questioned defendant after he invoked his right to remain silent. If the warrant had been obtained on that basis alone, it would have been completely defective. However, a search warrant is not rendered totally invalid if the affidavit contains sufficient facts to establish probable cause independent of the illegally obtained information. See United States v. Christine, 687 F.2d 749, 758 (3d Cir. 1982) (involving reduction of the overly broad portions of a search warrant); United States v. Fitzgerald, 724 F.2d 633 (8th Cir. 1983), cert. denied, 466 U.S. 950 (1984).

In State v. Cockrell, 102 Wn.2d 561, 689 P.2d 32 (1984), this court specifically relied upon Christine to uphold a challenged search warrant. Cockrell, at 570. In Cockrell, a warrant was issued for the search of the defendants' property, and all persons, vehicles and buildings in the area. The trial court found the warrant affidavit insufficient to establish probable cause to search the defendants' residence, outbuildings, and any persons on the property. Cockrell, at 569. On appeal, the defendants challenged the sufficiency of probable cause to search the real property itself, arguing that the valid portions of the warrant were not severable from the invalid portions. Cockrell, at 570. This court disagreed, holding that although insufficient probable cause existed to search certain buildings or persons on the defendants' property, this defect did not invalidate that portion of the warrant supported by probable cause. Cockrell, at 571.

This court employed a similar method of analysis in State v. Cord, 103 Wn.2d 361, 693 P.2d 81 (1985), where a defendant challenged a warrant affidavit alleging a material omission or misrepresentation. In Cord, this court adopted a rule enunciated in Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), which requires a hearing to determine the validity of a defendant's allegations that the warrant affidavit contains a false statement. Under Franks, if a defendant establishes his allegations by a preponderance of the evidence, the defective statement is stricken from the affidavit. If, without the defective statement, the affidavit fails to support a finding of probable cause, the warrant is void and the evidence must be excluded. Franks v. Delaware, supra. Accord, State v. Cord, supra. On the other hand, "where probable cause is established independently of the . . . challenged statements," the warrant can be upheld without conducting a hearing. State v. Casal, 103 Wn.2d 812, 820-21, 699 P.2d 1234 (1985).

Read together, Cockrell, Cord and Casal support the proposition that the search warrant challenged in this case can be upheld despite the exclusion of defendant's illegally obtained statement if the remaining information in the warrant affidavit independently established probable cause to believe the weapon was in his car. This proposition does not run afoul of the court's stated view that Const. art. 1, § 7 serves to protect personal privacy rights, rather than curb governmental actions. State v. White, 97 Wn.2d 92, 110, 640 P.2d 1061 (1982).

The question is whether probable cause existed to believe the knife used in the assault was in defendant's car, independent of his illegally obtained statement. The warrant affidavit stated: (1) the victim was stabbed twice as a result of his contact with defendant; (2) after the stabbing, defendant returned to his car, where he remained until his arrest; (3) no knife was found on defendant's person at the time of his arrest; (4) defendant had been in possession of a knife earlier that day.

A reviewing court accords great deference to the issuing magistrate's determination of probable cause. State v. Cord, 103 Wn.2d at 366. From the foregoing information, a reasonable person could conclude that the knife with which defendant stabbed the victim probably could be found in defendant's car. Therefore, the probable cause requirement for the issuance of a warrant was satisfied. See State v. Cord, supra at 365. Because the warrant was supported by probable cause, we find that no illegal search and seizure occurred, and the knife was properly admitted. We affirm the court's denial of defendant's motion to suppress.

Voluntary Intoxication

The second issue is whether voluntary intoxication is an affirmative defense which requires the State to disprove defendant's voluntary intoxication beyond a reasonable doubt.

The voluntary intoxication statute, RCW 9A.16.090, provides:

No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his condition, but whenever the actual existence of any particular mental state is a necessary element to constitute a particular species or degree of crime, the fact of his intoxication may be taken into consideration in determining such mental state.

RCW 9A.16.090 states that voluntary intoxication does not make an act "less criminal", while on the other hand the statute states that intoxication "may be taken into consideration" by the jury in determining whether the defendant acted with the requisite mental state. These provisions indicate how the statute is to be employed. Evidence of voluntary intoxication cannot be employed to make the act "less criminal". This means that such evidence cannot form the basis of an affirmative defense that essentially admits the crime but attempts to excuse or mitigate the actor's criminality. Rather, evidence of voluntary intoxication is relevant to the trier of fact in determining in the first instance whether the defendant acted with a particular degree of mental culpability. The voluntary intoxication statute allows the trier of fact to consider the defendant's intoxication in assessing his mental state; the statute does not require that consideration to lead to any particular result. In this sense the statute describes the manner in which a particular type of evidence is to be employed, in much the same way as neutral instructions describe the use of inferences or circumstantial evidence.

The State always has the burden of proving the defendant acted with the necessary culpable mental state. Generally, evidence of intoxication is relevant to this question, but it is inaccurate to think of intoxication as forming some element that the State must negate, just as it would be erroneous to hold that the State has the burden of proving or disproving circumstantial evidence.

The defendant's reliance on State v. Acosta, 101 Wn.2d 612, 683 P.2d 1069 (1984) and State v. McCullum, 98 Wn.2d 484, 656 P.2d 1064 (1983) is misplaced. Both McCullum and Acosta deal with the manner in which a defendant's claim of self-defense must be presented to the jury. McCullum holds that the State has the burden of proof on that issue and that it is constitutional error to instruct the jury to the contrary. Acosta holds that, in evaluating the trial court's instructions on this issue, "the test is whether the jury was informed, or could understand from the instructions as a whole, that the State bears the burden of proof on self-defense." Acosta, at 622. Under Washington law, an act done in self-defense is lawful. RCW 9A.16.020, .030. If the jury finds the claim of self-defense to be meritorious, it should find the defendant not guilty. Since there is, therefore, some concrete result to be obtained by proving or disproving a claim of self-defense, it makes sense to tell the jury that one party or the other has the burden of proof on this issue. As recently stated in State v. Fuller, 42 Wn. App. 53, 55, 708 P.2d 413 (1985), review denied, 105 Wn.2d 1008 (1986):

An instruction on burden of proof similar to the one given on self-defense need not be given because the toxic effect of a drug upon a person's capability of acting knowingly is not a legally recognized defense. A criminal act committed by a voluntarily intoxicated person is not justified or excused. RCW 9A.16.090. Intoxication may raise a reasonable doubt as to the mental state element of the offense, thus leading to acquittal or conviction of a lesser included offense, but evidence of intoxication does not add another element to the offense. Thus the jury was correctly instructed in the language of RCW 9A.16-.090 as follows:

Intoxication. No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his condition, but whenever the actual existence of any particular mental state is a necessary element to constitute a particular species or degree of crime, the fact of his intoxication may be taken into consideration in determining such mental state.

That [defendant] knowingly committed the act is just one of several facts the State had to prove and, but for the statute, RCW 9A.16.090, the particular evidence of intoxication need not be singled out for special treatment. See State v. Rice, 102 Wn.2d 120, 683 P.2d 199 (1984).

It is unclear how either party can logically be said to have the ultimate burden of proof under RCW 9A.16.090. Also, there does not seem to be any way to convey the burden of proof concept to the jury without implying that intoxication is something the jury must, rather than may, consider. Finally, imposing a burden of proof as to intoxication would seem to ignore the fact that intoxication is not an all-or-nothing proposition. A person can be intoxicated and yet still be able to form the requisite mental state, or he can be so intoxicated as to be unconscious. Under RCW 9A.16.090, it is not the fact of intoxication which is relevant, but the degree of intoxication and the effect it had on the defendant's ability to formulate the requisite mental state. Thus, an instruction which requires one party or the other to prove or disprove the fact of intoxication would be incomplete at best.

In summary, intoxication is not a "defense" to a crime. Evidence of intoxication may bear upon whether the defendant acted with the requisite mental state, but the proper way to deal with the issue is to instruct the jury that it may consider evidence of the defendant's intoxication in deciding whether the defendant acted with the requisite mental state. See WPIC 18.10.

Criminal Negligence

Having set forth the proper interpretation of the voluntary intoxication statute, we now turn to how evidence of voluntary intoxication relates particularly to "criminal negligence" as that term is now defined.

When the Legislature adopted the new criminal code, it replaced the concept of general and specific intent with four levels of culpability: intent, knowledge, recklessness, and negligence. RCW 9A.08.010; see State v. Allen, 101 Wn.2d 355, 359, 678 P.2d 798 (1984). At the same time, the Legislature amended the intoxication statute so as to refer to "particular mental state" rather than "purpose, motive, or intent." Laws of 1975, 1st Ex. Sess., ch. 260, § 9A.16.090.

Criminal negligence is defined as a person's "[failure] to be aware of a substantial risk that a wrongful act may occur and his failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable man would exercise in the same situation." RCW 9A.08.010(l)(d). Criminal negligence is the requisite mental state in the crime of assault in the third degree. See former RCW 9A.36.030(b).¹ Because this mental state is based on a reasonable person standard, evidence of defendant's voluntary intoxication cannot work in any way to negate or obviate the mental state. Because of his intoxication, a particular defendant may not act with intent or knowingly inflict grievous bodily harm. Nonetheless, if a reasonable person would have avoided the wrongful act, and the defendant's failure to do so is a gross deviation from this reasonable course of conduct, the defendant has acted with criminal negligence.

In the present case, the "wrongful act" was the stabbing. Defendant's claimed reason for failing to be aware that the victim was being stabbed was evidently defendant's own intoxication. A reasonable person would not have stabbed the victim, and defendant's action was a gross deviation from the reasonable course of conduct. Consequently defendant was criminally negligent despite his intoxication. This is the proper interpretation to be given the definition of criminal negligence. The trial court did not err in precluding the jury from considering voluntary intoxication as a defense to the charge of third degree assault.

Conclusion

1. We affirm the trial court's denial of defendant's motion to suppress evidence;

2. We hold that the trial court's instructions appropriately precluded the jury from considering intoxication as a defense to the charge of third degree assault; and

3. We affirm the defendant's conviction.

Dolliver, Andersen, Callow, and Durham, JJ., concur.

1 RCW 9A.36.030 in effect at the time of the incident was subsequently repealed by Laws of 1986, ch. 257, § 9.