State v. Grogan

195 P.3d 1017, 147 Wash. App. 511
CourtCourt of Appeals of Washington
DecidedNovember 18, 2008
Docket26511-1-III
StatusPublished
Cited by30 cases

This text of 195 P.3d 1017 (State v. Grogan) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Grogan, 195 P.3d 1017, 147 Wash. App. 511 (Wash. Ct. App. 2008).

Opinion

195 P.3d 1017 (2008)

STATE of Washington, Respondent,
v.
Clifford J. GROGAN, Appellant.

No. 26511-1-III.

Court of Appeals of Washington, Division 3.

November 18, 2008.

*1019 Dennis W. Morgan, Attorney at Law, Ritzville, WA, for Appellant.

Mark E. Lindsey, Spokane County Prosecuting Attorney's Office, Spokane, WA, for Respondent.

BROWN, J.

¶ 1 Clifford Grogan appeals his first degree child molestation conviction, contending the trial court erred in allowing evidence of his statements and child hearsay statements. Finding no abuse of discretion, we affirm.

FACTS

¶ 2 One evening in summer 2001, Sandra Holloway, Mr. Grogan's stepdaughter, was bathing six-year old M.L. and M.L.'s sister at Mr. Grogan and Harriet Grogan's home in Cusick, Washington. M.L. told Ms. Holloway, "`Pap-pa' or `Pop-pa'—`has touched me down there.'" 7 Report of Proceedings (RP) (Apr. 17, 2007) at 1276. When Ms. Holloway asked M.L. where she meant, M.L. pointed toward her vagina. M.L. also pointed toward Mr. and Mrs. Grogan. Ms. Holloway confronted Mr. and Mrs. Grogan, and then removed M.L. from the home. Ms. Holloway told Spokane Police Department Detective Kip Hollenbeck of M.L.'s statements. On November 24, 2001, M.L. and her mother, Sandra Bowyer, were found murdered.

¶ 3 In February 2003, Mr. Grogan voluntarily came in during the murder investigation for a polygraph examination conducted by Detective Douglas Orr in the Spokane Public Safety Building. Before and after the exam, Mr. Grogan was read and signed a waiver of rights form. Detective Orr told Mr. Grogan he thought he was lying. He was then interviewed by detectives without Miranda[1] warnings. The detectives told Mr. Grogan he was free to leave; Mr. Grogan agrees. Mr. Grogan's statements included his sex-offense history and thoughts of molesting M.L. Mr. Grogan did leave that afternoon after giving statements. He then learned police had seized his car.

¶ 4 In May 2006, the State charged Mr. Grogan with one count of first degree child molestation of M.L. Mr. Grogan's statements *1020 were allowed in evidence after a lengthy CrR 3.5 voluntariness hearing where custody was the sole dispute. The trial court ruled orally, but did not enter written findings. The hearing is factually developed in our analysis below. The court also held a pretrial child-hearsay hearing under RCW 9A.44.120 to determine the admissibility of M.L.'s statements to Ms. Holloway.

¶ 5 At the child-hearsay hearing, Dawn Scalise, M.L.'s grandmother, testified she had daily contact with M.L. during the spring and summer of 2001. Ms. Scalise testified Ms. Holloway returned M.L. to her after returning from the Grogan home. She testified M.L. was "rather quiet," "quieter than normal." 3 RP (Apr. 11, 2007) at 529, 538. When asked about M.L.'s capacity to tell the truth, Ms. Scalise testified M.L. was not the type of child who would tell lies, or who was prone to exaggerate events.

¶ 6 Ronald Bowyer, M.L.'s stepfather, Ms. Holloway's brother, and Mr. Grogan's stepson, testified by video deposition. Mr. Bowyer testified M.L. would make up stories, and at times, he would have to help her understand the difference between right and wrong.

¶ 7 The court ruled M.L.'s statements to Ms. Holloway admissible after considering the Ryan[2] factors and the elements of the child hearsay statute, RCW 9A.44.120. The trial court made specific findings on each Ryan factor that are detailed in our analysis below. Regarding corroboration for unavailable witnesses as required by RCW 9A.44.120, the court found sufficient: Mr. Grogan's statements to the detectives; evidence from the State regarding Mr. Grogan's prior bad acts, and Ms. Scalise's testimony that she noticed a change in M.L.

¶ 8 The jury heard the CrR 3.5-hearing evidence and the child-hearsay hearing evidence. Ms. Scalise testified during her life, M.L. referred to Mr. Grogan as both "Pop-po" and "Pop-pa." 7 RP (Apr. 17, 2007) at 1335-336. Mr. Bowyer testified that after M.L.'s funeral, Mr. Grogan told him, "I touched [M.L.] inappropriately." Pl's. Ex. 15 at 15:44:09.

¶ 9 Mr. Grogan did not call witnesses. The jury found Mr. Grogan guilty as charged. The court sentenced Mr. Grogan to life in prison without the possibility of early release as a persistent offender. He appealed.

ANALYSIS

A. Mr. Grogan's Statements

¶ 10 The issue is whether the trial court erred in ruling Mr. Grogan's statements given in response to police interrogation without Miranda warnings were admissible because the statements were not given while he was in custody.

¶ 11 The trial court did not enter written findings of fact and conclusions of law following the CrR 3.5 hearing. The rule provides the court must state in writing: "(1) the undisputed facts; (2) the disputed facts; (3) conclusions as to the disputed facts; and (4) conclusion as to whether the statement is admissible and the reasons therefor." CrR 3.5(c). Nonetheless, "failure to enter findings required by CrR 3.5 is considered harmless error if the court's oral findings are sufficient to permit appellate review." State v. Cunningham, 116 Wash.App. 219, 226, 65 P.3d 325 (2003) (citing State v. Smith, 67 Wash.App. 81, 87, 834 P.2d 26 (1992)), aff'd, 123 Wash.2d 51, 864 P.2d 1371 (1993). Here, the trial court's oral findings are sufficient.

¶ 12 We review the trial court's decision after a CrR 3.5 hearing by determining whether substantial evidence supports the trial court's findings of fact, and whether those findings support the conclusions of law. State v. Broadaway, 133 Wash.2d 118, 130-31, 942 P.2d 363 (1997). "`Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding.'" State v. Solomon, 114 Wash. App. 781, 789, 60 P.3d 1215 (2002) (quoting State v. Mendez, 137 Wash.2d 208, 214, 970 P.2d 722 (1999)). Further, "the court must determine de novo whether the trial court `derived proper conclusions of law' from its findings of fact." Id. (quoting State v. Armenta, *1021 134 Wash.2d 1, 9, 948 P.2d 1280 (1997)).

¶ 13 "The Fifth Amendment right against compelled self-incrimination requires police to inform a suspect of his or her Miranda rights before a custodial interrogation." Cunningham, 116 Wash.App. at 227, 65 P.3d 325 (citing State v. Baruso, 72 Wash. App. 603, 609, 865 P.2d 512 (1993)). Thus, "[w]hether an officer should have given Miranda

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Cite This Page — Counsel Stack

Bluebook (online)
195 P.3d 1017, 147 Wash. App. 511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-grogan-washctapp-2008.