Appeal from Grays Harbor County Superior Court. Docket No: 12-1-00263-3. Judge signing: Honorable Gordon L Godfrey. Judgment or order under review. Date filed: 05/28/2013.
Thomas E. Weaver Jr., for appellant
Katherine L. Svoboda, Prosecuting Attorney, for respondent.
Authored by Lisa Sutton. Concurring: Lisa Worswick, Thomas R Bjorgen.
Lisa Sutton, J.
[188 Wn.App. 389] [¶1] Eugene V. Elkins Jr. appeals his jury trial conviction for second degree felony murder predicated on his assault of the victim. He argues that (1) the trial court erred when it denied his motion to suppress three sets of statements that he made to law enforcement officers after he asserted his right to silence or right to counsel, (2) the trial court erred when it denied his motion for a mistrial [188 Wn.App. 390] after a deputy commented on Elkins' exercise of his right to counsel and right to silence, and (3) the second degree felony murder statute, RCW 9A.32.050(1)(b), is unconstitutionally vague when the predicate felony offense is the assault of the same victim. We hold that whether the officers have scrupulously honored the defendant's right to silence and
right to counsel under Miranda  must be determined on a case-by-case basis and that there is no bright-line rule requiring law enforcement officers to fully readvise previously Mirandized suspects when reinitiating interrogation. We further hold that the trial court did not err in admitting Elkins' statements, that any comment on Elkins' right to counsel was harmless, and that the second degree felony murder statute is not vague. Accordingly, we affirm.
A. Murder, Flight, and Arrest
[¶2] At about 3:00 am on the morning of June 6, 2012, one of Elkins' neighbors in the mobile home park in which Elkins resided heard " some awful rattling and clanking" and a woman screaming from the area of Elkins' trailer. 2 Verbatim Report of Proceedings (VRP) at 273. The noise lasted for 15 to 20 minutes.
[¶3] At about 4:00 am, Elkins left a voice mail on his friend Brianne Elaine Slosson's phone asking her to contact him about something important. Approximately three and a half hours later, Slosson contacted Elkins. He first told Slosson that his girlfriend Kornelia Engelmann was dead and that Slosson should " keep [her] mouth shut." 2 VRP at 246, 248. Elkins then said that he was not sure if Engelmann was dead and told Slosson, who was a certified nursing assistant [188 Wn.App. 391], that he wanted her to come over and check on Engelmann. Slosson immediately went to Elkins' home.
[¶4] She found Engelmann laying face up on the bedroom floor; Engelmann was dead. Slosson could see that Engelmann was black and blue from the chest up. When Slosson asked Elkins if he had done this to Engelmann, he responded that he had beaten her but that she was fine when she went to bed around midnight. He also said that she must have fallen when she got up to use the bathroom.
[¶5] Elkins then left, telling Slosson to give him a 10 minute head start before she called 911 and to tell the police that he had gone to Oregon. As soon as he left, Slosson called 911. Several deputies arrived and verified that Engelmann was dead.
[¶6] That afternoon, Elkins arrived unexpectedly at a friend's house in Wapato. He told his friend that Engelmann was not alive despite his efforts to revive her, so he got scared and left. He also told his friend that he had " shoved [Engelmann] around" but that he had not hit her. 2 VRP at 283. Elkins also denied having killed Engelmann. Yakima County deputies arrived around an hour later and arrested Elkins.
[¶7] At about 3:30 PM, the Yakima County deputies advised Elkins of his Miranda rights. Elkins declined to make a statement, and the Yakima County deputies did not question him further.
B. June 6 Interview
[¶8] That evening, Sergeant Don L. Kolilis and Detective Keith A. Peterson from the Grays Harbor County Sheriff's Office arrived in Yakima. The Yakima County deputies told Kolilis and Peterson that Elkins had been advised of his [188 Wn.App. 392] rights and had not wanted to speak to the Yakima County deputies.
[¶9] Kolilis and Peterson interviewed Elkins at about 8:30 PM. Although they did not readvise Elkins of his Miranda rights, Kolilis and Peterson asked Elkins if he had been advised of these rights, if he remembered them, and if he understood those rights were still in effect. After Elkins confirmed that he recalled being advised of his Miranda rights and that he understood those rights were still in effect, Elkins agreed to talk to the deputies.
¶ 10 During this interview, Elkins told the deputies that he and Engelmann had gotten into an argument the Friday before her death because he believed that she had been flirting with another man and that this argument had escalated into " pushing, shoving and continued on." 3 VRP at 459, 493. Elkins explained that during this altercation, Engelmann scratched him and he hit her " quite a few times" with an open hand. 2 VRP at 460. When the deputies commented on the extensive bruising on Engelmann's body and asked Elkins if he had kicked her, hit her with something, or hit her with a closed fist, Elkins said that he did not want to talk to the deputies any longer and requested an attorney. The deputies ended the interview.
C. Statements during Transit and June 7 Interview
[¶11] The next day, Kolilis transported Elkins back to Grays Harbor County. During the drive, Kolilis engaged [188 Wn.App. 393] Elkins in small talk. Toward the end of the drive, Elkins told Kolilis that he wanted to talk about what had happened and about some guns he (Elkins) may have taken with him from his home. Kolilis told Elkins to wait until they arrived at the sheriff's office and they could properly advise him of his Miranda rights. After arriving at the Grays Harbor sheriff's office, being readvised of his Miranda rights, and signing a written waiver of these rights, Elkins gave a written statement.
[¶12] In his signed statement, Elkins admitted to having had a physical altercation with Engelmann on June 1, during which he struck her with a closed fist several times, knocked her down at least once, and caused " bad" bruising. Ex. 74, at 2. The next day, they were both hung over, he was scratched, and she was bruised. But neither of them complained other than to say they " felt like hell." Ex. 74, at 3. Engelmann put ice on her face. But they did not go to the hospital because Engelmann had warrants and Elkins " knew there would be trouble if we went to the hospital," and Engelmann never asked to go. Ex. 74, at 3.
[¶13] Elkins further stated that on the night before Engelmann died, they had been drinking and they had a nonphysical fight. Engelmann went into the bedroom; Elkins remained in the living room where he watched television and drank. Later, Elkins found Engelmann on the bedroom floor. After trying to administer cardiopulmonary resuscitation for " what felt like 1 hour," he realized she was dead. Ex. 74, at 4. He was frightened and did not call 911 because he " knew what it would look like." Ex. 74, at 6.
[¶14] Elkins admitted that he had contacted Slosson and told her to come over to check on Engelmann and that he [188 Wn.App. 394] had told Slosson that he " thought" he had killed Engelmann. Ex. 74, at 5. When Slosson arrived, she verified that Engelmann was dead. He then left, telling Slosson to give him a 10 minute head start. Elkins then drove to his friend's house and told his friend that Engelmann was dead. They shared a beer and the police arrived. Elkins stated that he left because he wanted time to mentally prepare himself because he knew he would be going to prison. He also stated that he regretted the drinking, fighting, arguing, and hitting, and that he wished he had died rather than Engelmann. He stated, " I truly loved her and will live with this every day for the rest of my life." Ex. 74, at 6.
[¶15] The State charged Elkins with second degree felony murder predicated on his assault
of Engelmann. The case proceeded to a jury trial.
A. Motion to Suppress
[¶16] Before trial, Elkins moved to suppress the statements he made to the Grays Harbor County deputies on June 6 and 7. Defense counsel told the trial court that Elkins was not challenging the admission of any statements he made while being transported from Yakima to Grays Harbor County because those statements were not the result of an interrogation. At the suppression hearing, the Yakima County and Grays Harbor County deputies testified as described above.
[¶17] In addition, on cross-examination, defense counsel asked Kolilis whether he had engaged in " small talk" with Elkins on the drive from Yakima to Grays Harbor County in hope that Elkins would give a statement or say something incriminating. 1 VRP at 50-51. Kolilis answered that was [188 Wn.App. 395] not his intent and that he was talking to Elkins only because it was a long drive. But Kolilis also stated, " And, you know, do--do I always hope that people come forward and be truthful? ...