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State v. A.M.

Supreme Court of Washington, En Banc

September 12, 2019

STATE OF WASHINGTON, Respondent,
v.
A.M., a minor, Petitioner.

          MADSEN, J.

         A.M., a juvenile, appeals an unpublished Court of Appeals decision affirming her conviction for possession of a controlled substance. First, A.M. argues that it was manifest constitutional error for the trial court to admit a detention center inventory form where she signed a sworn statement indicating that a backpack, which was discovered to contain methamphetamine, was her property because it violated her right against self-incrimination. Second, A.M. argues that the affirmative defense of unwitting possession is an unconstitutional burden-shifting scheme that violates her due process rights.

         We hold the admission of the inventory form is manifest constitutional error because it violated her right against self-incrimination and warrants reversal because it is not harmless error. Because we find reversible constitutional error, we decline to consider A.M.'s due process argument and remand the case back to the trial court for further proceedings consistent with this opinion.

         FACTS

         Background Facts

         A.M. entered a Goodwill store with two other women, a juvenile and an adult, pushing a shopping cart with a backpack in it. The adult woman put two Halloween costumes in the cart, and A.M. opened the large pocket of the backpack to put the costumes in. The loss prevention officer observed the entire incident on the security cameras in the store. As the three women were leaving the store without paying for the costumes, A.M. put the backpack on her back. The loss prevention officer stopped A.M. just outside of the store. A.M. was detained and escorted to Goodwill's security room to await police officers. When police arrived, they arrested A.M. for theft.

         In a search incident to the arrest, police also searched the backpack and, in one of the smaller outer pockets, found a prescription bottle that looked to be a marijuana dispensary bottle filled with what appeared to be several little "baggies" inside. The officer believed it was methamphetamine and took the baggies for further testing. The substance was confirmed to be methamphetamine.

         A.M. was booked in the juvenile detention center. At some point after her arrest, but prior to being booked, A.M. invoked her Miranda[1] rights. A.M. was required to sign an inventory form accounting for her belongings, which read, "I have read the above accounting of my property and money and find it to be accurate. I realize that property not claimed within 30 days will be subject to disposal." Ex. Transmittal Certificate, Ex. 3. When released, A.M. signed the same form, which stated, "I have received the above listed property." Id. The backpack was listed in the inventory form as part of A.M.'s belongings.

         Procedural Facts

         A.M. was charged with one count of third degree theft and one count of possession of a controlled substance. Clerk's Papers (CP) at 54-55. The case proceeded to bench trial. At trial, the State sought to admit the detention center inventory form, which indicated the backpack was A.M.'s property. The trial court admitted the form over defense counsel's objection.

         A.M. also raised the unwitting possession affirmative defense. She testified that she had no knowledge of the methamphetamine in the backpack and that she got the backpack from the other juvenile's home. Verbatim Report of Proceedings (VRP) (Feb. 14, 2017) at 108. A.M. testified it was likely the other juvenile's or the adult woman's backpack and not hers. Id. at 107-08. The trial court rejected A.M.'s unwitting possession defense and convicted her of both counts. She was sentenced to two days of custody with credit for time served and no probation.

         A.M. appealed her possession of a controlled substance conviction. A.M. raised for the first time on appeal that the admission of the inventory form was a violation of her right against self-incrimination, and she also argued that the unwitting possession defense was a violation of due process. The Court of Appeals declined to review her Fifth Amendment claim, holding that even if there was error, it caused no prejudice to her case and, as such, she does not meet the requirements for RAP 2.5(a)(3). See State v. A.M., No. 76758-5-I, (Wash.Ct.App. July 30, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/767585.pdf. The court also rejected her due process argument.

         A.M. petitioned for review in this court on her due process claim and Fifth Amendment claim. We granted review.

         ANALYSIS

         The asserted error is reviewable under RAP 2.5

         A.M. argues that admitting the detention center inventory form violates her right against self-incrimination. Trial counsel objected to the evidence on relevancy grounds, and the exhibit was admitted. The Court of Appeals declined to review the issue because it held that A.M. failed to meet the requirements of RAP 2.5(a)(3) when she failed to show actual prejudice.

         Ordinarily, we do not consider unpreserved errors raised for the first time on review. State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988). However, manifest errors affecting a constitutional right may be raised for the first time on appeal. RAP 2.5(a)(3); In re Dependency of M.S.R., 174 Wn.2d 1, 11, 271 P.3d 234 (2012). To determine whether manifest constitutional error was committed there must be a '"plausible showing by the [appellant] that the asserted error had practical and identifiable consequences in the trial of the case.'" State v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009) (alteration in original) (internal quotation marks omitted) (quoting State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007)).

         RAP 2.5(a)(3) serves as a "gatekeeping function." State v. Lamar, 180 Wn.2d 576, 583, 327 P.3d 46 (2014). The purpose of the rule is different from actually reviewing the claimed error. Id. "The requirements under RAP 2.5(a)(3) should not be confused with the requirements for establishing an actual violation of a constitutional right or for establishing lack of prejudice under a harmless error analysis if a violation of a constitutional right has occurred." Id.

         Here, the Court of Appeals held that because the alleged error caused no prejudice, it would not review the claim. However, RAP 2.5(a)(3) requires only that the defendant make a plausible showing that the error resulted in actual prejudice, meaning there were practical and identifiable consequences at trial. See id.

         It is well settled that article I, section 9 of the Washington State Constitution and the Fifth Amendment to the United States Constitution afford a defendant the right against self-incrimination. When placing suspects in custody, police must advise them of their right to remain silent and their right to an attorney before interrogation. See Miranda, 384 U.S. at 445. Absent a valid waiver, statements obtained from an individual in custody are presumed to be involuntary and violate the Fifth Amendment. State v. Sargent, 111 Wn.2d 641, 648, 762 P.2d 1127 (1988). A person is "in custody" when her freedom of movement is restricted. Oregon v. Mathiason, 429 U.S. 492, 494-95, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). An "interrogation" is "any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (footnote omitted).

         When a defendant is placed in custody and has invoked her Miranda rights, any words or actions on the part of the police that are reasonably likely to elicit an incriminating response violate the Fifth Amendment. Although certain standard intake procedures may be required, we have held that using those procedures against a defendant's will violates the Fifth Amendment. See State v. Juarez DeLeon, 185 Wn.2d 478, 487, 374 P.3d 95 (2016). For example, in DeLeon, the defendants were asked to fill out a gang affiliation form as part of the jail's booking process. Id. at 484. At their trial, the judge admitted the defendants' statements on the form over the objection of defense counsel. Id. We held that while the questions were meant for the purpose of protecting inmates from "real and immediate threats of violence," the defendants' Fifth Amendment rights were violated by presenting those statements as evidence. Id. at 488-89.

         A.M. meets the first part of RAP 2.5(a)(3) because the asserted error clearly implicates her Fifth Amendment right. Moreover, A.M. makes a plausible showing that the error had practical and identifiable consequences at trial because the trial court admitted the evidence over the objection of counsel, albeit on different grounds. The error is manifest from the record. We thus proceed to the merits of the raised constitutional error.

         It was error to admit the inventory form

         When A.M. was arrested by police, she invoked her Miranda rights.[2] She was unquestionably in custody when she was arrested at Goodwill and transported to the juvenile detention center. Thus, any words or actions on the part of the police that were reasonably likely to elicit an incriminating response violate the Fifth Amendment. A.M. was required to sign an inventory form listing the backpack, which held the methamphetamine.[3] Above the signature lines were two statements: "I have read the above accounting of my property and money and find it to be accurate. I realize that property not claimed within 30 days will be subject to disposal" and "I have received the above listed property." Ex. Transmittal Certificate, Ex. 3 (emphasis added).

         While a standard intake form itself does not necessarily violate a defendant's Fifth Amendment rights, the signed statement on the intake form violated A.M.'s right against self-incrimination. She was clearly in custody, and signing the intake form was involuntary. At trial, the juvenile center supervisor testified that the juvenile signs the intake form after reviewing it with staff. VRP at 89 (Feb. 14, 2017). Any refusal to sign the form or disagreement with the inventory list by the juvenile would be noted on the sheet. Id. at 96. Requiring a juvenile to sign a form with that statement would be reasonably likely to elicit an incriminating response from the suspect.

         The manifest constitutional error was not harmless

         Next, we consider whether the manifest error was harmless. A constitutional error is harmless if "it appears 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002) (internal quotation marks omitted) (quoting Neder v. United States, 527 U.S. 1, 15, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)). "An error is not harmless beyond a reasonable doubt where there is a reasonable probability that the outcome of the trial would have been different had the error not occurred." State v. Powell, 126 Wn.2d 244, 267, 893 P.2d 615 (1995) (citing State v. Benn, 120 Wn.2d 631, 649, 845 P.2d 289 (1993)). "A reasonable probability exists when confidence in the outcome of the trial is undermined." Id.

         During closing arguments, when addressing the unwitting possession defense, the prosecutor stated, "We know that she signed for the backpack, indicated it was her property when she was booked in. We know that she signed for it again when she was released, even though today she has testified that it wasn't her backpack." VRP at 118-19. In essence, the prosecutor directly addressed and contradicted A.M.'s unwitting possession defense by relying on the inventory form to support the conviction. Without the admission of the intake form, the prosecutor would not have been able to use A.M.'s statements in the form to refute her unwitting possession defense.

         The State bears the burden of proving that the constitutional error was harmless. DeLeon, 185 Wn.2d at 488. Here, the State argues there is overwhelming evidence that "the property slip played no part in A.M.'s conviction." Suppl. Br. of Resp't at 5. The State points to the trial court's oral findings and lack of reliance on the property sheet, as well as the findings of fact as "verities on appeal." Id. at 4-5.

         At the conclusion of trial, the court stated:

Quite frankly, whether she removed the backpack or whether the backpack went with her from detention really was not a big factor in my case. It was only-it was that she was the only one that was possessing the backpack, and I don't find that there was unwitting possession in this matter.

         VRP (Feb. 22, 2017) at 134. While the trial judge noted it was "a close case," she "looked at a number of... things" and found that "the respondent was the only person that was putting items in the backpack, [and] she was the one that walked out with the backpack." Id. at 133-34. Thus, the State argues that their burden to prove beyond a reasonable doubt A.M. would have still been convicted is satisfied.

         But A.M. need prove only by a preponderance of the evidence the affirmative defense of unwitting possession. See State v. Deer, 175 Wn.2d 725, 735, 287 P.3d 539 (2012) (noting the affirmative defense '"ameliorates the harshness of a strict liability crime.'" (quoting State v. Bradshaw, 152 Wn.2d 528, 538, 98 P.3d 1190 (2004))). A.M. testified that the backpack was not hers and that she believed it belonged to one of the other two women who were with her "[b]ecause it came from their house" and she "[saw the two women] bring it out of their house." VRP (Feb. 14, 2017) at 108. The State relied on her property form to counter that testimony.

         Further, A.M. testified that she never looked into the outer pocket of the backpack where the methamphetamine was found, and the evidence showed only that A.M. put the costumes into the main pouch of the backpack. Id. She also testified that even though the backpack was not her property, she took it from the detention center only because "it belonged to my best friend and her family at the time." Id. at 110. When A.M. returned the backpack to her friend, she confronted her friend, asking why the methamphetamine was in the backpack. Id. A.M. testified that she never knew methamphetamine was in the bag and that she had never seen the pill bottle or the little baggies before. Id. at 111. In sum, A.M. testified that the adult female put the children's costumes into the cart and that A.M. placed the costumes into the large pocket of the backpack. Id. at 107-09. The costumes were children's costumes, and A.M. had no children. See id. at 107 (indicating the costumes were for the adult woman's children). No witness saw A.M. look into the small side pocket where the drugs were found. The only testimony about ownership of the backpack came from A.M., who said that it came from the adult female's home and that A.M. did not own the backpack. A.M. also testified that the adult female was "under the influence." Id. at 109.

         At the conclusion of trial, the judge said she did not believe A.M. "perjur[ed herself]." VRP (Apr. 11, 2017) at 157. But the only evidence in the record that reasonably contradicts unwitting possession of the methamphetamine is the admitted inventory form signed by A.M. that indicates the backpack as her property. The prosecutor referenced the fact that A.M. signed for the backpack as her own on at least two different occasions in the record. See VRP (Feb. 14, 2017) at 118-19; VRP (Apr. 11, 2017) at 149. Even though the trial court said the inventory form was "not a big factor," it did consider that evidence in making its decision. VRP (Feb. 22, 2017) at 134. Based on a review of the entire record, it is difficult to say beyond a reasonable doubt, the trier would reach the same conclusion absent the manifest constitutional error.

         We hold the admission of the inventory form was manifest constitutional error in violation of A.M.'s right against self-incrimination. As such, we reverse the lower court's decision that the admission of the inventory form was proper.

         Because we find there was reversible error here, we find delving into A.M.'s due process argument is ...


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