No. 50878-4-IThe Court of Appeals of Washington, Division One.
Filed: July 14, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County Docket No: 01-1-05478-0 Judgment or order under review Date filed: 07/19/2002
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Catherine Lynn Floit, Attorney at Law, P.O. Box 27713, Seattle, WA 98165.
David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
BECKER, J.
Grin Arkanit was convicted of murder, assault and two counts of possession of a firearm. We find insufficient evidence to support the firearm conviction based on the pistol, because the washer where it was found was not shown to be in an area within Arkanit’s dominion and control. All other assignments of error are rejected and convictions related to them are affirmed. An anonymous tip to the Seattle police named Arkanit as the shooter in an incident involving shots fired into a car. Based on statements by others who had been at the scene, the police arrested Arkanit at the house where he lived with his girlfriend’s family. In a later search of the house while Arkanit was not there, the police found an assault rifle and a pistol.
The State charged Arkanit with one count of first degree murder while armed with a firearm, one count of first degree assault while armed with a firearm, and two counts of second degree unlawful possession of a firearm.
A jury found Arkanit guilty as charged. The court sentenced him to a total of 51 years and 5 months in jail. As to the two convictions for unlawful possession of a firearm, Arkanit argues insufficiency of the evidence to show that he had constructive possession of the guns found in the house he shared with his girlfriend’s family. A court considers the totality of circumstances when determining whether a defendant has dominion and control over the portion of the premises where contraband is found, sufficient to prove constructive possession. State v. Partin, 88 Wn.2d 899, 908, 567 P.2d 1136 (1977). Dominion and control over contraband in a shared residence need not be exclusive. State v. Weiss, 73 Wn.2d 372, 375, 438 P.2d 610 (1968). But mere proximity is not enough. State v. Potts, 93 Wn. App. 82, 88, 969 P.2d 494 (1998). We have not found a case holding the State proved dominion and control over a firearm found in a shared residence, in an area distinct from the defendant’s bedroom, where there is no proof the defendant owned the firearm or had handled it, or knew of its presence in the house, or was in close proximity to it at the time of seizure. See State v. Simonson, 91 Wn. App. 874, 881, 960 P.2d 955 (1998), review denied, 137 Wn.2d 1016 (1999) (defendant’s correspondence implied the guns were his); State v. Summers, 107 Wn. App. 873, 389, 28 P.3 780 (2001) (gun found inside defendant’s basement bedroom); State v. Alvarez, 105 Wn. App. 215, 19 P.3d 485 (2001) (insufficient evidence that defendant, found at a “teen hang out” apartment, had dominion and control over the bedroom where contraband was found). With these legal principles in mind, we review the evidence. A detective testified that Arkanit, while in custody, said the police would find his “artillery” if they searched his house. Arkanit further said they would find a pistol under his pillow. When the police went to search the house, the girlfriend took them downstairs to the basement bedroom occupied by herself and Arkanit. The police did not find a gun under Arkanit’s pillow.
The girlfriend showed the police an assault rifle hidden in clothes in a cupboard. When asked where the pistol was, she said, “There is only one pistol that I know about. It’s in the washer.” The police went to the washer and found a pistol hidden in it.
When the detective returned to the police station, Arkanit asked “Did you find my artillery?” The detective told Arkanit that they did not find a pistol under the pillow, but found one in the washer. Arkanit responded, “It’s all over for me. I will never get out of jail.” Arkanit’s general reference to his “artillery” is not sufficient to put him in constructive possession of the particular guns found. Likewise, his statement that “It’s all over for me” is too ambiguous to allow the inference that he was admitting the guns found were his. Nevertheless, taking all reasonable inferences from the evidence in favor of the State, we find sufficient evidence to support the conviction for possessing the rifle. In describing the location where the rifle was found, the detective variously said it was in a cupboard in the bedroom, or in a closet near the bedroom. It is a reasonable inference that Arkanit exercised dominion and control over both his bedroom and a closet nearby, and that these were not common areas. With respect to the pistol found in the washer, there is insufficient evidence of constructive possession because there is an insufficient basis for inferring that the basement washer was in an area under Arkanit’s dominion and control or that the gun was his. The conviction based on alleged possession of the pistol found in the washer is reversed. Arkanit also contends the trial court erred in admitting incriminating statements he made to the police while in custody. He contends that his statements were all made in response to questions that should not have been asked because he had invoked his right to remain silent and to have counsel provided. Once an accused asserts his right to remain silent and his right to counsel, all interrogation must cease, unless the accused himself initiates further communication, exchanges or conversation with the police. Otherwise the statements are deemed involuntary. Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Interrogation occurs through words or actions by the police which they should know are reasonably likely to elicit an incriminating response from the suspect. State v. Johnson, 48 Wn. App. 681, 685, 739 P.2d 1209 (1987); State v. Jones, 102 Wn. App. 89, 96, 6 P.3d 58 (2000). If a suspect makes an equivocal request for an attorney, the officer may ask questions, but the questions must be strictly limited to clarifying the suspect’s wishes. State v. Robtoy, 98 Wn.2d 30, 38-40, 653 P.2d 284 (1982). An equivocal request is one that expresses both a desire to invoke one’s rights and a desire to continue the interview. State v. Quillin, 49 Wn. App. 155, 159, 741 P.2d 589 (1987), review denied, 109 Wn.2d 1027 (1988). If a reasonable officer would know that the defendant had requested an attorney, the request is not equivocal. State v. Aronhalt, 99 Wn. App. 302, 307, 994 P.2d 248, review denied, 141 Wn.2d 1012 (2000).
The trial court determines the admissibility of custodial statements at a hearing held according to CrR 3.5, at which the State must prove by a preponderance of the evidence that the defendant, after being advised of his rights, knowingly and intelligently waived them. In this case, undisputed findings establish that officers arrested Arkanit at his home.
They immediately read him his rights, and he acknowledged his rights. In response to questions about why he fired the shots, Arkanit gave the officers an alibi. They took him downtown for further questioning. They read him his rights again. He agreed to talk with them. He denied involvement until the detectives played a portion of a recorded witness statement. He then agreed to tell “his side of the story” if he was allowed to see his girlfriend and child first. The officers transported him back to his home and watched from a distance while he talked to his girlfriend. Arkanit then told the detectives he had decided not to give an explanation because he believed his statement would be distorted. What happened next is set forth in challenged findings of fact 6 and 7.
The court found that the detective questioned Arkanit “solely about his concerns and offered to tape his statement to avoid misunderstandings”, and “Arkanit then continued to ask questions.” The rest of the findings, which are undisputed, describe the incriminating statements Arkanit made in conversations with the officer that grew out of the questions Arkanit asked. The trial court concluded that Arkanit’s statements were voluntary and that he himself initiated conversations with the police because he was curious about what was going to happen to him. Arkanit argues that the challenged findings distort the testimony of the arresting officer who was the only witness at the CrR 3.5 hearing. The officer testified that Arkanit, after being allowed to speak with his girlfriend following the arrest, said “that he had decided not to tell us at this time his side of the story, what had happened.”[1] His testimony continued:
Q. Now, did you take that statement to mean that he no longer wanted to talk to you at all?
A. No. I never felt that that was the intent of his comment.
Q. Did he say anything else, continuing the conversation? In other words, after he said that to you, did he tell you anything else before you had a chance to speak again?
A. Yes. He was asking us what was going to happen.
According to the officer, Arkanit explained that based on past experience he was concerned that any truthful statement he made would be misinterpreted and then misused against him. The detective said he responded by offering to tape Arkanit’s statement: “Again, he told me that he had some concerns about how this statement would be used against him. I told him that if it was tape-recorded, that there should be no misunderstanding as to what was said.” The detective continued:
Then we started talking about the fact that his friends were talking to us in regards to the possibility of his act being a self-defense act. So, we talked about it a little bit more.
He said at one point that it was all over for him, that it didn’t really make any difference what he said, that he was an Asian gang member with tattoos all over him, that the victim was white, and that he was going to get convicted regardless of what he said. `
[State]: Did he also talk, at that point, about getting a lawyer or talking to a lawyer?
[Detective]: Yes. He also said that he was not real good with words, and that perhaps it would be better for him to let his lawyer to do the talking.
[State]: After he made that comment, did he continue to speak? Did he ask you some questions at that point?
[Detective]: Yes. Yes, he did. Actually, he asked me what’s going to happen now. I told him that we were going to serve a search warrant at his house, and that he was going to be booked in the King County Jail after we got done serving the search warrant.
Following this discussion, Arkanit eventually made incriminating statements.
The officer’s testimony is substantial evidence supporting the challenged findings. The testimony also confirms that the interview procedure was consistent with Miranda. Arkanit contends that he unequivocally invoked his right to remain silent at the beginning of the interview when he said he had decided not to tell the police his side of the story. But the officer did not think Arkanit was invoking his right to remain silent. This was objectively reasonable because Arkanit coupled his statement with a question about what was going to happen to him. Because Arkanit did not invoke his right to remain silent, it was not a Miranda violation when the officer went on talking to Arkanit about how his friends were saying he might have acted in self-defense. Arkanit also contends he unequivocally requested an attorney when he said “perhaps” it would be better for him “to let his lawyer do the talking”. But the trial court’s contrary conclusion was proper based on the testimony that when the subject of a lawyer came up, Arkanit continued to ask what was going to happen to him. The officer answered the questions but did not continue interrogation in the sense of trying to elicit incriminating statements. It was Arkanit who continued to ask questions, thereby initiating further communication with the detective. At a later point, when Arkanit talked to his brother and told the officer his family was advising him not to talk to police, the conversation ended. We conclude the trial court properly admitted Arkanit’s statements to the police.
Affirmed in part, reversed in part.
COX and BAKER, JJ., concur.