No. 25687-8-II.The Court of Appeals of Washington, Division Two.
Filed: May 18, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Pierce County, No. 99-1-03044-5, Hon. Terry D. Sebring, February 4, 2000, Judgment or order under review.
Counsel for Appellant(s), E. A. Walker, Attorney At Law, 2607 Bridgeport Way W #2c, University Pl, WA 98467.
Counsel for Respondent(s), Barbara L. Corey-Boulet, Pierce County Deputy Pros Atty, County City Bldg, 930 Tacoma Ave S, Tacoma, WA 98402-2177.
ELAINE M. HOUGHTON, J.
Robert Charles Turner appeals his conviction of first degree robbery, arguing that he gave an involuntary confession, the trial court violated his speedy trial rights,[1] and the trial court improperly commented on the evidence. We affirm.
FACTS
Early in the morning of July 11, 1999, a masked man armed with a sawed-off shotgun robbed a gas station in Pierce County. Three days later, Turner walked into the gas station and began screaming at the clerk, asking her why she was telling people he had robbed the store. The clerk denied the accusation, Turner left, and the clerk called the police. A patrol officer followed Turner to a house and, after Turner parked his car, asked him to step back to the patrol car. Turner did so and the officer advised him of his Miranda[2] rights. Upon questioning, Turner denied possessing a sawed-off shotgun, but the passenger in his car told the officer otherwise.
The officer found a sawed-off shotgun in the trunk. He called Detective Ed Knutson, who gave Miranda warnings to Turner. Turner indicated a willingness to talk and he gave two taped statements.
The State charged Turner with first degree robbery (Count I), second degree unlawful possession of a firearm (Count II), and unlawful possession of a short-barreled shotgun (Count III). Testimony placed Turner in Keith McMath’s car minutes before the robbery and within sight of the gas station. Other witnesses also placed him in the car within 30 minutes after the robbery. Turner confessed to driving McMath’s car away from the gas station after the robbery. Before Turner’s trial, McMath pleaded guilty to first degree robbery with a deadly weapon sentence enhancement and first degree unlawful possession of a firearm.
On September 21, 1999, a jury found Turner guilty of second degree unlawful possession of a firearm and unlawful possession of a short-barreled shotgun, but it deadlocked on the first degree robbery charge.
The court declared a mistrial as to Count I and set retrial for November 17, 1999. On December 2, 1999, the jury found Turner guilty of first degree robbery. Turner appeals.
ANALYSIS Confession
Turner first contends that his confession was rendered involuntary by improper promises. Appellant’s Br. at 6. His argument hinges on Detective Knutson’s qualified admission that he might have promised something to Turner:
Q: Any promises?
A: No, other than maybe letting him know that whatever he told me I would tell the prosecutor, and any cooperation would be passed on, also.
Q: So you promised him that if he cooperated with you, you would try and help him out, basically?
A: I promised I would pass on information to the prosecutor.
. . . .
Q: Regarding statements that you made to him regarding speaking with the prosecutor, did you make any promises of what result would happen or anything of that nature?
A: No.
Report of Proceedings at 50-51.
To be admissible, a confession must be voluntary. Arizona v. Fulminante, 499 U.S. 279, 285, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); State v. Broadaway, 133 Wn.2d 118, 132, 942 P.2d 363 (1997). When determining whether a confession was voluntary, courts look to the totality of the circumstances, taking into account `any promises or misrepresentations made by the interrogating officers.’ Broadaway, 133 Wn.2d at 132 (citing United States v. Springs, 17 F.3d 192, 194 (7th Cir.), cert. denied, 513 U.S. 955 (1994)). But a promise by police to talk to the prosecutor on behalf of a defendant does not by itself constitute an implied promise capable of rendering a confession involuntary. State v. Putnam, 65 Wn. App. 606, 612-13, 829 P.2d 787
(1992), review denied, 122 Wn.2d 1015 (1993). The ultimate question is whether the officer’s behavior overcame the defendant’s will to resist. Broadaway, 133 Wn.2d at 132 (citing State v. Rupe, 101 Wn.2d 664, 679, 683 P.2d 571 (1984)).
Here, there is no evidence of coercion. Knutson offered to tell the prosecutor that Turner was cooperative, if he was. Precedent shows that such an offer does not rise to the level of coercive police behavior proscribed by the Fifth Amendment. See Putnam, 65 Wn. App. at 613
(promising defendant to talk to prosecutor not an implied promise of benefit for confession); State v. Gonzales, 46 Wn. App. 388, 401, 731 P.2d 1101 (1986) (promise to ask prosecutor to release defendant’s wife insufficient to render confession involuntary); State v. Forrester, 21 Wn. App. 855, 862, 587 P.2d 179 (1978) (statement that police report would go to prosecutor did not create implied promise of benefit for confession), review denied, 92 Wn.2d 1006 (1979); State v. Streeter, 67 Wn.2d 39, 41, 406 P.2d 590 (1965) (officer’s statement that charges by his department very unlikely but entire file would be forwarded to prosecutor’s office insufficient to render confession involuntary). But see State v. Setzer, 20 Wn. App. 46, 49-51, 579 P.2d 957 (promise of immunity rendered confession involuntary when coupled with assurance that defendant could not be classified as habitual criminal), review denied, 90 Wn.2d 1025 (1978).
The police told Turner nothing more than the truth anything he said would be relayed to the prosecutor and the police would tell the prosecutor whether Turner was cooperative. No implied promise of a benefit in exchange for a confession was created thereby.
Comment on the Evidence[3]
Turner further contends that that the judge commented on the evidence by instructing the jury: `An accomplice need not participate in each element of the crime. An accomplice need not share the same mental state as the principal.’ Clerk’s Papers at 74. But this is an accurate statement of the law. State v. Cronin, 142 Wn.2d 568, 578-80, 14 P.3d 752
(2000); State v. Roberts, 142 Wn.2d 471, 512-13, 14 P.3d 713 (2000). That an accomplice need not participate in each element of the crime is obvious; if the law were otherwise, there would be no need for accomplice liability. See State v. Sweet, 138 Wn.2d 466, 479, 980 P.2d 1223 (1999) (noting accomplice could be convicted of burglary and assault even though he was not in residence when crimes committed). It is equally well-settled law that an accomplice need not share the same mental state as the principal. See State v. Hoffman, 116 Wn.2d 51, 104, 804 P.2d 577
(1991) (principal and accomplice need not share same mental state) (citing State v. Guloy, 104 Wn.2d 412, 431, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986)).
The instruction accurately stated the law and the judge did not comment on the evidence by giving it. Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: MORGAN, P.J., SEINFELD, J.
(1966).