STATE v. WILLIAMS, 52783-5-I (Wash.App. 10-20-2003)

No. 52783-5-IThe Court of Appeals of Washington, Division One.
Filed: October 20, 2003 UNPUBLISHED OPINION

Appeal from Superior Court of Kitsap County Docket No: 01-1-01098-9 Judgment or order under review Date filed: 09/16/2002

Counsel for Appellant(s), W. David Rovang, Rovang Fong Associates, 569 Division St. Ste a, Port Orchard, WA 98366-4600.

Aaron Phillip Williams (Appearing Pro Se), Wcc Pobox 900, Shelton, WA 98584.

Counsel for Respondent(s), Justin Bailey Zaug, Kitsap County Prosecutor’s Office, Msc 35, 614 Division St, Port Orchard, WA 98366-4681.

APPELWICK, J.

Under the public safety exception to Miranda v. Arizona,[1] police may question a suspect prior to Miranda warnings if the questioning is solely for officer or public safety, and the circumstances are sufficiently urgent to warrant immediate questioning. In this appeal, Aaron Williams contends the trial court erred in applying the public safety exception and finding that his statements were voluntary. We disagree and affirm.

FACTS
Around 1:40 a.m. on July 30, 2001, Bremerton police received a report of gunfire and two males running in the vicinity of a park. When Bremerton Police Officer Clayton Schultz arrived at the scene, he saw two men run into some bushes. Moments later, Officer Mike Davis arrived with his police dog. He saw the men take off running through a park. Officer Davis pulled his car around to a park gate and saw a man running down a walking path. Davis said, `stop or I’ll send the dog.’ When the man did not stop, Davis released his dog. As the dog approached, the suspect pulled out a gun and shot the dog twice. Officer Davis radioed Officer Schultz and told him the man had a gun and had fired at his dog.

Officer Davis then unholstered his gun, turned on his flashlight, and pursued the suspect down the path. As he came around a bend, Officer Davis saw an arm pointed at him, heard gunshots, and saw a muzzle flash. He returned fire and then saw the suspect, later identified as Williams, flailing on the ground approximately fifteen yards away. Officer Davis illuminated Williams with his flashlight and kept his gun trained in his direction.

Meanwhile, Officer Schultz located the wounded dog and eventually came upon Officer Davis, who was still pointing his flashlight and gun toward Williams. Officer Davis warned Officer Schultz that Williams might still have a gun. Officer Schultz then holstered his gun and approached Williams, who was lying face down with his hands underneath him and his head pointed toward the officers. Schultz told Williams to show him his hands, but Williams did not comply. Schultz pulled Williams’ hands out from under him and handcuffed him. Schultz then noticed a gunshot wound in Williams’ side. Schultz asked Williams where his gun was. Williams replied that he threw it. Schultz asked again where the gun was, and Williams said he would show him if Schultz helped him up. When Schultz asked a third time where the gun was, Williams nodded toward a grassy area with his head. Using his flashlight, Schultz then spotted a handgun in the grass. Schultz did not give Williams Miranda warnings prior to questioning him about the gun.

The officers arrested Williams and transported him to a hospital. The police dog was transported to an animal hospital where he died from his wounds.

The State charged Williams with attempted first degree murder, attempted second degree murder, first degree assault, harming a police dog, and unlawful possession of a firearm. Prior to trial, Williams moved to suppress his pre-Miranda statements to Officer Schultz regarding the location of the gun. The court denied the motion, ruling that the statements were admissible under the public safety exception to Miranda requirements. Following a bench trial, the court acquitted Williams of the attempted murder and first degree assault charges, but found him guilty of second degree assault, harming a police dog, and unlawful possession of a firearm.

DECISION
Williams contends the court erred in admitting his statements under the public safety exception to Miranda v. Arizona. He argues that the exception is not applicable to his statements because, contrary to the trial court’s findings, the police were in no immediate danger at the time of the questioning. He points out that he was wounded and handcuffed, and that an officer’s gun was aimed directly at him. He concludes that the circumstances did not warrant immediate questioning, and that the court’s findings to the contrary are not supported by the evidence. We disagree. Police may ask questions prior to Miranda warnings if they are solely for the purpose of public or officer safety, and the circumstances are sufficiently urgent to warrant immediate questioning.[2] There must be “an objectively reasonable need to protect the police or the public from any immediate danger . . . .”[3] There is substantial evidence of such a need in this case.[4] The officers were responding to a report of gunfire and were pursuing two suspects. One of the suspects Williams shot a police dog and fired at an officer. When apprehended, he did not comply with orders to move his hands. Although Williams was wounded and handcuffed, he was not incapacitated. As Officer Schultz noted, `even in handcuffs a person has the freedom of their hands to get a hold of something if it was on his person or nearby.’ Furthermore, the second suspect was unaccounted for and could have been nearby. Officer Schultz was thus in immediate danger and had an objectively reasonable need to protect himself and other officers by locating the gun. The court properly invoked the public safety exception. Williams also challenges the trial court’s determination that his statements were voluntary.[5] The test for the voluntariness of a defendant’s statement is whether, under the totality of the circumstances, the statement was the product of coercion.[6] We consider such circumstances as the defendant’s physical and mental condition and the conduct of the police.[7] The focus is on whether the defendant’s will was overborne.[8] We review voluntariness questions for `substantial evidence in the record from which the trial court could have found the confession was voluntary by a preponderance of the evidence.’[9] With respect to Williams’ mental state, the record supports the court’s finding that he essentially bargained with the police and thus had `possession of his faculties’ sufficient to make voluntary statements. Physically, Williams was in a weakened condition. But there was no evidence that the officers took advantage of that condition. Nothing in the record suggests that they threatened or coerced Williams in any way. Officer Schultz testified that he holstered his weapon as he approached Williams. And while Officer Davis had his gun trained on Williams, he was standing some twenty feet away and left after Schultz’s first question. Moreover, there was no evidence that Williams, who was lying face down on the ground, was even aware of Davis’ gun.

Finally, the fact that the police used force against Williams immediately prior to his statements does not render them involuntary. In a factually analogous case, the Eighth Circuit reasoned as follows:

While the police did use physical force against Carroll and spray him with mace, facts that would favor him in the voluntariness analysis, the District Court, consistent with the evidence, determined that the police were only acting in response to Carroll’s attempt to resist arrest. This is not a case where the police beat a confession out of a defendant, but rather a situation where the police were required to use force to subdue a fighting suspect, and then, after the suspect was under control, asked him where they could find his gun. There is no evidence in the record to suggest that Carroll answered because he feared the police would use further force against him. Carroll’s statement was properly admitted.[10]

This reasoning is sound and applies equally here. The police shot Williams to overcome his resistance. They made no threats of further force. Nothing in the record suggests that Williams answered their questions because he feared further force. Substantial evidence supports the trial court’s determination of voluntariness.

Affirmed.

KENNEDY and AGID, JJ., concur.