Opinion
No. 59723-0-I.
March 30, 2009.
Appeal from a judgment of the Superior Court for King County, No. 04-1-07307-0, Julie A. Spector, J., entered March 12, 2007.
Affirmed by unpublished opinion per Agid, J., concurred in by Grosse and Ellington, JJ.
UNPUBLISHED OPINION
Wilber Sorto appeals his convictions for first degree premeditated murder and unlawful possession of a firearm. He contends that the trial court violated his confrontation rights by admitting statements of a nontestifying witness, there was insufficient evidence of premeditation, and his statement to detectives should have been suppressed. The challenged witness statements were either not testimonial or were elicited and invited by Sorto, premeditation was established by evidence that multiple shots were fired at the murder victim, and Sorto waived his Miranda rights by initiating conversation with detectives after he refused to sign a waiver. We therefore affirm.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
FACTS
On the afternoon of October 4, 2004, Seattle police officer Chris Hairston received an urgent 911 dispatch to a reported shooting at 845 S. Cloverdale in Seattle. Hairston was already in the area and arrived at the scene 20 seconds later. He found 18 year old Antonio Pinto lying on the ground, still alive but bleeding from gunshot wounds to his head.
A man standing nearby, Saul Salazar, told Hairston that he was the 911 caller and described the shooter. Hairston broadcast the description to other officers. Salazar also told Hairston that he saw the shooter fire several shots at Pinto as he was trying to run away and the shooter then ran away in the opposite direction. Pinto was taken to the hospital while Hairston and other officers secured the scene. They found five fired .25 caliber cartridge casings and a cell phone on the ground near where Pinto's body was found.
Pinto died at the hospital that evening. According to the autopsy results, Pinto had been shot three times: once in the back and twice in the head. The pathologist who conducted the autopsy observed gunpowder burns called "stippling" around the entrance wounds on Pinto's head, indicating that these shots were fired from a distance of only 6 to 24 inches away. There was no stippling around the entrance wound on the back, indicating that this shot was fired from a greater distance. One of the bullets that was shot into Pinto's head was the fatal wound, striking the brain. All three bullets recovered from Pinto's body during the autopsy were .25 caliber bullets.
Seattle homicide detectives Al Cruise and Russ Weklych were assigned to investigate the case. Shortly after the shooting, they interviewed Salazar at the scene. He described the shooter to them, noting that the "most prominent feature was his teeth," which were "quite protruding" and "what appeared to be an overbite." He also described the gun the shooter had used.
Cruise examined the cell phone found at the scene and, with a warrant, got the phone's subscriber information from Cingular Wireless. According to Cingular's records, Karla Sorto was the account subscriber, and she had called the customer service line the day after Pinto's murder to request a new phone for this account. Cingular's records also showed that service on that phone was suspended because it had been reported lost or stolen. Cruise then contacted Karla Sorto, and she verified that she was the subscriber to that phone and that her brother, Wilber Sorto, had been using it at that time. Karla also confirmed that she reported the phone as lost when her brother told her that he had lost it. Cruise then obtained a photograph of Sorto and noted that he had "predominant and large" front teeth. He showed Salazar a montage that included this photograph, and Salazar identified Sorto as the one who most resembled the shooter.
To avoid confusion, Wilber Sorto will be referred to as "Sorto," and Karla Sorto will be referred to as "Karla."
On October 14, the detectives executed a warrant at Karla's house. Sorto was no longer staying there, and Karla and other family members did not give any information on his whereabouts. But Karla later drove to Southcenter Mall to meet Sorto at his request and gave him some belongings from the house. Sorto arrived at the mall in white van with another Hispanic male Karla did not recognize. According to Karla, she did not tell Sorto that police searched the house and were looking for him.
Shortly after, on October 18, in an unrelated incident, federal agents Rodney Noe and Paul Moore were conducting surveillance of an apartment in Federal Way as part of a federal fraud investigation by Immigration and Customs Enforcement. They saw a white van drive into the parking lot and stop nearby. Sorto was a passenger in the van. The agents got out of their vehicle, and Sorto and the driver got out of the van. The agents then walked to the pathway that led to the apartment under surveillance, and Sorto and the driver began walking toward them. The agents were in civilian clothing at the time and approached Sorto and the driver to determine whether they were involved with the apartment under surveillance. The driver told them they were going to another apartment, but when the agents watched them walk away, they did not head toward the apartment or the van. Sorto was also walking backwards "keeping his eye on" them.
The agents then became concerned that their surveillance was being compromised and decided to identify themselves. Noe showed his badge and identified himself as a police officer in both English and Spanish. When Sorto continued walking backwards, Noe told him in Spanish, "Police, don't move," but he turned around and began running away. Noe ran after him and attempted to grab him when Sorto pulled out a gun, pointed it in Noe's face, and shouted, "don't fucking move" in English. Noe then dove to the side out of the way and grabbed his own gun, but when he got up, he saw Sorto running away. He notified Moore and other agents, but Sorto was not apprehended.
Federal Way police investigated the incident. Both agents described Sorto as having prominent front teeth. Federal Way detectives seized the white van and found that it was registered to Leonel Cortez, who leased an apartment at that complex. Police then searched that apartment with a warrant and found a box of .25 caliber ammunition, a holster, and several pieces of identification for both Lionel Cortez and Wilber Sorto.
The day after this incident, Cruise heard a news report about it that included a description of the suspect as a "Hispanic male with bad teeth." Suspecting that Sorto was responsible for the shooting, Cruise contacted Federal Way police and gave them a picture of Sorto to include in a montage to be shown to the federal agents. Both agents eventually selected Sorto's picture from the montage.
Weklych also searched the Federal Way apartment again and found a .25 caliber semiautomatic pistol in the bedroom closet, which was not discovered by the Federal Way detectives during the first search. The gun was loaded with six rounds in the magazine and one in the chamber. According to forensic tests, the gun had fired the three bullets recovered from Pinto's body and had ejected the five shell casings left behind at the murder scene. The box of .25 caliber ammunition found by the Federal Way detectives was the same brand and style as those fired at Pinto, and there were 12 cartridges missing from the box. This was the same number as the total number of casings found at the murder scene (five) and cartridges found in the gun (seven).
On October 23, 2004, Cruise and Weklych learned that Sorto had been arrested in Los Angeles and was being held in federal custody. The next day they flew to Los Angeles to interview Sorto. Cruise read Sorto his Miranda rights aloud in English while Sorto followed along on a form written in Spanish. Sorto acknowledged that he understood his rights, but refused to sign the waiver. He then said that he did not want to talk about anything, but would listen to what the detectives had to say.
Cruise then told Sorto that they were there to talk about what happened on Cloverdale, and Sorto said, "what happened on Cloverdale[?]" When Cruise said that Sorto dropped his cell phone at the scene of Pinto's murder, Sorto laughed and said, "shit happens." Cruise also asked Sorto about assaulting the federal agents, and he admitted he was there, again saying, "[s]hit happens." Cruise then suggested it might be legally beneficial to Sorto to explain what happened with Pinto and Sorto responded, "[W]ell, I'm fucked either way, whether I tell or not." When Cruise suggested that perhaps Pinto disrespected him, Sorto agreed that Pinto was "a piece of shit." Cruise also told Sorto he did not believe that Sorto was "psycho," and Sorto replied, "[N]o, I ain't no psycho, I never [hurt] anybody that was innocent. I don't fuck with innocent people." Eventually, Sorto told them he was tired and wanted to go back to his cell, and the detectives ended the interview.
The State charged Sorto with one count of first degree murder with a firearm enhancement and one count of second degree unlawful possession of a firearm. Despite the State's attempts to secure his presence with a material witness warrant, Salazar did not testify at trial. But testimony about his involvement was elicited by both the State and Sorto during examination of the investigating police officers. The jury found Sorto guilty as charged. The trial court sentenced him to the high end of the standard range.
Facts Relating to Trial Testimony About Salazar's Statements
The first mention of Salazar's involvement in the investigation was during the testimony of the State's first witness, Hairston, the officer who first responded to the scene. On direct examination, Hairston testified that as soon as he got out of his car, Salazar was there and told him he was the one who called 911. The State did not question him any further about Salazar or any statements Salazar made.
But on cross-examination, Sorto asked Hairston if he spoke with Salazar, if Salazar gave a description of the shooter, and what that description was. Hairston testified that Salazar described the shooter as Hispanic, 18-20 years old, wearing a blue sweatshirt and blue pants, 5'9," and skinny. Sorto also asked Hairston if Salazar appeared to be "excited" and "shaken up," and Hairston responded that he was. On redirect examination, the prosecutor asked if Salazar told Hairston what he had observed and what Salazar told him. Sorto objected as hearsay, but the court overruled the objection and allowed it as an excited utterance. Hairston then testified that Salazar told him he saw two people walking down the street together, that Pinto took off running suddenly, and that the suspect followed him, fired several shots at him, and then ran off in the opposite direction. After Hairston testified, the prosecutor informed the court that the State would have to execute a material witness warrant to secure Salazar's presence and he would not be testifying that day as scheduled.
The next day of trial, Cruise testified on direct examination that he relied on the description Salazar provided and the prosecutor asked what the description was. Sorto objected, but the court overruled the objection, stating: "It goes to identification. It's not hearsay." Cruise then testified that Salazar described the gun and told him how many shots were fired at Pinto. He also testified that he showed Salazar a montage and the prosecutor asked if he made a selection. Sorto objected as hearsay, but the court ruled it could be answered without hearsay. Cruise then answered, "Yes." He also stated that the selection "impact[ed] the manner in which [he] conducted [the] investigation." Sorto did not object.
Outside the jury's presence, the court described for the record a sidebar discussion about Cruise's reference to Salazar's description of the shooter. The court acknowledged that it ruled that it went to identification on a good faith belief that Salazar would testify. But the court also noted that Sorto contended there was no good faith belief because the State could not say definitively either way whether Salazar would testify. Thus, the court ruled that "it would seem inappropriate at this juncture to let the definition — the description [from] Mr. Salazar be read to the jury through Detective Cruise for confrontation purposes."
The State then called Weklych to testify and, during direct examination, asked about Cruise's interview of Salazar. Weklych testified that Salazar provided a description that included "some unique details" about the shooter's appearance and that he also provided a description of the gun, which later proved to be accurate. Sorto did not object to this testimony.
Due to various scheduling issues, the remainder of Weklych's testimony was delayed until January 17, 2007. Before the court resumed Weklych's testimony, the State offered a proposed curative instruction striking Salazar's statements because he would not be testifying. That instruction stated:
During trial several out-of-court statements made by Saul Salazar were admitted. Mr. Salazar did not testify at trial, thus, any out-of-court statement made by him is stricken. You are not to consider any of his out-of-court statements during your deliberations.
Sorto objected, and the court ruled that it would take up the issue later.
Weklych then continued with his testimony and on cross-examination, Sorto asked him about Salazar's description of the shooter. Specifically, he asked Weklych whether Salazar described the suspect as having a "buzz" haircut and whether Salazar noticed any tattoos on the suspect. Weklych testified that Salazar said the shooter had a buzz haircut, but did not mention any tattoos. Sorto then asked Weklych to confirm that Salazar's description of the gun matched the one he later found. Sorto also asked about Salazar's montage pick, and Weklych testified that when Salazar made his pick, "it wasn't 100 percent" and that Salazar said, "this is the person that looks most like the individual."
On re-direct examination, the prosecutor asked Weklych about Salazar's description of the shooter's teeth and he testified that Salazar said that the "most prominent feature was his teeth, quite protruding and noticeable[,] what appeared to be an overbite." The prosecutor also asked about Salazar's description of the gun, and Weklych testified that he described it as a silver semiautomatic pistol. The prosecutor then asked about Salazar's description of the shooter's clothing, and Weklych testified that he described the shooter as wearing a blue baggy sweatshirt and black baggy pants. Sorto did not object to any of this testimony. Weklych further testified that the photograph of Sorto he had matched Salazar's description. Sorto objected, contending that it "calls for conclusion with respect to match," but the court overruled the objection.
On re-cross examination, Sorto asked again about Salazar's description of the shooter's teeth, and Weklych testified that Salazar said that the "front upper teeth were straight and white but protruding out at an angle like an overbite." Sorto also asked about Salazar's description of the shooter's clothing, and Weklych testified that Salazar did not describe the sweatshirt as a hooded sweatshirt. Finally, Sorto asked about Salazar's description of the gun, suggesting that the caliber he described was different from the murder weapon.
After Weklych was excused, the court put on the record what occurred at a sidebar during Weklych's testimony. The court noted that the State raised a concern that there needed to be some strategy put on the record about why the defense was eliciting Salazar's statements about the shooter's identification. The court stated:
The state's concern was there might be [an] ineffective assistance of counsel claim built into this, and the Court was concerned likewise that there should be a strategy, although it's been very clear from the beginning this is an identification case, and we talked a lot about the back of Sorto's head in relationship to his identification.
The State then put on its last witness and rested its case in chief.
Sorto called two witnesses who testified that Sorto had a tattoo on the back of his head. Sorto also called as an expert witness a psychology professor who testified about eyewitness identification and memory and factors that may impact the accuracy of memory. He also testified that tattoos are unusual enough that they would attract attention and be remembered. The defense then rested its case.
While reviewing the jury instructions, the court noted that the State was withdrawing its proposed curative instruction striking Salazar's statements. But the State responded that it was still proposing it and wanted it made part of the record. When the court asked if this was to address any ineffective assistance of counsel issues, the prosecutor said that while this was not her initial intent, she did think it was important to put on the record why Sorto excepted to the instruction. She noted that the defense strategy was articulated in chambers but she wanted it stated on the record. The court then asked Sorto to articulate the defense strategy in bringing out this issue and objecting to the proposed instruction. The court noted that while those statements would not normally be admissible under Crawford,
Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
defense [counsel] opened this door and kept following through asking for specific parts of the suspect identification to be gleaned from both detectives. . . . It was further developed this morning with Detective Weklych's cross-examination, which I believe was the only day that Detective Weklych was cross-examined.
Defense counsel did not state the defense strategy but instead chose to explain Sorto's objection to the instruction, dismissing suggestions of ineffective assistance of counsel as speculative and a matter for the "appellate attorneys." Counsel then stated that Sorto "had to bring this information out to challenge the inferences that the state had elicited from their witnesses. . . . There are these ideas left before the jury that the defense had to challenge because it goes to the heart of our defense." Specifically, counsel referred to Cruise's testimony that police had a montage pick and a description by a witness. While counsel acknowledged that the State may not have elicited specific statements Salazar made, she argued that "we are left with this impression with the jury that this montage pick was 100 percent when it was a qualified pick, and that this description matched Mr. Sorto when there are things to point out in his description that don't match Mr. Sorto." Counsel also argued that Sorto needed to challenge Salazar's description of the gun because it referred to a different caliber than the murder weapon.
The court then ruled: "The record will bear it out. Ordinarily I would give this instruction but for the defense objection to it, because I think, frankly, none of Salazar's statements could come in." But the court also acknowledged that none of the statements came in from Cruise on direct examination and that any specific statements were elicited by Sorto, not the State, pointing to the statement about the teeth that Sorto elicited during Weklych's cross-examination. The court also acknowledged that at the beginning of the case, everyone was operating under the assumption that Salazar would testify, so the court did not have any Crawford confrontation concerns. But the court also recognized that once the actual statements were brought out on cross-examination without Salazar testifying, the State was "duty bound" to offer the instruction striking those statements. Defense counsel explained that she was concerned about the proposed instruction because it struck only those statements elicited by Sorto and would impede his ability to present a defense. The court then gave Sorto until the next day to "figure it out," expressing skepticism about the defense position:
It's almost as if you want it both ways. You want it to be able to bring out the specificity, argue the evidence and then be able to say on appeal, well, it should never have come in anyway. And you're being given a wholesale dismissal of any of the statements that Salazar made. And being faced with that, you're just saying, no. I just don't get it. It's confounding to the Court."
The next day, both the State and Sorto took opposite positions from the day before. Sorto instead proposed a similar instruction, with additional language striking "any testimony from witnesses about information learned from Mr. Salazar." Sorto argued that while his hearsay objection was overruled because this testimony did not contain direct statements, it was still hearsay because the inferences from this testimony were effectively statements. Sorto also asked for a mistrial, arguing that a mistrial, not a curative instruction, was the proper remedy. The State objected to this instruction and withdrew its own proposed instruction, contending that eliciting Salazar's statements was invited defense strategy. The prosecutor argued that the defense "went knee deep into hearsay knowing full well it would be inadmissible as part of their strategy," noting that Sorto directly elicited the hearsay and then used his witnesses to discredit the statements. The trial court ultimately concluded that this was trial strategy "not only employed[,] but embraced" by Sorto, declining to give either curative instruction and denying the motion for mistrial.
DISCUSSION
I. Right to Confrontation
Sorto argues that the trial court denied him his Sixth Amendment right to confrontation by first admitting, then refusing to strike, evidence of Salazar's statements because Salazar did not testify. The State contends that the statements were admissible because they were either not testimonial or elicited and invited by Sorto and that any error in admitting them was harmless. We agree.
It is unclear from the assignments error what specific testimony is the basis for this claim. The assignment of error refers to "testimonial statements," but the argument also refers to "evidence presented by the State which flowed directly from those statements," and argues that the defense instruction would have barred the jury from considering Weklych's opinion that Salazar's description of the shooter "proved accurate." Thus, it appears that Sorto challenges the admission of any testimony from Hairston, Cruise, and Weklych about Salazar's involvement in the case. This presumably includes all testimony elicited by Sorto, but the briefing does not specifically challenge the statements Sorto elicited during cross-examination.
The admission of hearsay evidence raises Confrontation Clause concerns when the declarant is unavailable to testify. Even if a hearsay exception applies, the Confrontation Clause requires the trial court to also determine whether the hearsay evidence is "`testimonial.'" If it is testimonial, the court may only admit the hearsay evidence if the defendant had a prior opportunity to cross-examine the declarant.
State v. Kirkpatrick, 160 Wn.2d 873, 881, 161 P.3d 990 (2007).
Id. at 882 (quoting Crawford, 541 U.S. at 68).
Id.
The United States Supreme Court has not provided a comprehensive definition of "testimonial" evidence. But in its later decision in Davis v. Washington, the Court ruled that a 911 caller's statements were not testimonial because they were made to assist the police in responding to an emergency, not to assist in a later court proceeding. As the Court explained:
Id.
547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Id. at 822.
The Washington State Supreme Court has applied these principles in State v. Ohlson and identified four factors courts should consider when determining the primary purpose of an interrogation: (1) the timing of the statements, (2) the level of harm threatened, (3) the level of need for the information, and (4) the formality of the questioning. In Ohlson, the court concluded that an assault victim's statements made to the first officer on the scene were not testimonial and were admissible as excited utterances despite the victim's failure to testify at trial. The court found significant that the assailant was still at large when the statements were made and the threat posed was thus great.
162 Wn.2d 1, 15, 168 P.3d 1273 (2007).
Id. at 16-19.
Id.
Considering the factors here, the statements Salazar made to Hairston were not testimonial. They were made only seconds after the shooting occurred to the first officer who arrived on the scene. Also, as in Ohlson, the statements were made while the shooter was still at large, and here the threat posed to public safety was even greater: the victim had been shot several times and was nearly dead. The need for the information provided by Salazar was also great: he was the only witness, and his description assisted the police in the search for the shooter. Finally, the formality of the questioning was minimal. Hairston was performing several tasks at the scene and received just enough information from Salazar to broadcast it to other officers. Thus, as in Ohlson, Salazar's statements to Hairston about his observations of the shooter were not testimonial and properly admitted as excited utterances under ER 803(a)(2) because they were made while Salazar was "excited" and "shaken up."
Sorto's attempts at oral argument to differentiate between statements describing the shooter and those describing the shooting are of no consequence to his argument. Salazar's description of the shooter, as well as the shooting, assisted police in an ongoing emergency: what the shooter looked like, how and where the shooting the occurred, and the direction in which the suspect fled was information that would assist police in apprehending an armed and at-large suspect.
But the statements Salazar made to Cruise and Weklych are properly characterized more as responses to investigatory questioning rather than emergency assistance. As detectives, Cruise and Weklych were assigned to investigate facts to prove the crime and by taking a "statement" from Salazar, their questioning was more detailed and formal than Hairston's. Thus, these statements were more testimonial in nature and raised confrontation issues when Salazar did not testify. But as the State argues and the trial court found, because Sorto elicited or invited admission of these statements, he cannot now claim it as error.
A party may not set up an error at trial and then claim on appeal that the trial court erred on that basis. Under the invited error doctrine, a party cannot raise a claim of trial court error "if the party asserting such error materially contributed" to it. A material contribution may include acquiescence as well as direct participation. The invited error doctrine bars claims that impact a constitutional right, including claims arising under the Confrontation Clause.
In re Dependency of K.R., 128 Wn.2d 129, 147, 904 P.2d 1132 (1995); State v. Henderson, 114 Wn.2d 867, 870-71, 792 P.2d 514 (1990).
In re K.R., 128 Wn.2d at 147.
See State v. Bailey, 114 Wn.2d 340, 787 P.2d 1378 (1990); State v. Lewis, 15 Wn. App. 172, 548 P.2d 587, review denied, 87 Wn.2d 1005 (1976).
City of Seattle v. Patu, 147 Wn.2d 717, 720-21, 58 P.3d 273 (2002); see United States v. Reyes-Alvarado, 963 F.2d 1184, 1187 (9th Cir.) (nontestifying codefendant's statements elicited by defendant cannot be basis for claim on appeal), cert. denied, 506 U.S. 890 (1992).
As detailed above, once the State was certain that Salazar would not be testifying, it proposed to strike any of his statements that had already been elicited. But rather than accept this remedy, Sorto objected to a curative instruction and proceeded to elicit these statements on cross-examination of Weklych. In fact, Sorto based his entire defense on discrediting those statements. It was not until after Sorto had presented his case that he changed position and asked the court to strike not only the statements but any testimony based on those statements. Thus, admission of the statements was invited by Sorto and was necessary to his trial strategy. He cannot now claim it as error. The trial court properly refused the instruction.
The trial court also properly refused Sorto's proposed instruction to strike "any testimony from witnesses about information learned from Mr. Salazar." Sorto asserts that this instruction would have properly barred "evidence presented by the State which flowed directly from [Salazar's] statements" and Weklych's opinion that Salazar's description of the shooter "`proved accurate.'" But as the trial court correctly found, by eliciting testimony about Salazar's statements, Sorto opened the door to this testimony.
Generally, once a party has raised a material issue, the opposing party is permitted to explain, clarify, or contradict the evidence. This is the long-recognized rule that when a party opens up a subject of inquiry, that party "contemplates that the rules will permit cross-examination or redirect examination . . . within the scope of the examination in which the subject matter was first introduced." Otherwise, "[t]o close the door after receiving only a part of the evidence not only leaves the matter suspended in air at a point markedly advantageous to the party who opened the door, but might well limit the proof to half-truths." Here, by eliciting Salazar's statements about his description of the shooter and attempting to discredit those statements, Sorto opened the door to testimony about whether Salazar's description "`proved accurate'" and permitted the State to elicit other testimony about Salazar's statements.
State v. Price, 126 Wn. App. 617, 109 P.3d 27, review denied, 155 Wn.2d 1018 (2005).
State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969).
Id.
Sorto also fails to provide authority or argument that testimony about Salazar's statements, other than the statements themselves, would be inadmissible. At trial, he argued that this testimony was effectively hearsay because it allowed the jury to infer that Salazar made statements incriminating Sorto, but he does not argue this on appeal.
Finally, even if the statements were improperly admitted, any error was harmless. Even without these statements, there was sufficient evidence of Sorto's guilt. The cell phone found at the scene was traced to Sorto's sister, who admitted that Sorto told her he lost the phone and also reported it lost the day after the murder. The shell casings found at the scene and the bullets found in Pinto's body matched the gun found in Cortez's apartment, which was where Sorto was going the night he encountered the federal agents and also contained Sorto's identification. Cortez was excluded as a possible source of DNA (deoxyribonucleic acid) on the weapon, but Sorto was not. To avoid apprehension by the police, Sorto fled from the federal agents at the apartment complex, threatened one of them with a gun, and fled to California. Finally, he did not deny accusations made by the detectives during his interrogation but admitted that he was "fucked" whether or not he told them what happened and said that Pinto was "[a] piece of shit."
II. Premeditation
Sorto next challenges the sufficiency of the evidence on the element of premeditation. Evidence is sufficient to support a conviction if viewing all of the evidence in the light most favorable to the State, any rational juror could have found all the elements of the crime proved beyond a reasonable doubt. A defendant challenging the sufficiency of the evidence admits the truth of the evidence and all rational inferences that may be drawn from it. We defer to the jury's determination of the weight and credibility of the evidence.
State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993).
State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004).
Id. at 874-75.
A person commits murder in the first degree if, with premeditated intent, he or she causes the death of another person. The jurors were instructed on premeditation as follows:
Premeditated means thought over beforehand. When a person, after any deliberation, forms an intent to take human life, the killing may follow immediately after the formation of the settled purpose and it will still be premeditated. Premeditation must involve more than a moment in point of time. The law requires some time, however long or short, in which a design to kill is deliberately formed.
WPIC 26.01.01.
"Premeditation may be proved by circumstantial evidence where the inferences drawn by the jury are reasonable and the evidence supporting the jury's finding is substantial." Evidence that the defendant fired multiple shots may support a finding of premeditation. Bringing a loaded gun to the murder scene may also be an indicator of premeditation.
State v. Gentry, 125 Wn.2d 570, 598, 888 P.2d 1105, cert. denied, 516 U.S. 843 (1995).
State v. Hoffman, 116 Wn.2d 51, 83, 804 P.2d 577 (1991) (multiple shots at victim from behind); State v. Rehak, 67 Wn. App. 157, 164, 834 P.2d 651 (1992) (multiple shots at victim's head), review denied, 120 Wn.2d 1022, cert. denied, 508 U.S. 953 (1993).
State v. Massey, 60 Wn. App. 131, 145, 803 P.2d 340, review denied, 115 Wn.2d 1021 (1990), cert. denied, 499 U.S. 960 (1991).
Here, the State presented sufficient evidence of premeditation. Multiple shots were fired, at least two of which were fired at close range at Pinto's head and one of which was fired at Pinto's back. Thus, the jury could reasonably infer from this evidence that the shooter had more than a moment in time to form the intent to kill. Additionally, the evidence established that when found, the murder weapon was missing only five bullets, which matched the number of casings found at the scene. Thus, a jury could reasonably infer from this evidence that the shooter brought the gun to the scene fully loaded. Sorto's argument that the jury could have made other inferences from this evidence ignores the standard for challenges to the sufficiency of the evidence: to evaluate these claims, we must draw all inferences in the light most favorable to the State.
Additionally, as the State argues, Sorto's reliance on State v. Bencivenga, 137 Wn.2d 703, 974 P.2d 832 (1999), is misplaced. The principle for which Sorto cites this case does not apply to challenges to the sufficiency of the evidence. See id. at 708-09.
III. Custodial Statements
Finally, Sorto argues that his statements to the detectives were inadmissible because he refused to waive his Miranda rights during their questioning. He assigns error to the trial court's conclusion that he waived his rights and the court's findings that he was advised of his rights, did not unequivocally assert those rights, engaged with the detectives throughout the interview, and then made statements. We will uphold a trial court's CrR 3.5 findings of fact if substantial evidence supports them. We will not disturb the trial court's credibility determinations on appeal. We review conclusions of law de novo.
State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997).
State v. Boot, 89 Wn. App. 780, 791, 950 P.2d 964, review denied, 135 Wn.2d 1015 (1998).
State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999), abrogated by Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007).
Before the court can admit at trial any statements against a defendant that were made during a custodial interrogation, the State must show by a preponderance of the evidence that the defendant knowingly and intelligently waived the right to remain silent. Express waivers are not required; rather, courts should examine the entire record to determine if the defendant impliedly waived the right to silence by his or her conduct. A defendant's refusal to sign a waiver is not dispositive. Rather, if the totality of the circumstances shows that the defendant's answers are given knowingly, intelligently, and voluntarily following the defendant's refusal to sign a written waiver, the answers are admissible. When a defendant makes an equivocal statement about his or her right to remain silent, police are not required to cease questioning; rather, police questioning may continue until that right has been unequivocally invoked. Also, regardless of whether the defendant initially invokes any rights, by initiating further conversation with police, he or she waives those rights.
State v. Athan, 160 Wn.2d 354, 380, 158 P.3d 27 (2007).
North Carolina v. Butler, 441 U.S. 369, 373-74, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979).
Athan, 160 Wn.2d at 380; State v. Gross, 23 Wn. App. 319, 324, 597 P.2d 894, review denied, 92 Wn.2d 1033 (1979).
State v. Cashaw, 4 Wn. App. 243, 248, 480 P.2d 528, review denied, 79 Wn.2d 1002 (1971).
State v. Walker, 129 Wn. App. 258, 275, 118 P.3d 935 (2005), review denied, 157 Wn.2d 1014 (2006).
State v. Aten, 130 Wn.2d 640, 666, 927 P.2d 210 (1996).
Here, based on the totality of the circumstances, the trial court properly concluded that Sorto waived his right to remain silent. While he refused to sign the waiver and initially said he did not want to talk, the detectives testified that at no time did he attempt to invoke his rights once he said he would listen to what they had to say and they began talking to him. Rather, when Cruise stated that they were there to talk about what happened on Cloverdale, he initiated conversation and asked, "what happened on Cloverdale[?]" And from that point on, he freely engaged in conversation and responded with smiles, chuckles, grunts, shrugs, and other gestures.
While Sorto testified that he never spoke to detectives other than to ask to return to his cell, the trial court did find not his testimony credible.
Sorto's refusal to sign the waiver and his statement that he did not want to talk but would listen to what the detectives had to say was at most an equivocal assertion of his rights. Accordingly, the detectives were entitled to continue with questioning until he asserted his rights unequivocally, which he did not. And even if his initial statement about not wanting to talk could be interpreted as unequivocally invoking his right to remain silent, he waived that right when he reinitiated conversation with the detectives and freely engaged in it.
Walker, 129 Wn. App. at 276.
State v. McReynolds, 104 Wn. App. 560, 576, 17 P.3d 608 (2000), review denied, 144 Wn.2d 1003 (2001).
We affirm the judgment and sentence.