Washington law provides special protections to children in criminal investigations. Pursuant to RCW 13.40.740, which became effective January 1, 2022, a juvenile being questioned in a custodial interrogation, detained based on probable cause of involvement in criminal activity, or asked to consent to an evidentiary search can only knowingly, intelligently, and voluntarily waive their Miranda rights after consulting with an attorney. This consultation cannot be waived. A Washington juvenile defendant recently challenged his convictions, arguing in part the consultation requirement should apply even though he was interviewed before the statute’s effective date.
According to the unpublished appeals court opinion, the thirteen-year-old juvenile told his father there was a fire at the dumpster of their apartment complex when he returned from taking out the trash on May 7.
He was home alone on the morning of May 16 and two more fires occurred. He was home alone again that afternoon and three more fires were set. No one saw how the fires started or who started them.
The juvenile called and sent audio and video messages to his family. In one message, he referenced “the fire I was trying to start” and said “that’s four fires I tried to start or whoever tried to start” in another message. He told his mother he told another resident “about all of the fires I was trying to get started.”
The fires were started similarly, with paper, cardboard, and cloth. Remnants from one afternoon fire were similar to cloth found that morning. The fire marshal opined the fires were started with an open flame device like a lighter. He also noticed a burn mark by the juvenile’s apartment that appeared to have been caused by such a device.
The juvenile’s mother agreed to allow him to speak to a detective. His mother and brother were present, and his father listened on speakerphone. The detective asked to see and recorded a copy of the video and audio messages the juvenile sent his mother. The juvenile said the statements in the messages were not what he meant to say. He signed a statement his statements were made “freely, voluntarily, and without threats or promises of any kind.”
Another detective interviewed him at the police station. He told the detective he had previously been fascinated by the noise of a fire, but was not any longer. He denied being involved with the fires. He suggested young people may have started the fires by messing with a parent’s lighter. He gestured a motion like flicking a lighter, but later said he did not know how to use a lighter. He said the words in his messages “accidentally slipped out” due to adrenaline. The interview ultimately ended when he asked to go home.
The juvenile was charged with two criminal counts for the May 7 fire and five counts for the May 16 fires. He moved to sever the May 7 charges from the May 16 charges. He subsequently proposed also severing the morning fires from the afternoon fires. The trial court denied the motion.
The trial court concluded the juvenile was not in custody during either interview and his statements were admissible.
At trial, the juvenile denied starting the fires. He testified he was scared and panicked when he sent his mother the messages and that he had a lot of adrenaline. He said these factors sometimes cause him to stutter and mess up his words. His father also testified he gets “really jittery” when nervous and “stumbles over his words.”
The trial court found him not guilty of second degree arson and reckless burning for the May 7 fire. The court found him guilty of first degree attempted arson for three counts and arson in the first degree for two other counts for the May 16 fires.
Motion to Sever
The juvenile appealed, arguing the trial court denied him a fair trial by denying his motion to sever. He argued the trial court “cumulated evidence and inferred [he] had a propensity for arson.”
The trial court has discretion to grant severance “to promote a fair determination of the guilt or innocence of a defendant.” CrR 4.4. On appeal, a defendant must show the prejudicial effect of trying the counts together outweighed the benefits. The appeals court must consider certain factors to determine if the trial court mitigated the prejudice.
There was eyewitness evidence for the first fire but only circumstantial evidence for the other fires. Because the strength of the evidence varied, that factor favored severance.
The juvenile’s defense for all counts at trial was general denial. He argued on appeal he presented evidence of different suspects for each day of fires. He did not provide argument for how his defenses were frustrated, however, and he had not raised the issue below. The appeals court therefore declined to consider the new argument and concluded his general denial was the same for all offenses. The clarity of defenses factor therefore weighed against severance.
The court must also consider the admissibility of evidence of the other charges if not joined. The trial court found this factor weighed against severance because the evidence would have been admissible as a link needed to depict the complete picture of events.
The juvenile argued the evidence for the May 16 morning counts was weaker than that for the afternoon. The appeals court pointed out the fires were started with the same type of device and similar materials. The juvenile had a personal connection to two of the fires, one morning fire set in the stairwell by his apartment and an afternoon fire set in front of the apartment where he previously lived. In a message to his mother, he referenced “four fires I tried to start…”
The appeals court found “no link in the chain of an unbroken sequence of events between the May 7 fire and the May 16 fires,” however. The factor therefore weighed in favor of severing the May 7 counts from the May 16 counts, but against severing the morning fires from the afternoon fires. The appeals court noted, however, that this was a bench trial and the trial court was aware of separating the counts.
The appeals court judicial economy outweighed any possible prejudice. There was an overlap of eight witnesses, one a child and two of whom had material witness warrants issued.
Admissibility of Statements
The juvenile argued the court should hold children cannot waive their Miranda rights without consulting an attorney, although his interviews occurred before the effective date of RCW 13.40.140(1). The appeals court noted statutes are presumed to apply only prospectively unless there is legislative intent otherwise. The appeals court concluded RCW 13.40.740(1) would not apply regardless of the retroactivity issue because the juvenile was not in custody during the interviews.
The juvenile argued he was in custody during the initial interview, challenging the court’s finding he was aware he was free to leave. The appeals court noted his family was present. He was on the side of the room with the door. The fire marshal testified he was told he could leave at any time. The appeals court concluded there was substantial evidence supporting the trial court’s finding. The juvenile also challenged the court’s finding the first interview was voluntary. He testified he did not remember if he was told it was voluntary and felt he could not leave at certain points. The detective and fire marshal testified the detective told him it was voluntary. His parents testified it was voluntary, and the juvenile signed a statement indicating the same. The appeals court concluded there was substantial evidence supporting the trial court’s findings and the findings supported its conclusions the juvenile was not in custody during the first interview.
The juvenile also challenged a number of findings regarding the second interview. The juvenile sat nearest the door. His father testified the juvenile volunteered to be interviewed. The juvenile testified he “had the option” to do the interview or not. He testified he knew he was going to the station for an interview. The detective talked to the juvenile and his father for about 40 minutes and advised him of his rights. Both the juvenile and his father signed a form setting forth his constitutional rights. The juvenile testified he understood everything read to him from the form, that he was free to leave, and that the interview was recorded and could be used against him. The interview ended when he said he wanted to go home.
The appeals court concluded there was substantial evidence supporting the findings and the findings supported the conclusions the juvenile was not in custody and his statements were admissible.
Seek Skilled Legal Counsel
Children can be especially vulnerable to interrogation techniques. If you believe your child is being investigated for a crime, you should contact an experienced Washington juvenile defense attorney right away so your child’s rights are protected. Schedule a consultation with Blair & Kim, PLLC, at (206) 622-6562 for a consultation.