State Of Washington, Respondent/cr-appellant V. Brian A. Perez Reyes, Appellant/cr-respondent

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
BRIAN A. PEREZ REYES,
Appellant.
No. 72745-1-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	March 7, 2016
Leach, J. — Brian Perez Reyes appeals his conviction for manslaughter in
the first degree. 	He challenges the trial court's admission of statements he made
during an 	interrogation without first receiving Miranda1 	warnings. 	The 	State
claims that any erroneous admission of Perez Reyes's statements was harmless
error. 	Because Perez Reyes did not make new or incriminating statements
during the asserted custodial interrogation and overwhelming, untainted evidence
supported the verdict, any error in admitting the interview was harmless beyond a
reasonable doubt. 	We affirm.
Background
Perez Reyes was the sole caretaker of his two-month-old son, D.P.R., on
the evening of June 27, 2013. 	Early the next morning, Perez Reyes told his
mother that D.P.R. was nonresponsive, and he and his mother drove D.P.R. to
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).

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the emergency room. 	Upon arrival at the hospital, D.P.R. was not breathing and
had no pulse.
At the 	hospital, 	Perez Reyes described the events leading 	up to and
causing D.P.R.'s injuries several times. 	He told the doctor at the emergency
room that around 4:30 a.m. D.P.R. had still not woken up to eat, so Perez Reyes
went to get his food but was unable to wake him when he returned. 	He told
Aunna Collins, D.P.R.'s mother, that D.P.R. woke up around 3:00 a.m., so he
went to get a 	bottle. 	He said 	he found 	D.P.R. was not breathing 	when 	he
returned. 	He told Bianca Collins, the maternal grandmother, that he tried to wake
D.P.R., but D.P.R. would not move.
While 	D.P.R. 	was transferred 	to 	Seattle 	Children's 	Hospital, 	the 	E.R.
doctor at Swedish contacted Child Protective Services. 	She reported that Perez
Reyes did not seem appropriately concerned. 	At Seattle Children's Hospital, the
intensive 	care 	doctor 	treating 	D.P.R. 	concluded 	that 	nonaccidental 	trauma
remained 	the 	leading 	diagnosis. 	Accordingly, she 	notified Child 	Protective
Services and the police department.
A hospital social worker then interviewed Perez Reyes. 	Perez Reyes told
her that D.P.R. had woken up crying. When Perez Reyes got back from getting a
bottle, he saw D.P.R. rapidly inhaling and 	having difficulty breathing. 	Perez
Reyes then demonstrated shaking D.P.R. gently to wake him and trying CPR
(cardiopulmonary resuscitation).

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D.P.R. died the afternoon of June 29, 2013. 	Physical examinations of
D.P.R. 	at the hospital and during the autopsy revealed that he had suffered a
devastating brain 	injury consistent with nonaccidentally inflicted trauma. 	After
examining D.P.R., the chief medical examiner and a child abuse specialist each
found that a short fall would not have caused the injury.
The chief medical examiner classified the manner of death as homicide
caused by violent shaking. 	He also determined that some time probably elapsed
between "the infliction of the injury and the time the brain [had] really swollen up
causing a medical problem."
On June 28, 2013, Snohomish County Sheriff's detectives were called to
the hospital to investigate. 	At the hospital, Bianca Collins told a detective that
she and Aunna 	Collins 	had 	previously warned 	Perez 	Reyes about handling
D.P.R. too roughly.
At Perez Reyes's apartment complex, 	Perez Reyes and Aunna Collins
agreed to speak with detectives. 	Aunna Collins told a detective that she had
previously noticed a bruise on D.P.R.'s left leg in an apparent fingerprint pattern.
Although Aunna did not know the cause of the injury, Perez Reyes told her to
hide it from her mother, Bianca Collins, because he thought she would become
suspicious.
Detectives Scharf and Ross interviewed Perez Reyes in Detective Ross's
car. 	Detective Ross explained the process of a 	recorded 	interview and told
Perez Reyes that he was not under arrest and could leave at any time. 	Perez

No. 72745-1-1/4
Reyes 	gave 	permission 	to 	have 	the 	conversation 	recorded 	and 	signed 	a
noncustodial interview form. 	Ross and Scharf questioned Perez Reyes for just
over 3 hours. 	The first 	portion of the interview lasted about 1 hour and 	15
minutes. 	After a 10- to 20-minute break, the detectives asked Perez Reyes if he
would continue to speak with them. 	During the break, a detective told Ross that
the 	hospital 	had 	classified 	D.P.R.'s 	injuries as 	not accidental 	but had 	been
inflicted by shaking the baby violently. 	The second interview lasted about 2 more
hours.
During both interviews, Perez Reyes told the detectives that he had picked
up D.P.R. to go make a bottle but tripped and dropped D.P.R. on his head. 	Then
when he picked D.P.R. up, he realized that D.P.R had stopped breathing, so he
moved him back and forth two or three times.
Toward the end of the second interview, Detective Scharf said, "I think
we're gonna just have to take him to jail." 	The conversation with Perez Reyes
continued for a short time. 	During this time, Perez Reyes repeatedly said that he
had told the detectives everything that had happened and he wanted to go be
with his son. 	Before long, 	Ross got out of the car, leaving Scharf with Perez
Reyes. 	After five minutes, Ross returned, opened the door, placed Perez Reyes
under arrest, and read him his Miranda rights.
Perez Reyes then agreed to speak to Detective Martin and demonstrated
how he had dropped D.P.R. but had not violently shaken him. 	Martin asked if
Perez 	Reyes was willing to 	continue talking, 	and 	Perez 	Reyes agreed. 	In

No. 72745-1-1/5
Martin's 	car, 	Perez 	Reyes 	signed 	a 	recorded 	interview 	form 	and 	a 	form
acknowledging 	he 	understood 	his 	Miranda 	rights 	and 	was 	waiving 	them.
Detective 	Martin 	had 	Perez 	Reyes again 	describe what happened the night
before for about 49 minutes until Perez Reyes stated he did not wish to speak
anymore.
The 	trial 	court 	conducted 	a 	CR 	3.5 	hearing 	on 	his 	statements'
admissibility. 	Perez Reyes claimed that after the detective said, "I think we're
gonna just have to take him to jail," the interview became custodial and required
Miranda 	warnings. 	Because 	the 	detectives 	gave 	none, 	any 	subsequent
statement was 	not 	admissible 	as 	evidence. 	The trial 	court disagreed 	and
admitted the entirety of the two interviews into evidence. 	The parties agreed to a
stipulated bench trial, and the court found 	Perez Reyes guilty of first degree
manslaughter. 	Perez Reyes appeals.
Analysis
Perez Reyes asserts that his conviction must be reversed because the
trial court erred in admitting the last part of his interview with Detective Scharf
and Detective Ross. 	He contends that after hearing Detective Scharf say, "I think
we're gonna just have to take him to jail," he reasonably believed that he was in
custody. 	This required the detectives to give 	him Miranda warnings before
continuing the interview.

No. 72745-1-1/6
The Fifth Amendment to the 	United 	States Constitution states that no
person "shall be compelled in any criminal case to be a witness against himself."2
To protect this right, a suspect must be warned before any custodial interrogation
"that he has a right to remain silent, that any statement he does make may be
used as evidence against him, and that he has a right to the presence of an
attorney" 	or the 	statement cannot 	be 	used 	as evidence 	at trial.3 	Miranda
warnings are only required after the person is taken into "custody," meaning "a
reasonable person in the individual's position would believe he or she was in
police custody to a degree associated with formal arrest."4
If a court admits a statement obtained in violation of Miranda, this error
requires reversal only if prejudicial.5 	We review the record de novo to determine
if the error is harmless beyond a reasonable doubt.6 	To find a Miranda violation
harmless beyond a reasonable doubt, we look "only at the untainted evidence to
determine if the untainted evidence is so overwhelming that it necessarily leads
to a finding 	of guilt."7 	The State has the burden of demonstrating that the
admission of the statement did not contribute to the final conviction.8 	This court
2 Miranda, 384 U.S. at 444-45.
3 Miranda, 384 U.S. at 444-45.
4 State v. Lorenz, 152 Wn.2d 22, 36-37, 93 P.3d 133 (2004).
5State v. Nvsta, 168 Wn. App. 30, 43, 275 P.3d 1162 (2012); State v.
Reuben, 62 Wn. App. 620, 626, 814 P.2d 1177 (1991).
s Arizona v. Fulminante. 499 U.S. 279, 295, 111 S. Ct. 1246, 113 L Ed. 2d
302(1991).
7 State v. Gulov. 104 Wn.2d 412, 426, 705 P.2d 1182 (1985).
8 Fulminante, 499 U.S. at 296.

No. 72745-1-1/7
will 	reverse 	a 	conviction 	if there 	is any 	reasonable 	chance that the 	use of
inadmissible evidence was necessary to reach the guilty verdict.9
The parties agree that the earlier interviews between Perez Reyes and the
two detectives were noncustodial and any statements made during that time
were admissible. 	The parties also agree that Perez Reyes did not change his
statement of the facts during the entire interview period, including the time when
Perez 	Reyes 	asserts 	the 	interview 	became 	custodial. 	Perez 	Reyes 	only
challenges the statements he made to police officers during the final minutes of
the second interview. 	But even if the statements made during that portion of the
interview were tainted, striking those statements would not alter the evidence
available to the trial court because "[t]he tainted evidence was repetitive of the
untainted evidence."10 	Thus, we need not decide if the interview was custodial
during that short portion of the interview.
The only evidence the detectives gained from the interviews was Perez
Reyes's description of what happened at the time of the injury. 	The record
makes clear that Perez Reyes made voluntary statements consistently providing
the same description of how D.P.R. had been injured before the time he claims
the interview became custodial and in an interview with another detective after
waiving his rights. 	During both interviews, Perez Reyes said that he had dropped
D.P.R. on his head while going to get a bottle and that D.P.R. was not breathing
9 Nvsta, 168 Wn. App. at 43.
10 Nvsta, 168 Wn. App. at 43.

No. 72745-1-1/8
when 	he 	picked 	him 	up. 	This 	description 	of 	how 	the 	injury 	occurred 	is
inconsistent with the actual 	injury and 	different from what 	Perez Reyes had
previously told others. 	Perez Reyes does not specify any information provided
during the end of the interview that the trial court should have stricken. 	The
record provides no indication that the trial court used any information from that
period in convicting Perez Reyes.
Instead, the trial court relied primarily on 	evidence obtained from other
sources. 	Perez Reyes confirmed to others that he had D.P.R. in his sole care
during the time the injury occurred. 	The testimony of the doctors who performed
physical examinations of D.P.R. at the hospital and during the autopsy revealed
D.P.R. 	had 	suffered 	a 	devastating 	brain 	injury caused 	by a 	nonaccidentally
inflicted trauma, such as violent shaking. 	Perez Reyes told conflicting stories
when describing the events causing 	D.P.R.'s fatal 	injuries to Aunna Collins,
Bianca Collins, the doctors providing treatment, the social worker, and the police.
All of these statements were inconsistent with the medical findings. 	Finally,
Aunna and 	Bianca Collins told detectives that Perez Reyes had a 	history of
handling 	D.P.R. 	too 	roughly. 	This 	untainted 	evidence 	overwhelmingly
demonstrates Perez Reyes's guilt.
Conclusion
Even if Perez Reyes made statements during a 	custodial interrogation
without receiving Miranda warnings, there is no reasonable chance that the use
of the asserted tainted evidence was necessary to reach the trial court's guilty
-8-

No. 72745-1-1/9
verdict. 	Because overwhelming, 	untainted evidence supports the trial court's
decision, 	any error in admitting the challenged 	portion 	of the 	interview was
harmless. We affirm.
L^f
WE CONCUR:
M y 	,rN
7
cteg,