                                                                                                2014 DEC -
                                                                                                             9 Ail 10 : 2y
                                                                                                                   Uat
                                                                                                BY


    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO


                                                  DIVISION II

 STATE OF WASHINGTON,                                                           No. 43693 -1 - II


                                     Respondent,                       PART PUBLISHED OPINION


        v.




 SERGEY FEDORUK,


                                     Appellant.


       BJORGEN, A. C. J.         A jury found Sergey Fedoruk guilty of second degree murder for the

death of Serhiy Ischenko, Fedoruk' s relative by marriage. Fedoruk appeals, arguing that ( 1) he

received ineffective assistance of counsel because his attorney failed to timely pursue a mental

health defense   and   did   not object   to   alleged prosecutorial misconduct; ( 2)   the prosecutor


committed flagrant and ill- intentioned misconduct in closing argument by undermining the

presumption of innocence, encouraging the jury to decide the case on grounds other than

reasoned evaluation of the evidence, expressing personal opinions as to Fedoruk' s guilt, and

presenting   evidence not admitted at          trial; ( 3) the trial court erroneously admitted incriminating

statements Fedoruk made to police; and ( 4) the trial court erroneously refused to instruct,the jury

on manslaughter as an included offense.


       We hold that defense counsel' s failure to timely retain a mental health expert or

investigate the possibility     of a mental      health defense   amounted   to deficient   performance, and
No. 43693 -1 - II



Fedoruk has shown a reasonable probability that the deficient performance prejudiced him.

Accordingly, we reverse Fedoruk' s conviction and remand for further proceedings.

          We also address the prosecutorial misconduct argument in the published portion of this


opinion and the admission of Fedoruk' s statements in the unpublished portion, because those


issues may recur on remand. Because a party' s entitlement to an included offense instruction

depends on the facts of the case, and the evidence presented may well differ on remand, we do

not decide whether the trial court erroneously declined to instruct the jury on manslaughter.

                                                       FACTS


A.        Fedoruk' s History of Mental Illness

          Fedoruk has a long history of serious mental illness. He suffered a head injury in a

motorcycle accident at the age of 18, was diagnosed with schizophrenia, and was twice admitted


to a psychiatric hospital. Doctors have prescribed numerous psychotropic and antipsychotic


medications, including Haldol, but Fedoruk has a history of poor compliance with the medication

regimens.




          In 2002, Fedoruk' s family members reported to police that he had threatened them.

Responding officers took Fedoruk to the emergency room, where doctors prescribed

antipsychotic medication. During a 2007 competency evaluation, doctors at Western State

Hospital diagnosed Fedoruk         with "[ b]   ipolar 1 [ d] isorder, [ m] ost   recent [ e] pisode [ m] anic, with



 p]   sychotic   features."   Clerk' s Papers ( CP) at 39. Fedoruk underwent another mental health


evaluation after the State charged him with robbery, assault, theft, and criminal trespass in 2008,

and a court ultimately found Fedoruk not guilty by reason of insanity.




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No. 43693 -1 - II



        In 2010, a court found Fedoruk gravely disabled and ordered him involuntarily

committed, but soon ordered him released on a less restrictive alternative. After Fedoruk


violated the terms of the court order, he was again involuntarily committed. Fedoruk had

stopped taking his prescribed psychiatric medications and threatened to blow up Ischenko, whom

Fedoruk had accused of raping a family member. Fedoruk was again released on a less

restrictive alternative in December 2010. At the time of Ischenko' s death, Fedoruk lived at a


house with numerous relatives, including Ischenko, and received outpatient care at a local clinic.

B.      Fedoruk' s Arrest and Interrogation


        Two community corrections officers ( CCO) and three sheriff' s deputies went to the house

where Fedoruk and Ischenko lived on August 1, 2011, responding to calls from Fedoruk' s family

members. The family members' concerns arose out of a series of incidents in which Fedoruk

engaged in increasingly strange behavior, including angry outbursts directed at Ischenko and

others. The family' s concerns increased over the course of the morning because no one could

find Ischenko, and they made additional calls to the authorities.

        When the CCOs and deputies approached the house, Fedoruk met them at the front door.


Despite repeated admonitions to remain outside and keep his hands visible, Fedoruk kept putting

his hands in his pockets and turning to go back into the house. The CCOs handcuffed Fedoruk,

stating that it was only a safety precaution and Fedoruk was not under arrest.

        After questioning Fedoruk on the porch, the CCOs and a deputy began searching the

surrounding grounds. As they walked the perimeter of the property, one of Fedoruk' s brothers-

in- law, Richard Dzhumaniyazov, ran toward them from the direction of a small ravine behind the


property, yelling, " Arrest him,   arrest   him. Shoot,   shoot."   Verbatim Report   of   Proceedings
No. 43693 -1 - II



 VRP) at 121 -22. Dzhumaniyazov led the officers into the ravine, where they found Ischenko' s

body.

          Deputy Cory Robinson then placed Fedoruk in a patrol car and read him the Mirandal

advisements. When informed that anything he said could be used against him in court, Fedoruk

shouted, "   Court,   court, court!"    VRP at 192. When told he had the right to talk to a lawyer,


Fedoruk    asked, "   Lawyer, why ?"      VRP at 192. After Deputy Robinson confirmed that Fedoruk

understood    his   rights and asked     if Fedoruk     wished    to   speak,   Fedoruk   replied, "   I don' t want to


talk to   you."   VRP   at   193.   Deputy Robinson then left Fedoruk alone in the car.

          After Deputy Robinson returned, Fedoruk began speaking without prompting for about

three or four minutes. Deputy Robinson took notes and reported Fedoruk' s statement at trial as

follows:


          My sister, Tatyana [ Varyvoda]. I ask -- I asked my sister -- ...                   What you want, a
          big dick or something? And he tell my sister, I want sex. I                       tell just this.   I tell
          smoke     dick, Tatyana. I just telling him it' s            not -- ...   tell just this.   I tell smoke
          dick, Tatyana. I just telling him, it' s not big deal. Christian no talk to for this for
          sex every time. I tell him, look, is my sister, too. And -- ... [ m] y sister very, very

          mad. She get bitchy and say, anybody call cops? I never touch him. I not touch

          him, never. I go to property of Tatyana, get goats.

VRP at 907 -08.


          After Deputy Robinson transported Fedoruk to the sheriff s department, Chief Civil

Deputy Marc Gilchrist and Detective Sergeant Joe Reece attempted to interview Fedoruk. They

did not readminister the Miranda advisements. Fedoruk, who remained cuffed, pointed at

Detective Reece       and said, "   I don' t   want   to talk to you."      VRP at 243 -44. Detective Reece left the




I Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).


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No. 43693- 1- 11



room, but Deputy Gilchrist, who interpreted Fedoruk' s statement to mean that Fedoruk was

willing to speak to him, remained.

          Deputy Gilchrist interviewed Fedoruk without an interpreter2 for an hour and a half.

After Fedoruk asked for an attorney, Deputy Gilchrist terminated the interview and released

Fedoruk to the custody of Officer Chris Napolitano, who detained Fedoruk for community

supervision violations.




           After further investigation, the State charged Fedoruk with second degree murder under


two alternatives: intentional murder and felony murder predicated on assault.

C.         Pretrial Proceedings


           While awaiting trial, Fedoruk was initially uncooperative with jail staff, who frequently

used force to restrain him. After an incident in which Fedoruk " had pretty much bitten off one of

his fingers,"   the trial court, over Fedoruk' s objection, entered an order directing jail staff to

forcibly administer antipsychotic medications. VRP at 1; CP at 32 -34. Once medicated,

Fedoruk became " docile,     respectful,   pretty   quiet [ and   did   not] cause   any   problems."   VRP at 69.


           The trial court also ordered Fedoruk to undergo a competency evaluation at Western

State Hospital. The psychologist who performed the evaluation recommended that Fedoruk


return to face prosecution, opining that

           Fedoruk does have      a major mental     illness, but ...
                                                             is not currently experiencing
           symptoms of a mental disease or defect that would interfere with his capacity to
           have a factual and rational understanding of the criminal proceedings he faces or .. .
           with his capacity to assist counsel in his defense.

CP   at   45. Fedoruk proceeded to stand trial.




2 Fedoruk has limited English proficiency and had the assistance of a translator at all proceedings
in the trial   court.
No. 43693 -1 - II



             The court held a hearing to consider the admissibility of Fedoruk' s various statements

under CrR 3. 5, taking testimony from the law enforcement witnesses who had had contact with

Fedoruk. The court ruled all of Fedoruk' s statements admissible and entered written findings


and conclusions. The written findings include ( 1) that Fedoruk " was not in custody and not in a

situation akin to custodial arrest" until after officers discovered Ischenko' s body and Deputy

Robinson       placed       Fedoruk in the     patrol car; (   2) that, although Fedoruk initially " invoked his right

to   remain silent,"        he initiated the subsequent conversation with Deputy Robinson and " thus

waived       his   right   to   remain silent ";   and ( 3) that by saying he did not want to talk to Detective

Reece, Fedoruk " cho[ se] which officer to talk with" and thus " initiated the conversation" with


Deputy Gilchrist. CP at 8 -9.

             The State moved to limit testimony concerning Fedoruk' s mental illness on the ground

that the defense had not disclosed any expert witness qualified to give an opinion on the subject.

During       the   hearing,      Fedoruk'   s counsel stated    that "[   t]he Defense has no intention of putting

forward       an affir   m at i v e defense   of   diminished capacity       or   arguing that ...   Fedoruk was incapable


of   forming       intent   at   the time."   VRP    at   333. Defense counsel instead argued as follows:


             Our defense is ...         he didn' t do it, but I need to respond to the allegations of the
             State. To the extent that their evidence calls into question his mental health at the
             time, I believe it' s appropriate for the Defense to be able to argue that those
             considerations and concerns need to be considered by the jury in determining
             whether or not the State' s proven, specifically, that he intended to commit the crime
             of murder, or whether some lesser mental state was present.

VRP     at   334 -35.      The State then summarized the evidence it intended to present concerning

Fedoruk' s behavior in the period leading up to Ischenko' s death as it reflected on Fedoruk' s

mental state.         The trial     court granted    the State' s   motion    in   part,   prohibiting testimony   about
No. 43693 -1 - II



diminished capacity or mental disease or defect, and ruled that the jury would not be instructed

on diminished capacity.

         Five days later, on the day before jury selection began, Fedoruk' s counsel moved for a

60 -day continuance to pursue an affirmative defense of not guilty by reason of insanity. Defense

counsel stated that, although he had contemplated a mental health defense earlier in the case,


obtained some records concerning Fedoruk' s mental health history, and spoken to Fedoruk' s

family   about   it, "[t] here was no evidence to support or suggest those defenses" and he had " no


basis legally to pursue" them until he interviewed Fedoruk after the CrR 3. 5 hearing. VRP at

397, 404. In the motion, counsel asserted that his request was timely made immediately

following his first opportunity to talk with Fedoruk about the commencement of the trial with an

interpreter after the CrR 3. 5 hearing.

         The State acknowledged that " there' s a legitimate basis to raise the defense" and that,


based on " what the State knows of the Defendant' s mental health at the time, it' s possible it


would    be   relevant    to the trial [ and]   could change   the    outcome."   VRP     at    401. The State


nonetheless opposed the motion for continuance, arguing that Fedoruk' s counsel knew the basis

for the defense     all   along, that it " look[ ed] like   a stall   tactic," and that a continuance would cause


prejudice     because the State had already         scheduled      witnesses to   testify. VRP      at   400, 402 -03. The


court denied the motion, finding that the defense had " failed to lay a factual foundation for the

basis to   continue [ and]     that   diligence has   not   been   shown."   VRP    at   406.
No. 43693 -1 - II



D.       Evidence About the Night of Tschenko' s Death


          One of Fedoruk' s nieces, Rimma Fedoruk, testified that on the night of Ischenko' s death,


she awoke at around 3: 00 or 4: 00 a.m. to find Fedoruk in her bedroom. Fedoruk asked her if she


had been    raped, said     that he had " had a vision,"            and then made a punching motion in the air and

said   that he was " going to take         care of     it because he has        a   lot   of strength right now."      VRP at


518 -20, 527.


          The medical examiner testified that Ischenko died from blunt force trauma, and possibly

also strangulation. A crime laboratory analyst testified that the DNA (deoxyribonucleic acid)

profile obtained from bloodstains on Fedoruk' s clothing matched Ischenko' s. DNA from

numerous bloodstains at the end of the driveway also matched Ischenko' s profile, as did DNA in

blood obtained from under Fedoruk' s fingernails.


E.        Closing Argument

          The   prosecutor     began her closing           argument       by   stating, "   It' s been a long week. You' ve

heard from 32        witnesses   from the State.           Sergey       Fedoruk is guilty      of murder      two."   VRP at 1771-


772. After going through the elements of the crime as charged, the prosecutor asked the jury,

 What    are   the   agreements       in this   case ?"    VRP     at   1775. She then discussed the physical evidence


presented in this context, repeatedly referring to matters on which the defense presented no

evidence as " agreements."             VRP      at   1776 ( " Both      sides can   absolutely    agree ...     that" Ischenko


was    beaten   or strangled    to death); VRP            at   1777 ( "Agreements. Absolute            agreements. ");    VRP at


1778 (   same).      The   prosecutor argued          that, based on these agreements, "[            i] dentity is the only

issue" remaining. VRP            at   1779.
No. 43693 -1 - II



         The      prosecutor     then turned to the theme of her argument: "                 Intuition is a powerful thing."

VRP at 1784. The prosecutor repeated this intuition theme several times in the course of


discussing testimony indicating that several of Fedoruk' s family members immediately suspected

Fedoruk of involvement in Ischenko' s disappearance.

            The State supplemented the argument with a PowerPoint presentation. On the first slide,


under   the   heading "     State   v.   Fedoruk,"    the words " Guilty Murder 2" appeared in large red letters.

Ex. 287. The next slide showed a photo of Ischenko, alive and smiling, under the heading

 Serhiy     Ischenko."       Ex. 287. The third shows Ischenko' s naked, battered body on the autopsy

table under the heading " Murder 2" in large red letters, which heading also appeared on each

subsequent slide. Ex. 287.


            The   slides   tracked the     prosecutor' s argument,      showing    various "[ a] greements,"          slides 14-


16,   and   the theme " Intuition         is   a   POWERFUL      thing" between    a   bullet    point   saying, "   Family

immediately        suspects      Defendant,"        and one   saying, " Richard   [ Dzhumaniyazov] finds body,

immediately        says arrest    him."        Ex. 287. One slide listing various " agreements" shows a photo of

Ischenko'     s   body lying     in the   ravine under    the   heading " Murder       2."    The presentation also


includes sound effects and animation, such as footprints appearing across the bottom of exhibit

287, slide 27, and concentric rings of a target, corresponding to various pieces of evidence,

appearing on the screen and culminating with an arrow pointing from the name " Sergey

Fedoruk" to the bullseye. Ex. 287.


            The prosecutor concluded the presentation by repeating the second and third slides,

described above, and showing another, larger image of Ischenko' s body in the ravine under the

heading " Murder           2."   Ex. 287. On the final         slide, under an enlarged "       Murder 2"     heading,   the
No. 43693 -1 - II



word " GUILTY" flashes, written with all capitals in a 96 -point red font. Ex. 287. As these


words and images appeared on the screen, the prosecutor delivered the following summation:

                       Serhiy    Ishchenko. He' s a brother. He was an uncle. He was a father. He
        was       a   tidy   man, a    hard   worker and considerate.           He was beaten to death, stomped
        to death, strangled to death. His body was left in a ravine and he was left for dead
        by the Defendant. Murder two. The Defendant is guilty, guilty, guilty. Thank you.

VRP at 1810. Fedoruk did not object to any portion of the State' s closing argument, or to the

PowerPoint presentation.


        In its closing, the defense sought to exploit the lack of direct testimony linking Fedoruk

to the killing. Fedoruk' s counsel also suggested that Ischenko' s estranged wife or

Dzhumaniyazov, the brother -in -law who first discovered Ischenko' s body, may have been

involved.


        The State            gave a   brief rebuttal, concluding          with "[   t]he Defendant is dressed in Serhiy

Ishchenko'    s   blood. There'         s   nothing   more   that   you need.       He'   s   guilty." VRP   at   1815.   The jury

returned a guilty verdict, finding by special interrogatory that Fedoruk committed intentional

murder, not felony murder predicated on assault. Fedoruk timely appeals.

                                                             ANALYSIS


                                               I. INEFFECTIVE ASSISTANCE OF COUNSEL


         Fedoruk contends that his counsel' s failure to timely investigate a mental health defense

by consulting with a qualified expert deprived Fedoruk of the effective assistance of counsel

guaranteed by the Sixth Amendment of the United States Constitution. We agree.




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No. 43693 -1 - II



A.          Standard of Review and Controlling Law

            We review claims of ineffective assistance of counsel de novo as they present mixed

questions of       law   and   fact. State     v.    A.N.J., 168 Wn.2d 91, 109, 225 P. 3d 956 ( 2010). A defendant


who raises an ineffective assistance claim " bears the burden of showing that ( 1) his counsel' s

performance         fell below      an objective standard of reasonableness and,                    if   so, (   2) that counsel' s poor


work prejudiced          him." A.N.J., 168 Wn.2d              at   109. "   The benchmark for judging any claim of

ineffectiveness must be whether counsel' s conduct so undermined the proper functioning of the

adversarial process        that the trial      cannot    be   relied on as       having     produced a      just   result."   Strickland


v.   Washington, 466 U. S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984). Although "[ t] here


is   a   strong   presumption       that   defense    counsel' s conduct         is   not   deficient," that presumption is


rebutted     if "no   conceivable          legitimate tactic    explain[ s]      counsel' s performance."             State v.


Reichenbach, 153 Wn.2d 126, 130, 101 P. 3d 80 ( 2004).


B.          Deficient Performance in Failing To Investigate Fedoruk' s Mental Health Defense

            Because "[    e] ffective assistance of counsel includes assisting the defendant in making an

informed decision         as   to   whether     to   plead   guilty   or   to   proceed     to trial,"   an attorney' s failure to

adequately investigate the merits of the State' s case and possible defenses may constitute

deficient performance. A.N.J., 168 Wn.2d at 111 ( citing State v. S.M., 100 Wn. App. 401, 413,

996 P. 2d 1111 ( 2000)). While


             t] he degree and extent of investigation required will vary depending upon the
            issues  and facts of each case, ... at the very least, counsel must reasonably evaluate
            the evidence against the accused and the likelihood of a conviction if the case
            proceeds to trial.


A.N.J., 168 Wn.2d at 111.




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No. 43693 -1 - II



           We will not generally hold deficient a defense attorney' s " strategic choices made after

thorough      investigation     of   law   and    facts   relevant   to   plausible options."   Strickland, 466 U. S. at


690 -91.     Where an attorney makes strategic choices " after less than complete investigation,"

however, a reviewing court will consider them reasonable only " to the extent that reasonable

professional     judgments      support      the limitations     on       investigation." Strickland, 466 U.S. at 690 -91.


Thus, "    counsel has a duty to make reasonable investigations or to make a reasonable decision

that   makes particular    investigations unnecessary."                    Strickland, 466 U. S.   at   691.   With respect to


the need for expert testimony, our Supreme Court has adopted the approach set forth by the

Ninth Circuit Court of Appeals:


                      Counsel have an obligation to conduct an investigation which will allow a
            determination of what sort of experts to consult. Once that determination has been
            made,  counsel must present those experts with information relevant to the
            conclusion of the expert."


In   re   Pers. Restraint of Brett, 142 Wn.2d 868, 881, 16 P. 3d 601 ( 2001) (                     quoting Caro v.

Calderon, 165 F. 3d 1223, 1226 ( 9th Cir. 1999)).


            The State correctly points out that the record on appeal does not make entirely clear what

investigation Fedoruk' s counsel may have conducted. Counsel' s statements at the hearing on the

motion to continue, however, establish that the defense had not retained a mental health expert or


had Fedoruk' s mental condition as of the date of the crime evaluated by a qualified mental health

professional. Initially, defense counsel described the basis for the continuance motion as

follows: "     an   issue has   arisen     that   creates a requirement ...         to pursue a defense theory not

previously pursued." VRP              at   395 ( emphasis      added).        Counsel further   stated    that "[ t] here was no




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No. 43693- 1- 11



evidence to support or suggest those defenses prior to" interviewing Fedoruk after the CrR 3. 5

hearing, and that " we have obtained other prior history that would go in aiding an evaluation at

this   point."   VRP at 398, 404. Under the circumstance presented here, we consider this record


sufficient to warrant our review.



          The extensive history of mental illness outlined above, all of which was available to the

defense from the beginning of the case, indicates that the decision not to seek to retain an expert

to evaluate Fedoruk until the day before jury selection fell below an objective standard of

reasonableness. Even if Fedoruk told counsel that he was not involved in Ischenko' s death and


did not wish to pursue a mental health defense, counsel could not have assisted him in making an

informed decision about the consequences of going to trial on a theory of general denial without

first getting an expert opinion regarding Fedoruk' s mental health at the time of the killing. In

light of the State' s strong circumstantial evidence against Fedoruk, the failure to obtain an

independent expert evaluation appears even less reasonable.


          The State relies on In re Personal Restraint ofDavis, 152 Wn.2d 647, 721 -32, 101 P. 3d 1

 2004),    in which our Supreme Court rejected a petitioner' s claim that counsel' s failure to present


a mental health defense during the guilt phase of a capital murder trial deprived him of effective

assistance. Davis is of little instruction here, however, because in that case defense counsel


retained    five   mental   health   experts prior   to trial. 152 Wn.2d at 723.


           Similarly, the State cites In re Personal Restraint ofElmore, 162 Wn.2d 236, 258 -59, 172

P. 3d 335 ( 2007),    which held defense counsel' s decision not to present mitigating mental health

evidence at sentencing reasonable. Elmore, however, is also of little instruction because counsel




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No. 43693 -1 - II



in that case had retained an expert prior to trial and fully investigated the defendant' s mental

health situation. Elmore, 162 Wn.2d at 245 -46, 258.


         The State also relies on Brett. In that case, the court found a defense attorney' s

performance fell below the standard of reasonableness based on several deficiencies, including

failure to investigate a mental health defense:


          W] hen counsel knew or had reason to know of a mental defect or illness affecting
         their client   in    a possible        death penalty    case,     counsel   could and should    have: ( 1)

         promptly    sought        the   appointment of cocounsel; (         2) presented a mitigation package
         to the   prosecutor       before   a   death penalty   notice was     filed; ( 3)   promptly investigated
         relevant mental       health issues; ( 4)     sought a    timely     appointment of     investigators; ( 5)

         sought a timely appointment of qualified mental health experts; and ( 6) adequately
         prepared for the penalty phase by having relevant mental health issues fully
         assessed and by retaining, if necessary, qualified mental health experts to testify
         accordingly.

142 Wn.2d at 882. The court specified, however, that


          w]hile the failure to perform one of these actions alone is insufficient to establish
         ineffective assistance of counsel, the failure to perform the combination of these
         actions establishes that defense counsel' s actions in Brett' s trial were not reasonable
         under the circumstances of the case.

142 Wn.2d    at   882 -83 (   emphasis omitted).         This suggests that in Brett' s context the failure to

investigate the mental health defense does not alone suffice to establish deficient performance.

         Certain of the other deficiencies the Brett court identified, however, also appear to be


present here. Specifically, Fedoruk' s counsel also did not seek " timely appointment of qualified

mental   health   experts,"    nor "     adequately   prepare[    d] ...    by retaining, if necessary, qualified

mental   health   experts     to   testify." 142 Wn.2d      at   882.      Other deficiencies identified by the Brett

court have no application here because this case was not bifurcated into guilt and penalty phases.

         The Brett court summarized the basis for its holding as follows:



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No. 43693 - 1 - II



         Counsel did not conduct a reasonable investigation into Brett' s medical conditions
         and    the   possible mental effects of such severe conditions.             Thus, Brett' s counsel
         was unable to make informed decisions about how to best represent him in both the
         guilt and penalty phases of the trial.

142 Wn.2d       at   883.   Viewed consistently with Brett, the failure to investigate a mental health

defense for Fedoruk fell below an objectively reasonable standard.

C.       Prejudice


         We now turn to the question of whether the failure to investigate prejudiced Fedoruk. To

merit reversal based on an ineffective assistance claim, a defendant has the burden to show a


reasonable probability that, but for the deficient performance, the result of the proceeding would

have been different. State         v.   Thomas, 109 Wn.2d 222, 226, 743 P. 2d 816 ( 1987). Under this


 reasonable probability" standard, the defendant " need not show that counsel' s deficient conduct

more   likely   than    not altered   the   outcome   in the   case,"   but must demonstrate a probability of a

more favorable result " sufficient to undermine confidence in the outcome" actually obtained.

Strickland, 466 U.S. at 693 -94. The defendant must make this showing " based on the record

developed in the trial        court."   State v. McFarland, 127 Wn.2d 322, 337, 899 P. 2d 1251 ( 1995).

         The State contends that Fedoruk does not meet these standards because he cites to

nothing in the record showing that any expert would be able to testify that he was legally insane

or lacked the capacity to form the necessary intent. The State rests this contention on State v.

Turner, 143 Wn.2d 715, 730, 23 P. 3d 499 ( 2001), in which our Supreme Court rejected a


defendant' s argument that his attorney' s failure to present expert testimony in support of a

diminished capacity defense denied him the effective assistance of counsel. The Turner court




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No. 43693 -1 - II



reasoned that " Turner has failed to show that his counsel' s performance was deficient" because


     i] t cannot be determined from the record on appeal that any expert would have testified that

Turner lacked the ability to form the specific intent required to commit the crimes with which he

was charged."          143 Wn.2d at 730.


          The defendant in Turner was evaluated at Eastern State Hospital and found legally sane

at   the time    he   committed    his   crimes.       143 Wn.2d at 721.      Here, in contrast, Fedoruk was only

evaluated for competency to stand trial, not for legal sanity at the time of the killing. The

examining psychologist expressly opined that " Fedoruk does have a major mental illness, but he

is not currently experiencing symptoms of a mental disease or defect that would" render him

incompetent to         stand   trial. CP   at   45 (   emphasis added).      The facts underlying Turner are distant

enough from those presented here to rob it of any precedential force in this appeal.

          On the other hand, evidence in the record, discussed above, shows that Fedoruk had


already been found not guilty by reason of insanity of a number of felony charges, based on

evaluations from two qualified professionals. His history of serious mental illness is well

documented, as set out in the Facts, above. His actions on the night of the killing were bizarre

under any yardstick, as shown by testimony described above. Furthermore, the State conceded

in the trial court that Fedoruk had " a legitimate basis to raise the defense" and that " it could

change     the   outcome of      the trial."    VRP      at   401.   This evidence shows a reasonable likelihood that


the outcome of the trial would have differed had Fedoruk been able to present an insanity or

diminished capacity defense.               Although not conclusive, this evidence is sufficient to


demonstrate a probability of a more favorable result " sufficient to undermine confidence in the

outcome" actually obtained. Strickland, 466 U. S. at 694. With that, Fedoruk was prejudiced by


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No. 43693 -1 - II



the failure to investigate a mental health defense. Accordingly, Fedoruk received ineffective

assistance of counsel, and we reverse his conviction. 3

                                      II. PROSECUTORIAL MISCONDUCT


        Fedoruk contends that the prosecutor committed flagrant and ill-intentioned misconduct


in closing argument, misconduct that merits review despite defense counsel' s failure to object.

Specifically, Fedoruk claims that the prosecutor ( 1) undermined the presumption of innocence by

telling the jury that Fedoruk' s failure to rebut portions of the State' s evidence amounted to

 agreement" with     the State'   s case; (   2) encouraged the jury to decide the case based on irrational

considerations rather   than   probative evidence and sound reason; (       3) showed the jury evidence

not admitted at trial; and ( 4) invaded the province of the jury by expressing personal opinions on

questions of fact.


        We agree that some of the prosecutor' s actions constituted misconduct. However,


because we reverse this case on other grounds, we do not address whether Fedoruk waived this

challenge or whether the prosecutor' s conduct prejudiced him. We address the prosecutorial


misconduct because it may arise on remand.

A.       Controlling Law

         To prevail on a prosecutorial misconduct claim, a defendant must show that the


prosecutor' s conduct was both improper and prejudicial " in the context of the record and all of




3 Fedoruk also argues that his counsel unreasonably failed to object to the State' s closing
argument. Because we reverse based on ineffective assistance of counsel for failing to
investigate a mental health defense, we need not address this argument. For the same reason, we
need not address Fedoruk' s argument that the trial court erred in denying his motion for a
continuance.




                                                          17
No. 43693 -1 - II



the circumstances          of   the trial."    In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286

P. 3d 673 ( 2012). To establish prejudice, the defendant must " show a substantial likelihood that


the   misconduct affected            the   jury   verdict."     Glasmann, 175 Wn.2d at 704. A defendant who


failed to object at trial must also establish " that the misconduct was so flagrant and ill intentioned

that   an   instruction    would not         have   cured    the   prejudice."            Glasmann, 175 Wn.2d at 704.


            A   prosecutor who "`          throw[ s] the     prestige of        h[ er]    public office ...    and the expression of


h[ er]   own    belief    of guilt    into the    scales against        the    accused '      deprives the defendant of the


constitutional right to a fair trial. Glasmann, 175 Wn.2d at 703 -04 ( quoting State v. Monday,

171 Wn.2d 667, 677, 257 P. 3d 551 ( 2011)) (                       alteration        in   original) ( internal   quotation marks


omitted).       A prosecutor enjoys " wide latitude to argue reasonable inferences from the evidence,"

but " must      ` seek convictions         based only        on probative evidence and sound reason. "'                  Glasmann,


175 Wn.2d at 704 ( quoting State v. Casteneda- Perez, 61 Wn. App. 354, 363, 810 P. 2d 74

 1991)).        A   prosecutor,      furthermore, '      should not use arguments calculated to inflame the

passions or prejudices of              the   jury.'" Glasmann, 175 Wn.2d at 704 ( quoting AM. BAR ASS' N,

STANDARDS           FOR   CRIMINAL JUSTICE            std.   3- 5. 8(   c) (   2d   ed.   1980)).    Although a prosecutor may

 point out a lack of evidentiary support for the defendant' s theory of the case" or " state that

certain     testimony is not denied,              without reference            to   who could       have denied it," State v. Sells,


166 Wn.         App. 918,       930, 271 P. 3d 952 ( 2012),             review       denied, 176 Wn.2d 1001 ( 2013), the .


general rule is that the State " cannot comment on the lack of defense evidence because the

defense has         no   duty   to   present evidence."         State v. Cheatham, 150 Wn.2d 626, 652, 81 P. 3d 830


 2003).




                                                                          18
No. 43693 -1 - II



         In Glasmann, the prosecutor used a PowerPoint presentation featuring images taken from

a security camera video, pictures of the victim' s injuries, and the defendant' s booking

photograph, with added commentary and text taken from trial testimony or witnesses' recorded

statements.    175 Wn.2d      at   701.   A series of slides repeatedly featured the booking photo

superimposed with the word " GUILTY" in red letters. Glasmann, 175 Wn.2d at 702. As the


slides appeared on the screen, the prosecutor delivered the following summation:

                      You' ve been provided with a number of lesser crimes if you believe the
         defendant is not guilty of the crimes for which the State has charged him, but the
         evidence in this case proves overwhelmingly that he is guilty as charged, and that' s
         what the State asks you to return in this case: Guilty of assault in the first degree;
         guilty of attempted robbery in the first degree; guilty of kidnapping in the first
         degree;    and   guilty   of   obstructing   a police officer.    Hold him accountable for what
         he did on October 23rd, 2004, by finding him guilty as charged. Thank you."
Glasmann, 175 Wn.2d at 702. The defense did not object. Glasmann, 175 Wn.2d at 702.


         In holding that the prosecutor committed flagrant and ill-intentioned misconduct, the

Glasmann      court relied on      the fact that "[   o] ur courts have repeatedly and unequivocally

denounced the type        of conduct      that occurred in this   case."   175 Wn.2d at 704. First, the


Glasmann      court   noted the "'   long- standing rule [that] consideration of any material by a jury not

properly admitted as evidence vitiates a verdict when there is a reasonable ground to believe that

the defendant may have been             prejudiced. "'   175 Wn.2d at 705 ( quoting State v. Pete, 152 Wn.2d

546, 555   n. 4,   98 P. 3d 803 ( 2004)) ( internal      quotation marks omitted).     In rejecting the State' s

argument that it had merely combined properly admitted evidence with argument based on the

law and facts, the Glasmann court held that " the prosecutor' s modification of photographs by

adding   captions was      the   equivalent of unadmitted evidence,"          and " a prosecutor must be held to




                                                             19
No. 43693 -1 - II



know that it is improper to present evidence that has been deliberately altered in order to

influence the    jury' s   deliberations."         175 Wn.2d at 706.


         The Glasmann court next pointed out that " a prosecutor cannot use his or her position of


power and prestige to sway the jury" and quoted at length from the commentary to the American

Bar Association, Standards for Criminal Justice:


                 The prosecutor' s argument is likely to have significant persuasive force
         with     jury. Accordingly, the scope of argument must be consistent with the
                the

         evidence and marked by the fairness that should characterize all of the prosecutor' s
         conduct. Prosecutorial conduct in argument is a matter of special concern because
         of the possibility that the jury will give special weight to the prosecutor' s
         arguments, not only because of the prestige associated with the prosecutor' s office
         but also because of the fact -finding facilities presumably available to the office."

175 Wn.2d      at   706 ( quoting commentary to            std.   3 - 5. 8).    The court went on to discuss the " many

cases warn[    ing]   of   the   need   for   a prosecutor   to   avoid      expressing   a personal opinion of guilt," and




held that "[   b] y expressing his personal opinion of.Glasmann' s guilt through both his slide show

and   his closing     arguments,    the       prosecutor engaged        in     misconduct."   175 Wn.2d at 706 -07.


B.       Expressions of Personal Opinion and Presentation of Unadmitted Evidence


         Here, the trial court admitted no photos of Ischenko' s body with " Murder 2" appearing in

large red letters above them. Yet the State presented four such images to the jury during closing

argument.      As in Glasmann, " the            multiple altered photographs here may well have affected the

jurors' feelings about the need to strictly observe legal principles and the care [ they] must take in

determining [ the      defendant'       s]   guilt."   175 Wn.2d at 706.


         The State correctly points out that the presentation here differs in some respects from that

in Glasmann. With the exception of the red " Murder 2" heading that appeared over all but two

of the slides, the presentation here did not combine images from the evidence with testimony and


                                                                  20
No. 43693 -1 - II



argument.         In   some ways,          however, the        presentation         here is   more egregious:   although the



prosecutor here did not superimpose the word " guilty" over a picture of Fedoruk, she did flatly

state   that "[   t] he Defendant is guilty, guilty, guilty" while flashing the word " GUILTY" in front

of   the   jury   in large,      red, capital       letters   on a screen         bearing   the   heading " Murder   2."   VRP at


1810; Ex. 287,             slide   35. The prosecutor in Glasmann at least couched his assertions of guilt in


terms of what the evidence showed and the verdict the State asked jurors to return.


            Here, the prosecutor did not make the challenged statements only in rebuttal as a fair

response to defense counsel' s arguments, but began and ended her prepared remarks with direct

assertions of Fedoruk' s guilt. The assertion of guilt that concluded her prepared remarks


followed not a summary of the evidence, but a discussion of Ischenko' s virtues, inviting the jury

to decide the case based on sympathy. The prosecutor here did not couch her assertions of guilt

in terms of the evidence in the case, and she reinforced those assertions with inflammatory

images similar to those held improper in Glasmann. The prosecutor conveyed to the jury her

personal opinion that Fedoruk was guilty. This argument was improper.

C.          Appeal to Intuition


            In addition, the prosecutor' s argument suggested that the jurors should take the fact that


Fedoruk' s family members suspected Fedoruk based on their " intuition" as evidence of his guilt,

going      so   far   as   to   state   that "[   t]he whole family doesn' t buy [ Fedoruk' s story] because their

intuition has told them the truth." VRP                         at   1801.    This argument encouraged jurors to decide the

case    based     on considerations other               than " probative evidence and sound                reason."    Casteneda-


Perez, 61 Wn.              App.    at   363. Further, the prosecutor here did not make these arguments in


rebuttal as a fair response to some related argument by the defense. Instead, this appeal to the


                                                                             21
No. 43693 -1 - II

                                                                                                                 J


jury to infer guilt from others' intuitions served as the theme of her prepared remarks. Therefore,

this argument was improper.


D.       Characterization of Fedoruk' s Failure to Rebut the State' s Evidence as " Agreement"


         In closing, the prosecutor also repeatedly referred to matters on which the defense

presented no evidence as " agreements" between both sides. VRP at 1776. This characterization


plainly conveyed that Fedoruk had made an affirmative assertion about a matter by presenting no

evidence on it. In doing so, the prosecutor presented a false depiction of what Fedoruk said and

undermined the presumption of innocence by transmuting the defendant' s silence into evidence

against him. The State points out that the prosecutor " couched the term `agreement' in what was

the   undisputed and uncontroverted evidence."         Br. of Resp' t at 65. Although true, at least in the

first instance that the prosecutor used the word, this falls far short of establishing that the

remarks did not effectively comment on Fedoruk' s failure to present evidence. As Fedoruk

points out, the State argued based on the purported agreements that only one issue remained:

identity. Under Cheatham, 150 Wn.2d at 652, the prosecutor effectively commented on the lack

of defense evidence by arguing that because he did not present contrary evidence, Fedoruk

agreed with the State' s position. This, also, was improper.


         In legal doctrines,   some   distinctions   seem cut with a   jeweller'   s eye.   Others seem more a


work of watercolor, with one shade blurred into another. Although the line between zealous


advocacy and improper argument may seem drawn in part in watercolor, the conduct at issue

here fell outside its blurred zones. The prosecutor' s actions described above constituted

misconduct.




                                                        22
No. 43693 -1 - II



         A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for public


record in accordance with RCW 2. 06. 040, it is so ordered.


                     III. THE TRIAL COURT' S REFUSAL To INSTRUCT THE JURY ON
                            MANSLAUGHTER AS A LESSER INCLUDED OFFENSE


         Fedoruk argues that the trial court violated his statutory and constitutional rights to have

the jury consider first degree manslaughter as a lesser included offense of second degree

intentional   murder.   Under State    v.   Workman, 90 Wn.2d 443, 447 -49, 584 P. 2d 382 ( 1978), the


resolution of that challenge depends in part on the evidence introduced. Because the evidence


introduced on remand may differ from that in the record before us, we decline to address this

issue.


                    IV. DENIAL OF THE DEFENSE MOTION To SUPPRESS FEDORUK' S
                                     STATEMENTS TO LAW ENFORCEMENT


         Fedoruk argues that the trial court erred in admitting various statements he made to law

enforcement officials     for   one or more of   three different   reasons: (   1) he did not make the


statements    voluntarily; ( 2)   he made the statements under custodial interrogation without having

been advised of his Miranda rights; and ( 3) the officials failed to scrupulously honor Fedoruk' s

initial invocation of his right to remain silent. Fedoruk assigns error to 20 of the findings and


conclusions the trial court entered following the CrR 3. 5 hearing. Because we reverse Fedoruk' s

conviction for the reasons set out above, it is not necessary to decide whether any error in

admitting Fedoruk' s statements also warrants reversal. However, because the issues may arise

on retrial, we address them in the interest ofjudicial economy.




                                                        23
No. 43693- 1- 11



A.        Voluntariness


          In reviewing a due process claim that a suspect made statements to police involuntarily,

we consider whether, under the totality of the circumstances, including the suspect' s powers of

resistance and        the   pressure   brought to bear   by   the interrogators, the "` defendant' s will was


overborne. "'     Dickerson v. United States, 530 U. S. 428, 433 -34, 120 S. Ct. 2326, 147 L. Ed. 2d


405 ( 2000) ( quoting         Schneckloth v. Bustamonte, 412 U.S. 218, 225 -26, 93 S. Ct. 2041, 36 L. Ed.

2d 854 ( 1973)).        The voluntariness inquiry is necessarily fact -specific. Gallegos v. Colorado,

370 U.S. 49, 52, 82 S. Ct. 1209, 8 L. Ed. 2d 325 ( 1962). "                   The length of the questioning, the use

of   fear to break     a suspect, [    and] the youth of the accused are illustrative of the circumstances on


which cases of        this kind turn."     Gallegos, 370 U. S.      at   52 ( citations   omitted).   Also relevant is


 the failure of police to advise the defendant of his rights to remain silent and to have counsel

present      during   custodial   interrogation."    Withrow v. Williams, 507 U. S. 680, 693 -94, 113 S. Ct.


1745, 123 L. Ed. 2d 407 ( 1993) (            citations omitted).




             We reject Fedoruk' s due process argument because, other than the acts involved in


detaining him, Fedoruk does not allege that the authorities applied any pressure whatsoever to

get him to answer their questions. In essence, he argues that, given his mental illness, these acts


alone sufficed to overbear his will. However, he cites no authority for such a proposition. In

State   v.   Aten, 130 Wn.2d 640, 665, 927 P. 2d 210 ( 1996), our Supreme Court rejected a similar


claim:




             although Respondent was diagnosed as suffering from grief and depression, there
             is no evidence that officers deliberately exploited her mental condition to obtain
             her statement or acted in a way that would overcome her will to resist giving a
             statement.




                                                               24
No. 43693 -1 - II



             To illustrate the kind of showing necessary to establish that statements were involuntary,

in a recent federal case involving a 17- year -old suspect, Doody v. Ryan, 649 F. 3d 986 ( 9th Cir.

2011),   the court held a confession involuntary where teams of police officers interrogated the

boy in shifts for over 12 hours. Fedoruk does not come close to making such a showing here.

The trial court did not err in concluding that Fedoruk made his statements to police voluntarily.

B.           Miranda Violations


             We consider unchallenged findings of fact entered by a trial court after a CrR3. 5 hearing,

as well as findings supported by substantial evidence in the record, verities on appeal. State v.

Lorenz, 152 Wn.2d 22, 36, 93 P. 3d 133 ( 2004).          In evaluating a claim that a defendant' s

statements are inadmissible under Miranda and its progeny, however, we review de novo a trial

court' s rulings that a suspect was or was not in custody, invoked the right to remain silent,

initiated further conversation with police, or has knowingly and intelligently waived his Miranda

rights. See In re Pers. Restraint of Cross, 180 Wn.2d 664, 680 -81, 327 P. 3d 660 ( 2014)

 invocation and custody present mixed questions of law and fact subject to de novo review);

State   v.   Daniels, 160 Wn.2d 256, 261, 156 P. 3d 905 ( 2007) ( Miranda issues are questions of


law); Terrovona       v.   Kincheloe, 852 F. 2d 424, 428 ( 9th Cir. 1988) ( voluntariness of waiver of the


right   to remain silent " is essentially a   legal judgment ").   We are not bound by a trial court' s

mischaracterization of a legal conclusion as a finding of fact. State v. Ross, 141 Wn.2d 315, 309-

10, 4 P. 3d 130 ( 2000).




                                                        25
No. 43693 - 1 - II



          1.    Custodial Interrogation While on the Porch


         Fedoruk argues that the trial court erred in admitting statements he made while on the

porch at his home prior to being advised of his Miranda rights because he made them under

custodial interrogation. We agree.


         A person questioned by law enforcement officers after being " taken into custody or

otherwise deprived of his freedom of action in any significant way" must first "be warned 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." Miranda, 384 U.S. at 444. Failure to


give these advisements renders any statements elicited inadmissible for most purposes in a

criminal trial. Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 128 L. Ed. 2d 293

 1994). The requirement that police administer Miranda advisements does not attach, however,


until " there has been such a restriction on a person' s freedom as to render him in custody."

Oregon     v.   Mathiason, 429 U. S. 492, 495, 97 S. Ct. 711, 50 L. Ed. 2d 714 ( 1977) ( internal


quotation marks omitted).



          Whether someone is in custody depends on all of the circumstances surrounding the

interrogation, but " the ultimate inquiry is simply whether there [ was] a ` formal arrest or restraint

on   freedom      of movement' of        the degree     associated with a     formal   arrest."   California v. Beheler,


463 U. S. 1121, 1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 ( 1983) (                     quoting Mathiason, 429 U.S. at

495);   accord Daniels, 160 Wn.2d at 266. In determining whether a suspect is in custody, courts

conduct an objective inquiry:

               Two discrete inquiries are essential to the determination: first, what were the
          circumstances          surrounding           the   interrogation;     and     second,     given    those

          circumstances, would a reasonable person have felt he or she was at liberty to
          terminate the interrogation            and   leave. Once the scene is set and the players' lines


                                                                26
No. 43693 - 1 - II



         and actions are reconstructed, the court must apply an objective test to resolve the
         ultimate inquiry:.was there a formal arrest or restraint on freedom of movement of
         the degree associated with formal arrest."

J.D.B.   v.   North Carolina, - -- U. S. - - -, 131 S. Ct. 2394, 2402, 180 L. Ed. 2d 310 ( 2011) ( quoting


Thompson        v.   Keohane, 516 U. S. 99, 112, 116 S. Ct. 457, 133 L. Ed. 2d 383 ( 1995)) ( internal


quotation marks omitted) ( footnote omitted).         Thus, a reviewing court considers the situation

from the point of view of a reasonable person in the suspect' s position, but does not consider the


subjective beliefs or intentions of either the suspect or the police.


         Here, five armed and uniformed officers confronted Fedoruk at his house. They

repeatedly told him to keep his hands out of his pockets and prohibited him from going back

inside the house. Before asking Fedoruk about Ischenko' s car, the officers handcuffed him and

ordered him to sit on the porch. At this point, no reasonable person could have felt free to


terminate the questioning and leave: indeed, Fedoruk apparently tried to do so a number of times

but was ordered to stay put. See Orozco v. Texas, 394 U.S. 324, 89 S. Ct. 1095, 22 L. Ed. 2d 311

 1969) (      suspect surrounded by four officers in his bedroom was in custody).

           We hold that, once handcuffed and ordered to sit on the porch, Fedoruk was in custody

for purposes of Miranda. The trial court erred in concluding that Fedoruk was not in custody

until placed in the patrol car and in admitting statements Fedoruk made after being cuffed but

before Deputy Robinson administered the Miranda warnings.

           2. Fedoruk' s Unprompted Statements to Robinson in the Patrol Car


           Fedoruk argues that the trial court also erred in admitting the statements he made to

Deputy Robinson in the patrol car after being read the Miranda warnings because police




                                                        27
No. 43693 -1 - II



continued to interrogate him after he unequivocally invoked the right to remain silent. We agree

with the trial court that Fedoruk unequivocally invoked his right to remain silent when he told

Deputy   Robinson, " I don' t     want     to talk to       you."     VRP   at   193.   Because Fedoruk' s statements to


Deputy Robinson were not the product of interrogation, however, the prophylactic rules laid

down in Miranda do not apply, and Fedoruk' s invocation of the right to remain silent thus has no

bearing on the statements' admissibility.

         The trial court found that Fedoruk' s statements to Deputy Robinson were " spontaneous"

and concerned "      the   specific considerations of           the   case,"     concluding that Fedoruk " initiated this

conversation and      thus   waived      his   right   to   remain silent."       CP at 9. Whether Fedoruk validly

waived his rights, however, is not the proper inquiry.

         The United States Supreme Court has specified that


         the special procedural safeguards outlined in Miranda are required not where a
         suspect is simply taken into custody, but rather where a suspect in custody is
         subjected    to interrogation ...         the Miranda safeguards come into play whenever a
         person in custody is subjected to either express questioning or its functional
         equivalent {, t] hat   is ...     any words or actions on the part of the police ( other than
         those normally attendant to arrest and custody) that the police should know are
         reasonably likely to elicit an incriminating response.

Rhode Island    v.   Innis, 446 U. S. 291, 300 -01, 100 S. Ct. 1682, 64 L. Ed. 2d 297 ( 1980). Thus, in


State v. McIntyre, we held admissible McIntyre' s spontaneous in- custody statements, made prior

to receiving the Miranda warnings, on the grounds that the statement was not prompted by

questioning or other conduct equivalent to interrogation, and the actions of the police were

merely those normally attendant to arrest. 39 Wn. App. 1, 6, 691 P. 2d 587 ( 1984).

         By merely returning to the patrol car to retrieve some papers, Deputy Robinson did not

do anything that he should have known was reasonably likely to elicit an incriminating response:


                                                                    28
No. 43693 - 1 - II



Deputy Robinson' s conduct was merely that normally attendant to arrest and custody. Fedoruk' s

statement in the patrol car was thus not the product of interrogation, and the Miranda safeguards


do not apply. The trial court did not err in admitting Fedoruk' s statements to Deputy Robinson

in the patrol car.


         3.   Fedoruk' s Statements to Gilchrist


         Even with the conclusion that Fedoruk' s unprompted statements in the patrol car were

admissible, we cannot accept the trial court' s conclusion that Fedoruk' s statement to Detective


Reece, " I don' t    want   to talk to   you,"   VRP at 242 -43, qualified as a knowing and intelligent

waiver of the right to remain silent with respect to Deputy Gilchrist.

         The admissibility of statements obtained by interrogation after a person in custody has

invoked his    or    her Miranda     rights   depends   on whether       the   authorities "`   scrupulously honored '

the suspect' s right to cut off questioning. Michigan v. Mosley, 423 U.S. 96, 103, 96 S. Ct. 321,

46 L. Ed. 2d 313 ( 1975) ( quoting Miranda, 384 U. S.               at   479). Police may subject a suspect who


invoked the right to counsel to further interrogation if (1) the suspect subsequently initiated

further communication with officers, and ( 2) the suspect knowingly and intelligently waived the

previously asserted right. Oregon v. Bradshaw, 462 U. S. 1039, 1044, 103 S. Ct. 2830, 77 L. Ed.

2d 405 ( 1983) (     holding that " even if a conversation [ following invocation of the right to counsel]

is initiated by the accused, where reinterrogation follows, the burden remains upon the

prosecution    to    show   that   subsequent events    indicated   a waiver ");      Aten, 130 Wn.2d at 666. The


analysis is generally the same for the right to remain silent. See Berghuis v. Thompkins, 560 U.S.

370, 381, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 ( 2010).




                                                            29
No. 43693 -1 - II



           Whether      a suspect, after       invoking   his Miranda         rights, "    initiate[ d]" further discussion


depends on whether the suspect' s subsequent statement " evinced a willingness and a desire for a

generalized      discussion      about   the investigation,"       or was " merely a necessary inquiry arising out of

the incidents of the       custodial     relationship."        Bradshaw, 462 U.S. at 1045 -46. Whether a


purported waiver of the right to counsel or the right to remain silent is valid depends on the


totality   of   the   circumstances, "`       including the necessary fact that the accused, not the police,

reopened      the     dialogue   with   the   authorities. '    Bradshaw, 462 U.S. at 1046 ( quoting Edwards v.

Arizona, 451 U. S. 477, 486 n. 9, 101 S. Ct. 1880, 68 L. Ed. 2d 378 ( 1981)).


              A] suspect may, if he chooses, selectively waive his Fifth Amendment rights by

indicating      that he   will respond        to some questions,        but   not   to   others."   United States v. Lorenzo,


570 F. 2d 294, 297 -98 ( 9th Cir. 1978). A                suspect' s waiver of           Miranda     rights,   furthermore, " is not


irrevocable[:]         Miranda and its progeny allow an interrogee effectively to withdraw his waiver

and   fully   assert    his Fifth Amendment          rights    in the   midst of     the interrogation process."         Lorenzo,


570 F.2d at 297.


           Deputy Gilchrist admitted that, when he interpreted the sentence " I don' t want to talk to

you" as an expression of Fedoruk' s willingness to speak to him in Detective Reece' s absence, he


was under the erroneous understanding that Fedoruk had previously expressed to Deputy

Robinson a willingness to speak to police. VRP at 195 - 197. As discussed, the trial court


correctly determined that the same words, when previously spoken to Deputy Robinson,

constituted an unequivocal invocation of Fedoruk' s right to remain silent. The difference


between the two situations is only that two officers were present in the second instance, and

Fedoruk allegedly pointed at one, Detective Reece, as he uttered the words. The record makes


                                                                   30
No. 43693 -1 - II



clear, however, that Detective Reece was the lead investigator in charge of the interrogation and


that Fedoruk' s hands were cuffed together. Thus, Fedoruk was only capable of pointing at one

officer at a time, and pointed to the officer in charge of the interrogation. We hold that, by

interrogating Fedoruk for an hour and a half without further clarification, Deputy Gilchrist failed

to " scrupulously honor[]" Fedoruk' s invocation of his right to remain silent. Miranda, .384 U :S.


at 479. The trial court erred in admitting the statements Fedoruk made to Deputy Gilchrist.

                                          CONCLUSION


        We hold that defense counsel' s failure to timely retain a mental health expert or

investigate the possibility of a mental health defense amounted to deficient performance and that

Fedoruk has shown a reasonable probability that the deficient performance prejudiced him.

Accordingly, we reverse Fedoruk' s conviction and remand for further proceedings consistent

with this opinion.




                                                                       A,cX
 We concur:




 MAxn




 L




                                                 31
