                                                                         FILED
                                                                      AUGUST 6, 2015
                                                                 In the Office of the Clerk of Court
                                                               W A State Court of Appeals, Division III




            IN TIlE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                                DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )         No. 32268-8-111
                      Respondent,             )
                                              )
       v.                                     )
                                              )
ERIC MARCEL HARRIS,                           )         UNPUBLISHED OPINION
                                              )
                      Appellant.              )

       KORSMO, J. -    Eric Harris appeals his second degree murder conviction for the

shooting death of his brother, arguing that the trial court erred by admitting his statement

to law enforcement, in excluding proffered defense testimony, and in finding chemical

dependency . We affirm.

                                          FACTS

       Eric Harris shot his brother, Larch Harris, with a shotgun during a confrontation

witnessed by several others. He was arrested the next day. Once at the jail, Deputy
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Sheriffs Michael Gilmore and Michael George sought to interview him at the Stevens

County Jail. They obtained Mr. Harris's consent to record and informed him of his
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Miranda rights including the right to have an attorney present during questioning. Mr.                    I
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Harris averred that he understood his rights, but waivered on the decision to request an
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No. 32268-8-III
State v. Harris


attorney, saying "well I don't know. I think I should probably have an attorney present."

The following exchange occurred:

       GILMORE: Okay.
       HARRIS: (Inaudible) telling you, I mean --. I don't know. This is
       (inaudible).
       GILMORE: All right. It's your -- it's your prerogative, man. I mean, it is
       what it is. We've only got one side of it, but I don't want to force you into

       HARRIS: Well, there's only going to be one side. The other guy's dead.
       GILMORE: Well, I haven't heard from you -- ... See what I'm saying?
       HARRIS: Right.
       GILMORE: So, -- Like I say, I'm not -- I'm not going to push it -- on
       you. If you choose to talk to an attorney, that's fine. If you -- if you
       choose to talk to us, that's fine, too. But its - its [sic] got to be your
       decision, man.
       GEORGE: Got to be your decision, Eric.
       HARRIS: Let's just get it done.

Report of Proceedings (RP) at 24-25.

       Mr. Harris proceeded to explain the events leading up to his arrest; he admitted

that he fired the fatal shot. Prior to trial, he moved to suppress those statements. The

trial court denied the motion, determining that Mr. Harris voluntarily waived his right to

counsel. In so deciding, the trial court noted that his initial statement was equivocal and

the ensuing colloquy to confirm whether he was invoking the right was proper.

       The matter proceeded to jury trial on charges of first degree murder and unlawful

possession of a firearm. The recorded interview was played for the jury during testimony

from the two deputies. In addition, the State presented evidence from eyewitnesses,

forensic experts, and investigators. To buttress its proof of premeditation, the State

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No. 32268-8-111
State v. Harris


enlisted the testimony of Mr. Harris's cellmate, Shane Lyng. Among other items, Mr.

Lyng's testimony included evidence that Mr. Harris lacked remorse for killing. In turn,

Mr. Harris proffered two witnesses to rebut the testimony, arguing that the witnesses

were intended as fact witnesses of Mr. Harris's post-incident but pre-arrest demeanor and

the fact that he was crying. The trial court found that evidence of his demeanor at the

time of the arrest was irrelevant and that his conduct of crying was being offered as an

assertion and therefore excluded as hearsay.

      The jury acquitted Mr. Harris of first degree murder, but found him guilty of the

possession charge and of the lesser included crime of second degree murder. At

sentencing, the trial court determined that Mr. Harris had a chemical dependency based

on testimony that much of the conflict between him and his brother had been fueled by

drugs and alcohol. The court ordered drug and alcohol treatment and random urinalysis

upon his release. Mr. Harris then appealed to this court.

                                       ANALYSIS

      Mr. Harris contends that the trial court should have excluded his statement to the

police, should have permitted defense testimony about his remorse, and should not have

found him chemically dependent. We address the contentions in that order.

Request for an Attorney during Police Interview

      This court reviews findings of fact from a erR 3.5 hearing for substantial evidence.

State v. Broadaway, 133 Wn.2d 118, 131,942 P.2d 363 (1997). Conclusions oflaw

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No. 32268-8-111
State v. Harris


derived from those findings, however, are given de novo review. State v. Gasteazoro-

Paniagua, 173 Wn. App. 751, 755, 294 P.3d 857, review denied, 178 Wn.2d 1019 (2013).

Unchallenged findings are verities on appeal. Id. Mr. Harris's challenge to the soundness

of the court's conclusion that his statement was equivocal is subject to de novo review.

       Custodial interrogations invoke a criminal suspect's Miranda rights. State v.

Radcliffe, 164 Wn.2d 900,905, 194 P.3d 250 (2008). Included in these rights is the right

to have counsel present during the interrogation. Miranda v. Arizona, 384 U.S. 436,444,

86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). A suspect may waive his or her right to counsel

and proceed with the questioning if done in an informed, voluntary manner. Radcliffe,

164 Wn.2d at 905-906. Once waived, a suspect may, at any time, change his or her mind

and request an attorney. Id. at 906. The questioning must cease. Edwards v. Arizona,

451 U.S. 477,484-485, 101 S. Ct. 1880,68 L. Ed. 2d 378 (1981). To invoke the right,

the request must be "unequivocal," meaning that the suspect "must articulate his desire to

have counsel present sufficiently clearly that a reasonable police officer in the

circumstances would understand the statement to be a request for an attorney." Davis v.

United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994). Accord,

Gasteazoro-Paniagua, 173 Wn. App. at 755-756.

       Alternatively, when a police officer reasonably cannot draw the conclusion that a

suspect desires counsel, he or she is under no compulsion to cease questioning. Radcliffe,

164 Wn.2d at 906. This distinction prevents the process from forming "irrational

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State v. Harris


obstacles to legitimate police investigative activity." Davis, 512 U.S. at 460. To hold

otherwise would needlessly prevent police from questioning a suspect even in situations

where the suspect did not wish to have a lawyer present. Id.

       Mr. Harris maintains that his statement, "[w]ell, I don't know. I think I should

probably have an attorney present," is an unequivocal invocation of his right to counsel.

We disagree. Washington courts do not consider statements that are accompanied by

conditions, words of ambiguity, or obfuscating language to be unequivocal. Radcliffe,

164 Wn.2d at 907 ("maybe [I] should contact an attorney"); State v. Herron, 177 Wn.

App 96,103,318 P.3d 281 (2013), review granted, 182 Wn.2d 1001,342 P.3d 326

(2015) (requesting an attorney "if I am going to get charged" and "if it goes farther");

Gasteazoro-Paniagua, 173 Wn. App. at 756 ("I guess I'll just have to talk to a lawyer

about it"). Here, Mr. Harris's statement was couched in terms of indecision and

ambiguity. He used the phrases "I don't know" and "should probably." These

obfuscating phrases were enough to cast doubt on whether he truly desired to have an

attorney present. When the detectives sought to clarify, Mr. Harris resolved any doubt on

the topic by saying "[l]et's just get it done." Thus the trial court correctly concluded that

Mr. Harris's statement was equivocal. There was no error.]



        ] We therefore need not decide whether any error was harmless in light of the
theory of self-defense. Mr. Harris did not testify and the only basis for the self-defense
instruction came through the admission of his statement to the deputies.

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No. 32268-8-111
State v. Harris


Relevance and Hearsay

       Next Mr. Harris contends that the trial court's exclusion of demeanor evidence

violated his Sixth Amendment right to present a defense because it prevented his rebuttal

of the State's evidence showing he lacked remorse. The trial court did not abuse its

discretion.

       The Sixth Amendment provides a criminal defendant the right to be "confronted

with the witnesses against him [and] to have compulsory process for obtaining witnesses

in his favor." State v. Smith, 101 Wn.2d 36,41,677 P.2d 100 (1984). In plain terms, it is

"the right to present a defense." Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18

L. Ed. 2d 1019 (1967). The right is not absolute, though, and does not extend protection

to irrelevant or immaterial evidence. Smith, 101 Wn.2d at 41; State v. Weaville, 162 Wn.

App. 801, 818,256 P.3d 426 (2011); State v. Aguilar, 153 Wn. App. 265, 275, 223 P.3d

1158 (2009).

       We review rulings on admissibility of evidence for abuse of discretion. State v.

Quaale, 182 Wn.2d 191,196,340 P.3d 213 (2014). An abuse of discretion exists "when

a trial court's exercise of its discretion is manifestly unreasonable or based on untenable

grounds or reasons" Id. at 197. Trial courts are given considerable discretion when it

comes to the admissibility of evidence to the point where "reasonable persons could take

differing views regarding the propriety of the trial court's actions." Id. at 196. To that

end, an abuse of discretion occurs where the ruling is contrary to law. Id. at 196-197.

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Absent an abuse of discretion, a trial court's ruling on the admissibility of evidence will

not be disturbed on appeal. Aguilar, 153 Wn. App. at 275.

       Relevant evidence means "evidence having any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence." ER 401. Testimony of a defendant's

demeanor is admissible if relevant. State v. Day, 51 Wn. App. 544, 552, 754 P.2d 1021

(1988). The threshold to admit relevant evidence is low and even minimally relevant

evidence is admissible. State v. Gregory, 158 Wn.2d 759, 835, 147 P.3d 1201 (2006).

Washington courts consider evidence of a defendant's conduct that tends to reveal the

defendant's consciousness of guilt to be relevant. State v. McGhee, 57 Wn. App. 457,

461,788 P.2d 603 (1990); State v. Kosanke, 23 Wn.2d 211,215, 160 P.2d 541 (1945).

Moreover, Washington courts have repeatedly permitted demeanor evidence when

offered to provide foundation for fact witnesses who testify to their own impressions. 2

       Here, Mr. Harris argues that the trial court erred in excluding the testimony of

Mary Lane Elizabeth concerning his demeanor on the day of the arrest, including his



       2 State v. Craven, 69 Wn. App. 581, 585,849 P.2d 681 (1993) (a social worker
properly testified to her observations of the defendant's difficulty in making eye contact
and the fact that she was staring at the floor during her interview); State v. Allen, 50 Wn.
App. 412, 418-419, 749 P.2d 702, review denied, 110 Wn.2d 1024 (1988) (detective
allowed to testify that the defendant's grief over her husband's death did not appear to be
sincere).



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No. 32268-8-111
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"reactions, the way he was acting, [and] the way he was carrying himself." RP at 1158.

He argued that the testimony was relevant because it would rebut Mr. Lyng's testimony

that he showed no remorse. The trial court disagreed and excluded the testimony as

irrelevant. Mr. Harris's proffered demeanor evidence was not probative rebuttal evidence

because he never tied this alleged remorse evidence to the killing. In contrast, the State's

demeanor evidence centered on Mr. Harris's attitude while he was in jail describing the

crime to his cellmate. There simply was no nexus between the defense "remorse"

evidence and the shooting. Absent testimony from Mr. Harris or a proffer that clearly

tied the remorse to the offense, it simply was not relevant. The trial court's conclusion

was not manifestly unreasonable under the circumstances.

       The trial court's conclusion also resonated with each party's respective theory of

the case. Mr. Harris advanced a theory of self-defense at trial, thereby relieving the jury

of deciding responsibility for the underlying act. In fact, he argued in closing that,

although he shot his brother, he did not aim to kill. RP at 1499, 1508-1509. In other

words, he conceded the killing but argued that it was justified. Therefore, testimony that

he demonstrated remorse does not make the fact that he committed the underlying act

more or less likely. The State, on the other hand, was attempting to prove premeditation

and argued that Mr. Harris's behavior after the shooting showed a consciousness of guilt

for forming the design to gun down his brother. Consequently, the ruling that evidence

of his lack of remorse could be included in the State's case while defense evidence of

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No. 32268-8-III
State v. Harris


remorse should be excluded was a proper application of ER 401. Because there is no

Sixth Amendment right to irrelevant evidence, there is no violation of Mr. Harris's right

to present a defense. Smith, 10 1 Wn.2d at 41.

       Next, Mr. Harris proffered Stacy Vollendorfto testify that she observed Mr. Harris

crying on the day following the shooting. The trial court excluded the evidence as

hearsay after finding that the defense intended to use it for the purpose of asserting that

the defendant was remorseful.

       Hearsay is defined as any statement ""other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted." ER 801 (c). This definition extends beyond spoken words to include writing or

even non-verbal conduct. ER 801(a); In re Dependency o/Penelope B., 104 Wn.2d 643,

652, 709 P.2d 1185 (1985). Conduct is considered a statement when it is ""assertive,"

meaning that it is intentionally being used as a substitute for words to express a fact or

opinion. Id at 652. By contrast, an involuntary act such as trembling is nonassertive

conduct. Id ""[G]reetings, pleasantries, expressions ofjoy, annoyance or other

emotions" are also considered nonassertive when they are not intentional expressions of

fact or opinion and thus fall outside of hearsay. Id. The burden is on the objecting party

to persuade the court that the conduct in question was intended as an assertion; doubtful

cases are resolved in favor of admissibility. Id. at 654. Nonassertive conduct is governed

by principles of relevance. Id. at 652-653.

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No. 32268-8-111
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       Here, the defense offered the fact that Mr. Harris was crying to make the assertion

to the jury that he felt remorseful. To the extent that the court correctly discerned that the

evidence was offered as a statement of remorse, it was properly excluded as hearsay. A

party's out-of-court statement is not hearsay when offered against the party. ER

80 1(d)(2)(i). However, when offered by the party, the normal rules against hearsay

apply. Mr. Harris could not offer his "statement" of remorse through another person.

       To the extent that this evidence was not a statement, but constituted simple

nonassertive conduct, it was not relevant for the same reasons that Ms. Elizabeth's

testimony was not relevant. Emotions, even those that evidence remorse, are not relevant

unless they related to the issues in the case. Mr. Harris wanted to establish that he was

remorseful about killing his brother, but never presented evidence connecting his

emotions the next day to the killing. He was free to so testify or otherwise establish a

connection, but he never did so.

       For both reasons, the trial court properly excluded the proposed rebuttal testimony.

There was no abuse of discretion. 3




       3 Here, too we need not address whether any error was harmless in light of the
acquittal on the first degree murder count to which the State's evidence of remorse was
directed.

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No. 32268-8-III
State v. Harris


Chemical Dependency Condition

       Lastly, Mr. Harris argues that the trial court lacked authority to impose drug and

alcohol treatment arguing that there was insufficient evidence to support the trial court's

finding of chemical dependency. We disagree.

       Crime related prohibitions are orders directly related to "the circumstances of the

crime." RCW 9.94A.030(1O). Determining whether a relationship exists between the

crime and the condition "will always be subjective, and such issues have traditionally

been leftto the discretion of the sentencing judge." State v. Parramore, 53 Wn. App.

527,530, 768 P.2d 530 (1989). Thus, we review sentencing conditions for abuse of

discretion. State v. Riley, 121 Wn.2d 22,37, 846 P.2d 1365 (1993). An abuse of

discretion occurs when the imposition of a condition is manifestly unreasonable. State v.

Valencia, 169 Wn.2d 782, 791-792, 239 P.3d 1059 (2010). Where a court finds that a

defendant suffers from a chemical dependency, it is authorized to impose conditions that

are reasonably necessary or beneficial in rehabilitating the offender. RCW 9.94A.607(1).

       Here, the trial court found that Mr. Harris suffered from a chemical dependency

based on collateral testimony from witnesses. The court explained that, based on this

testimony, it was alerted to the fact that much of the conflict between Mr. Harris and his

brother was fueled by drugs or alcohol. Consequently, the finding of chemical

dependency was not manifestly unreasonable in light of the record and the court did not

abuse its discretion. 	                                                                       ,
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No. 32268-8-111
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      Affirmed.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR: 




      Brown, A . .1.


In.~,.,,-,,<.<.. - ~v.r..<"11 

      Lawrence-Berrey, J.




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