                                                                                CD

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                      )      NO. 66858-7-1
                                          )
                      Respondent,         )      DIVISION ONE
                                          )
       v.                                 )
                                          )      UNPUBLISHED OPINION
PHONSAVANH PHONGMANIVAN,                  )
                                          )
                      Appellant.          )      FILED: June 24,2013
                                          )

       Leach, C.J. — Phonsavanh (Sam) Phongmanivan appeals his conviction

for first degree assault. He argues that the trial court violated his due process

rights by permitting a severely disabled victim to testify without first requiring a

full forensic neuropsychological examination to assess her competency to testify.

He also claims that the court improperly denied his motion to dismiss for

prosecutorial misconduct.     Because the court did not abuse its discretion on

either ruling, we affirm.

                                      FACTS


       On October 31, 2008, Margilynn Umali and her boyfriend, Phonsavanh

Phongmanivan, celebrated Halloween with several friends in the Belltown

neighborhood of Seattle.     As they walked through Belltown, two men started

flirting with Umali, and a fight broke out. Someone fired a gun, shooting Umali in
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the head. Phongmanivan and another man carried Umali to the car and took her

to the hospital. Umali survived the shooting, but a bullet remained lodged in her

brain, causing her to suffer from severe aphasia.1 Another victim, Roger Wright,

suffered gunshot wounds to his leg and buttocks.

       The State charged Phongmanivan with the shootings.               As Umali

recovered and began to regain her ability to speak, the State decided to call her

as a witness at trial. Phongmanivan questioned her ability to testify and submit

to meaningful cross-examination. The court held a competency hearing, at which

Umali testified, using a combination of oral and written responses, drawings, and

gestures to respond to questions. When asked about what happened the night

of the shooting, she drew a picture of Phongmanivan holding the gun. At the end

of the hearing, the court remarked, "[C]ertainly this is the most profoundly

disabled adult I've ever seen on the stand where testimony is being offered from

that witness," but he ultimately found Umali competent to testify.

       Before trial, Phongmanivan renewed his objection to Umali's testimony

and moved to compel a forensic psychological exam to determine her

competency and if the memories she professed were real or manufactured.

       1 "Aphasia" is defined as *"[a]ny of a large group of speech disorders
involving defect or loss of the power of expression by speech, writing or signs, or
of comprehending spoken or written language, due to injury or disease of the
brain or to psychogenic causes.'" Payne v. Astrue, No. 4:11-CV-01113, 2012 WL
5389705, at *5 n.16 (M.D. Pa. Nov. 2, 2012) (alteration in original) (quoting
Dorland's Illustrated Medical Dictionary 114 (32d ed. 2012)).
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Phongmanivan's expert questioned whether Umali understood the events

surrounding the assault and the trial proceedings, but he admitted that no

available test could determine whether her memories were real or not. The court


denied the motion, and the case proceeded to trial.

      At trial, both victims, Umali and Wright, testified that Phongmanivan was

the shooter. A third witness, who videotaped the entire scene, could not identify

Phongmanivan as the shooter but stated that one of the men who carried Umali

to the car was the shooter.     The defense stipulated that Phongmanivan and

another person carried Umali to the car and that the other person who carried her

to the car was not a suspect. Several other witnesses testified that the shooter

was an Asian male with short hair wearing a Seattle Seahawks jersey.

Phongmanivan indicated that Gabriel McBride fit that description.

      McBride and his girl friend, Janelle Dalit, were at the scene of the shooting

and were friends with Roger Wright.           Although Detective Eugene Ramirez

conducted a full interview with Dalit a few days after the shooting, he was unable

to locate or speak with McBride. By the time of trial, Detective Ramirez could no

longer locate Dalit because she moved and changed phone numbers. Originally,

the prosecutor did not expect to call Dalit and McBride as witnesses.

      The day before trial, the prosecutor had contact with Dalit for the first time.

She stated that she did not respond to the prosecution's repeated attempts to

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locate her because she did not want to be involved in the case. The prosecutor

informed Dalit of the defense's planned case strategy to convince her and

McBride to testify.

       On December 7, 2010, Phongmanivan interviewed Dalit and learned that

the prosecutor had met with Dalit and McBride and informed them that the

defense intended to blame McBride for the crime.        Phongmanivan moved to

dismiss based on the prosecutor's violation of a witness exclusion order.

Although the trial court found the prosecutor's conduct inappropriate, it denied

the motion. Instead, the court allowed Phongmanivan to cross-examine Dalit and

McBride on anything that the prosecutor told them.

       Dalit testified that she was with McBride at the time of the shooting, but

she could not identify the shooter.     She also testified that nothing in her

statement to Detective Ramirez a few days after the shooting was any different

from her trial testimony or defense interview.       On cross-examination, Dalit

admitted that she only learned Phongmanivan identified McBride as the shooter

when the prosecutor told her.

       On December 8, 2010, the defense interviewed McBride.             McBride

reported that he first learned about the State's efforts to locate him when Dalit

told him about testifying and discussed her memory of the events with him.

Phongmanivan renewed his motion to dismiss under CrR 8.3(b) for governmental

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NO. 66858-7-1 / 5




misconduct. The court denied the motion, finding insufficient evidence to support

dismissal of the case for prosecutorial misconduct. The court noted that due to

possible Fifth Amendment concerns, the prosecutor was entitled to, if not

ethically required to, inform McBride of Phongmanivan's allegation that McBride

was the perpetrator. The court also ruled that Phongmanivan had not shown any

prejudice.

       The jury convicted Phongmanivan of two counts of first degree assault

with firearm enhancements. The court imposed a standard range sentence of

306 months in prison. Phongmanivan appeals.

                            STANDARD OF REVIEW


       This court reviews a trial court's decision about a witness's competence to

testify for an abuse of discretion.2 It also reviews a trial court's CrR 8.3(b)

decision for an abuse of discretion. A trial court abuses its discretion when its

decision is manifestly unreasonable or is based on untenable grounds.3 "A trial
court's decision is manifestly unreasonable if it 'adopts a view that no reasonable

person would take.'"4 A trial court bases its decision on untenable grounds or




       2 State v. Stanqe, 53 Wn. App. 638, 642, 769 P.2d 873 (1989).
       3 In re Pet, of Duncan. 167 Wn.2d 398, 402, 219 P.3d 666 (2009).
       4 Duncan, 167 Wn.2d at 402-03 (internal quotation marks omitted)
(quoting Maver v. Sto Indus.. Inc.. 156 Wn.2d 677, 684, 132 P.3d 115 (2006)).
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NO. 66858-7-1 / 6




untenable reasons if it applies the wrong legal standard or relies on unsupported

facts.5

                                     ANALYSIS


          Phongmanivan alleges that the trial court erred by finding Umali

competent to testify and by denying his motion to conduct a forensic evaluation

to determine her exact cognitive abilities. A court will hold a witness competent if

the witness understands the nature of the oath and is capable of giving a correct

account ofwhat he or she has seen and heard.6 Washington courts presume the

competency of every witness to testify.7 Any witness not able to receive just

impressions of the facts or to relate them truly is not competent to testify.8 This

prohibition applies "only to those with no comprehension at all, not to those with

merely limited comprehension"9 and to those with an "inability to distinguish
between right and wrong."10 The party challenging the competency of a witness

has the burden of rebutting the presumption.11


          5 Duncan, 167 Wn.2d at 403.
          6State v.Allen, 67 Wn.2d 238, 241, 406 P.2d 950 (1965).
          7 State v. S.J.W.. 170 Wn.2d 92, 100, 239 P.3d 568 (2010); RCW
5.60.020 ("Every person of sound mind and discretion . . . may be a witness in
any action, or proceeding."); CrR 6.12(a) ("Any person may be a witness in any
action or proceeding under these rules except as hereinafter provided or as
provided in the Rules of Evidence.").
       8 RCW 5.60.050.
          9State v. Watkins, 71 Wn. App. 164, 169, 857 P.2d 300 (1993).
          10 State v. Smith. 97 Wn.2d 801, 803, 650 P.2d 201 (1982).
          11 S.J.W.. 170Wn.2dat102.
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NO. 66858-7-1 / 7




       Specifically, Phongmanivan questions Umali's ability to accurately recall

events and report information about the night of the shooting.             The court

addressed these issues at a competency hearing on March 10, 2010.              Umali

testified using a combination of verbal and written responses and by drawing

pictures in response to some questions.         Despite her difficulty communicating,

the court ultimately found that Umali understood the difference between right and

wrong and that she appeared to have some memory of the shooting. The court

held her competent to testify at trial.

       Before trial, Phongmanivan renewed his motion and asked the court to

order a full forensic psychological evaluation of Umali before allowing her to

testify. He acknowledged that the primary purpose of the exam was to determine

if Umali's memories of the shooting were real or whether they had been "fed" to

her by her family and other people involved               in the case.      However,

Phongmanivan's psychology expert conceded that no psychological test could

provide the answer to this question.

       Phongmanivan argues that State v. Mines12 permits the court, in

compelling circumstances, to order a witness to undergo a forensic examination.

He acknowledges that Mines actually held that the trial court did not abuse its




       12 35 Wn. App. 932, 935-36, 671 P.2d 273 (1983).
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NO. 66858-7-1 / 8




discretion when it refused to appoint an expert witness but asserts that the case

recognizes one should be appointed in appropriate circumstances.

      The State agrees the trial court had discretion to require a psychological

examination upon a showing of a compelling reason but contends Phongmanivan

failed to make the required showing. The State also contends Phongmanivan did

not establish that Umali lacked the ability to tell right from wrong or some ability

to observe and recall the events in issue.      It also notes that Phongmanivan

conceded the unavailability of any test to measure his true concern—that Umali's

memory was not real and was created by others. Finally, the State points to the

cross-examination of Umali and the medical experts to show that Phongmanivan

had sufficient opportunity to demonstrate to the jury his challenges to her

testimony.

      The trial court had the opportunity to evaluate Umali's testimony and

demeanor. The court found that "she's making her best attempt to testify from

memory and she has some memories, or at least she states that she has some

memories." The court also noted that how those memories


      [a]re put into evidence is difficult and how the cross examination will
      proceed is also difficult. But that is not the legal issue before the
      court.


            . . . The only issue for me today is whether there's some
       memory she has that she can recount.


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NO. 66858-7-1 / 9




Phongmanivan        presented only   assertions and      not   evidence that Umali

completely lacked the ability to comprehend events. The evidence demonstrated

only that her comprehension was incomplete. On these facts, we cannot say that

the trial court abused its discretion by finding Umali competent to testify and by

refusing to order a full forensic examination.

       Further, the defense received more than ten volumes of Umali's medical

records through discovery.    At trial, Phongmanivan was able to cross-examine

Umali and clearly demonstrate to the jury how she had difficulty processing

information.   He also cross-examined Umali's doctors at length, including her

speech pathologist and several rehabilitation specialists.              Given all the

information presented about Umali's condition during the trial, the jury was in the

best position to gauge her reliability as a witness and, as with any witness, give

her testimony the weight it deserved.

       The trial court did not abuse its discretion by finding Umali competent to

testify without requiring forensic testing, and her testimony did not deny

Phongmanivan a fair trial.

       Phongmanivan next contends that the trial court erred by denying his

motion to dismiss for governmental misconduct under CrR 8.3(b).13 He argues

       13 CrR 8.3(b) states, "The court, in the furtherance of justice, after notice
and hearing, may dismiss any criminal prosecution due to arbitrary action or
governmental misconduct when there has been prejudice to the rights of the
accused which materially affect the accused's right to a fair trial."
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NO. 66858-7-1/10




that the prosecutor violated the witness sequestration order by speaking with two

witnesses about the defense's trial strategy to induce them to testify and that this

violation denied him a fair trial.


       Dismissal under CrR 8.3 is "an extraordinary remedy, one to which a trial

court should turn only as a last resort."14 To support dismissal under CrR 8.3(b),

the defendant must show by a preponderance of evidence both (1) arbitrary

action or misconduct and (2) actual prejudice affecting the defendant's right to a

fair trial.15 While claimed governmental misconduct need not be evil or dishonest

in nature,16 dismissal will be granted only where there is actual prejudice to the

rights of the accused.17 Thus, the State's failure to sequester witnesses does not

require a new trial unless the court's decision to allow the allegedly tainted

testimony resulted in actual prejudice.18          For alleged misconduct to create

prejudice, the acts must materially affect the defendant's right to a fair trial.19 The

mere possibility of prejudice is insufficient.20



       14   State v.Wilson. 149Wn.2d1, 12, 65 P.3d 657 (2003).
       15   State v.Wilson, 108 Wn. App. 774, 777, 31 P.3d 43 (2001).
       16   State v.Michielli, 132 Wn.2d 229, 239, 937 P.2d 587 (1997).
       17   State v.Moen. 150 Wn.2d 221, 226, 76 P.3d 721 (2003).
       18   State v. Adams. 76 Wn.2d 650, 659, 458 P.2d 558 (1969), reversed on
other grounds bv Adams v. Washington. 403 U.S. 947, 91 S. Ct. 2273, 29 L Ed.
2d 855 (1971).
       19 State v. Pena Fuentes. 172 Wn. App. 755, 761, 295 P.3d 252 (2013),
petition for review filed. No. 88422-6 (Wash. Feb. 12, 2013).
       20 State v. Krenik. 156 Wn. App. 314, 320, 231 P.3d 252 (2010).
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NO. 66858-7-1/11




      Assuming, without finding, that the prosecutor's actions were improper, we

find no prejudice.   Phongmanivan contends that we should presume prejudice

based on the prosecutor's knowing violation of the witness sequestration order.

Phongmanivan asks this court to shift the burden to the State to prove the

absence of prejudice. He cites United States v. Ell.21 a Ninth Circuit Court of

Appeals case holding that when a prosecutor violates a witness sequestration

order, the court presumes prejudice, requiring reversal unless the prosecution

proves harmless error by a preponderance of the evidence. His reliance on Ell,

however, is misplaced.   EH addressed the court's refusal to exclude witnesses

pursuant to the Federal Rules of Evidence.        Under Fed. R. Evid. 615, "[a]t a

party's request, the court must order witnesses excluded so that they cannot

hear other witnesses' testimony."     In contrast, Washington trial courts have

discretion whetherto sequester witnesses.22

      Allowing Dalit and McBride to testify did not affect the fairness of

Phongmanivan's trial. When the prosecutor contacted Dalit, no witnesses had

testified, and the defense had not presented its opening statement. While the

prosecutor's contact with McBride occurred after testimony had begun, the

prosecutor limited her statements to the nature of the case and did not discuss

the other witnesses' testimony.      Further, Dalit testified consistently with a

       21 718 F.2d 291, 293-94 (9th Cir. 1983).
       22 ER 615; Adams. 76 Wn.2d at 659.
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NO. 66858-7-1/12




statement she gave the police shortly after the shooting and her defense

interview. She did not identify the shooter, and Phongmanivan defended based

on mistaken identity. Phongmanivan has not shown that the prosecutor's actions

affected any testimony presented to the jury.

       Phongmanivan argues in the alternative that the trial court erred by

allowing Dalit and McBride to testify.     He argues that the weight of Dalit's

testimony was considerably affected by the fact that the prosecutor informed her

of the defense theory and that Dalit was called especially to corroborate

McBride's alibi.


       The remedy for violating a witness exclusionary order is at the trial judge's

discretion.23   Washington recognizes three possible sanctions when a party

violates such an order:      "(1) hold the witness in contempt, (2) allow cross-

examination regarding the violation and/or comments about the witness's actions

during closing argument, or (3) preclude the witness from testifying."24 Several
decisions have upheld a trial court's decision to allow witnesses to testify despite

violating an exclusionary order.25 The trial court provided an appropriate remedy
in this case.      The judge allowed full cross-examination of Dalit and McBride

       23 State v. Skuza. 156 Wn. App. 886, 896, 235 P.3d 842 (2010), review
denied. 170Wn.2d 1021, 245 P.3d 775 (2011).
       24 Skuza. 156 Wn. App. at 896.
       25 See State v. Dixon. 37 Wn. App. 867, 877, 684 P.2d 725 (1984); State
v. Schapiro. 28 Wn. App. 860, 867-68, 626 P.2d 546 (1981); State v. Walker. 19
Wn. App. 881, 883, 578 P.2d 83 (1978).
                                        -12-
NO. 66858-7-1/13




regarding anything that the prosecutor told them about the case. The information

elicited through this cross-examination allowed the jury to question the

prosecutor's and the witnesses' credibility.

       Lastly, Phongmanivan argues that the prosecutor's violation of the

sequestration order and the trial court's subsequent failure to exclude the

testimony rendered the trial so fundamentally unfair as to violate his due process

right under the Fourteenth Amendment.26          Dismissal based on outrageous

conduct requires more than a mere demonstration of flagrant conduct.27 The

level of governmental misconduct must shock the conscience of the court and

the universal sense of fairness.28 The due process clause of the Washington
Constitution does not afford broader protection than that of the Fourteenth

Amendment.29

       In Larson v. Palmateer,30 the Ninth Circuit Court of Appeals held that

failure to exclude a witness does not violate a defendant's due process rights.

Responding to the defendant's claim that the trial court's failure to exclude

witnesses violated his right to due process, the court stated,



       26 Constitutional error may be raised for the first time on appeal. RAP
2.5(a)(3); State v. Johnson. 100 Wn.2d 607, 614, 674 P.2d 145 (1983), overruled
on other grounds bv State v. Bergeron. 105Wn.2d 1, 711 P.2d 1000(1985).
       27 State v. Lively. 130Wn.2d 1,20,921 P.2d 1035(1996).
       28 Lively. 130 Wn.2d at 19.
      29 State v. McCormick. 166Wn.2d 689, 699, 213 P.3d 32 (2009).
      30 515 F.3d 1057, 1065 (9th Cir. 2008).
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NO. 66858-7-1/14



       Neither this court nor the Supreme Court has ever held that the
      failure to exclude witnesses can violate due process. . . . Although
      the Federal Rules of Evidence now require a federal district court to
      exclude witnesses upon the motion of a party, there is no indication
      that this rule has a constitutional basis.[31^
Phongmanivan makes no showing that the prosecutor's contact with Dalit and

McBride adversely affected his trial. As the trial court concluded, the record does

not suggest that Dalit and McBride tailored their testimony to corroborate the

testimony of other witnesses. Rather, their testimonies were limited to the events

of the shooting, not the shooter's identity.    Because the trial court provided an

appropriate remedy for any improper communication between the prosecutor and

these witnesses, no due process violation occurred.

                                   CONCLUSION


       Because the court did not abuse its discretion by denying Phongmanivan's

motion for a forensic evaluation of Umali or his motion to dismiss, we affirm.




                                                       ^-j^ee^e^i.   (—- •

WE CONCUR:




             w .-—S                                    SW/^/9,


       31 Palmateer. 515 F.3d at 1065.
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