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                                                             20mNOV -3 AH 9=07




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION ONE

STATE OF WASHINGTON,                             No. 69707-2-1

                        Respondent,

                                                 PUBLISHED IN PART OPINION

DANIEL JAY PEREZ,

                        Appellant.               FILED: November 3, 2014

      Schindler, J. — Daniel Jay Perez and David Hindal were inmates at the Monroe

Correctional Complex. A jury convicted Perez of attempted second degree murder and

assault in the second degree of Hindal. Perez seeks reversal, arguing the admission of

Hindal's out-of-court testimonial statements violated his Sixth Amendment right to

confrontation. Even if the statements were not testimonial, Perez asserts the court

abused its discretion in admitting the statements as an excited utterance under ER

803(a)(2). Perez also claims the court erred by using a to-convict jury instruction for

murder in the second degree, and the judgment and sentence erroneously refers to the

vacated conviction for assault in the second degree. Viewed objectively, because the

record shows the existence of an ongoing emergency, the initial statements made by

Hindal to the corrections officers were not testimonial and did not violate the Sixth

Amendment. Further, the court did not err in admitting the statements under ER
No. 69707-2-1/2


803(a)(2) or instructing the jury on murder in the second degree. Accordingly, we

affirm. However, because the convictions for attempted second degree murder and

assault in the second degree merged, we remand to amend the judgment and sentence

and the order of commitment to remove any reference to the assault conviction.

                                         FACTS


      In August 2009, Daniel Jay Perez and David Hindal were inmates housed in the

D unit of the Special Offender Unit at the Monroe Correctional Complex. Approximately

30 to 33 inmates are housed in the D unit. The D unit has two "Dayrooms." A control

booth with glass windows is located next to Dayroom 2. At the opposite end of

Dayroom 2 is the inmate laundry room. There are two security surveillance cameras

located in Dayroom 2 but no cameras in the laundry room.

      On the morning of August 14, 2009, Sergeant Derek Walters and Officer Monte

Walker were in the control booth. Officer James Misiano was monitoring the D unit, and

Hindal and Perez were in Dayroom 2.

       Hindal was the "laundry porter" for the D unit. Hindal was authorized to remain in

Dayroom 2 while doing the laundry. At approximately 10:30 a.m., Sergeant Walters

said he saw Hindal sitting in a chair in the entry to the laundry room reading a book.

              Hindal was kind of sitting in the threshold of the [laundry room]
              door, back facing me as I was looking in the dayroom. His eyes
              and his face was in the direction of the washing machine and the
              dryer.
       Q.     His back was to you?
       A.     His back was to me. He was reading a book.[1]

       Meanwhile, Perez was pacing back and forth between the Dayroom 2 window

facing the control booth and the far wall near the laundry room. Between 10:30 a.m.


        Emphasis in original.
No. 69707-2-1/3


and 10:40 a.m., inmates must return to their cells. The officers check each cell

beginning at 10:50 a.m.

         Officer Walker testified that at approximately 10:40 a.m., he opened the door to

Dayroom 2 to let Perez return to his cell located on the second tier. Almost immediately

thereafter, Officer Walker saw Hindal stagger out of the laundry room in obvious

distress. Officer Walker said Hindal was "flapping his hands with something around his

neck. . . . [I]t looked like some type of string or some type of long cord around his

neck. ... He was facing toward the booth, trying to get my attention." Officer Walker

testified that he could not determine "whether it was self-harm or whether something

had been done to him. I just saw that there was an issue with Hindal and he was acting

sporadically, panicking and gasping for air." Officer Walker "immediately called an

emergency code" for the "medical emergency." Sergeant Walters and Officer Misiano

entered Dayroom 2 at 10:42 a.m. Within a few seconds, two other corrections officers

entered the room.

         Officer Misiano said Hindal was "staggering towards us, kind of swaying," his

face was red, there was a "piece of sheet" around his neck, and there were red marks

on his neck. Officer Misiano testified Hindal "[sjeemed to me like he was trying to talk,

but he couldn't get any words out. . . . [H]e was pointing, trying to say something, but it

was just he was gasping and we would just tell him to calm down." Officer Misiano said

that when Hindal could speak, he said," 'Perez,'" and pointed to the second tier jail

cells.

         Sergeant Walters testified that while Hindal continued to try and catch his breath,

he said," 'Should have checked my pulse. Should have checked my pulse.'" Sergeant
No. 69707-2-1/4


Walters and Officer Misiano told Hindal to sit down at one of the tables in Dayroom 2.

       Sergeant Walters removed the rolled up sheet from around Hindal's neck.

Sergeant Walters testified that Hindal had "ligature marks in his neck. They were very

deep," and he also noticed deep ligature marks on Hindal's fingertips.

               It was like the ligature marks on [Hindal's] fingertips. He said he
               tried to pull the rope -- he called it a rope. But he said he was trying
               to do this and at one point he turned and he saw Perez. He was
               fighting and then he said that he acted like he was sleeping. That's
               kind of what I saw.
       Q.      When you say marks on his fingers, are you talking about
               indentations?
      A.       YesJ2]

      At 10:43 a.m., Officer Misiano left Dayroom 2 with the two other corrections

officers. Sergeant Walters remained with Hindal. Approximately 30 seconds later, the

medical response team arrived. Sergeant Walters then contacted Lieutenant Wise to

report Hindal was "allegedly assaulted by Perez." Lieutenant Wise ordered the facility

locked down.


      After the medical team treated Hindal, Sergeant Walters moved him to Dayroom

1 and secured Dayroom 2 as a crime scene. Sergeant Walters then gave Hindal a

pencil and paper and asked him to "write a detailed statement of what had occurred."

      The State charged Perez with attempted murder in the second degree in violation

of RCW 9A.28.020 and RCW 9A.32.050(1 )(a) and assault in the second degree by

strangulation in violation of RCW 9A.36.021(1)(g). Perez entered a plea of not guilty.

The court scheduled a trial date for October 3, 2012.

       In September 2012, Hindal was being held in the King County jail pending trial on

a burglary charge. Sometime in late September, Hindal contacted the deputy


      2 Emphasis in original.
No. 69707-2-1/5


prosecutor to " 'get a better deal.'" When the prosecutor" 'declined to extend any sort

of assistance,'" Hindal stated he was " 'not interested in testifying'" against Perez.

          The court held a hearing to determine whether Hindal would testify at trial.

During the pretrial hearing on October 1, Hindal testified that he would not answer

questions under oath at trial. Instead, Hindal "would ask the jury to acquit Mr. Perez"

because "he's not guilty as far as I'm concerned. I don't consider myself a victim . ..

and I say that there's no crime."3 The court recessed to obtain appointed counsel for

Hindal.


       When the hearing resumed, Hindal testified that he would not testify against

Perez because he suffers from an "obsessive-compulsive disorder" that makes him "feel

that there's an entity that stalks me and will actually bring harm to my family if I do so."

The court ruled Hindal was a material witness and "in contempt of court for willfully

refusing to answer." The court ordered Hindal "held in the Snohomish County jail in

contempt until he agrees to answer."




       3 [PROSECUTOR:] ... [I]f I ask you questions under oath on the stand, are you going to
                           answer them?
       [HINDAL:]            Probably not.
       [PROSECUTOR:]       What does that mean?
       [HINDAL:]           Okay, not.
       [PROSECUTOR:]       Okay. So, I would ask you questions about what happened on -
       [HINDAL:]           And you would probably - the Court would probably find me in
                           contempt, yes.
       [PROSECUTOR:]       So, you're just not going to respond?
       [HINDAL:]           Actually, I would ask the jury to acquit Mr. Perez. I would. I've got a
                           letter that I was trying to get to you guys, but it obviously didn't work.
                           So, I mean, do you really want me here? I mean -
       [PROSECUTOR:]       Okay. You're saying he's not guilty?
       [HINDAL:]           Yes, I'm saying that. Well, I'm saying he's not guilty as far as I'm
                           concerned. I don't consider myself a victim. I mean, if I'm the
                           alleged victim in this case and I say that there's no crime, I mean,
                           the State can go forward with it, but, I mean, isn't it kind of
                           presumptuous for -.
No. 69707-2-1/6


       On October 3, the court held a lengthy pretrial hearing to determine whether the

out-of-court statements Hindal made to Officer Misiano and Sergeant Walters were

admissible. Officer Walker, Officer Misiano, Sergeant Walters, and a medical

emergency response team nurse testified at the pretrial hearing. The State also

introduced into evidence surveillance video from the two security cameras in Dayroom

2.


       Officer Misiano testified that he arrived at Dayroom 2 within 5 to 10 seconds after

hearing the emergency call on the radio. Officer Misiano said Hindal was "staggering

towards us, kind of swaying," with "bloodshot face, eyes real, real red" and "trying to

talk, but he couldn't get any words out. . . . [H]e was gasping."

       Sergeant Walters testified that when he entered Dayroom 2, Hindal "was in

distress," his "eyes were bloodshot and he couldn't really speak, couldn't get anything

out. We were asking him what happened, what's wrong, what's wrong, and he couldn't

really get anything out."

              [Hindal] was in distress. He couldn't speak. He was very red. His
              face was very red. As we approached Hindal, you could see his
              eyes were bloodshot and he couldn't really speak, couldn't get
              anything out. We were asking him what happened, what's wrong,
              what's wrong, and he couldn't really get anything out.
       Q.     Did it appear he was trying to speak?
       A.     He was trying.M

       Sergeant Walters testified that after catching his breath, Hindal said," 'He tried to

kill me. He tried to kill me.'" When Sergeant Walters asked who, Hindal said,

" 'Perez.'"

       Q.     How much of this -- where is [Hindal] positioned during this
              conversation? So, this initial part where he's saying he tried to kill
              me, Perez, is he still standing up and trying to get his breath at that

        Emphasis in original.
No. 69707-2-1/7


                point?
       A.       He is, and then we were able to get him to sit down at one of the
                dayroom tables.151

       Sergeant Walters described the emergency medical response procedure.

Sergeant Walters testified that the initial response focuses on getting medical

assistance and evaluating the situation.

       So we went in and isolate and contain, shut things down, and then you
       want to evaluate and plan. So we're trying to evaluate what it is that we
       had. The initial Phase I response for the quick response team, we were
       requesting R and Ms, which are our phase responders, and medical.

       Sergeant Walters also explained that "[o]nce we found out that we had a possible

assault, we summoned a Phase II response and locked all the units down." Sergeant

Walters testified that a lockdown is ordered because "[w]e don't know the extent and

we're going to need to summon all available resources," and there might be multiple

inmates involved in an assault "[t]hat could still act."

       Nurse Shana Cantoni testified that she responded to Dayroom 2 as part of the

emergency medical team. Cantoni said Hindal had petechiae or redness on his face

and in his eyes and "a line around his neck that looked bloody." Cantoni testified that

one of the other nurses checked Hindal's vital signs and gave him oxygen, "just to make

him feel more comfortable because he was experiencing a lot of anxiety." While the

medical team was treating Hindal, "[h]e was saying that he had been strangled" and that

Perez did it.

       The Dayroom 2 video surveillance shows Perez pacing back and forth between

the window facing the control booth and the far wall near the laundry room entrance. At

10:34 a.m., Perez pulls out a rolled up length of sheet from his waistband. The video


       5 Emphasis in original.
No. 69707-2-1/8


shows Perez hold each end of the sheet in his hands and wrap the length of the sheet

around his wrists. Perez pulls the length of sheet taut between his hands while he

walks into the laundry room. Less than a second later, a book falls onto the floor in the

threshold of the laundry room doorway.

      At 10:40 a.m., Perez walks out of the laundry room. As he walks to exit Dayroom

2, Perez is swinging his arms and his hands are empty. At 10:41 a.m., Hindal staggers

into view and stumbles toward the window facing the control booth, waving his arms

over his head. A rolled up length of sheet is wrapped around his neck.

      At 10:42 a.m., Sergeant Walters and Officer Misiano enter Dayroom 2 and

approach Hindal. Hindal is still waving his arms. Within a few seconds, two additional

officers enter the room. While Hindal sits down at one of the tables in the room, he is

clearly in distress, repeatedly putting his head down on his arms. Sergeant Walters

unwraps the rolled up sheet from Hindal's neck. At 10:43 a.m., Officer Misiano and the

two other corrections officers leave Dayroom 2. Sergeant Walters remains standing

next to Hindal. The medical team and several other corrections officers arrive with a

wheelchair approximately 30 seconds later. As the medical team walks in, Hindal

makes a choking motion with his hands, which he repeats a few seconds later. Hindal

points toward one wall of Dayroom 2. The video ends at 10:45 a.m. as the medical

personnel are treating Hindal.

       The court ruled that the initial out-of-court statements Hindal made to Officer

Misiano and Sergeant Walters were not testimonial. The court found Hindal made the

statements within minutes of the attack and the circumstances objectively established




                                             8
No. 69707-2-1/9


an ongoing emergency.

             Looking at the factors, were the events occurring at the time the
       statement is made. The events were not occurring but very little time had
       elapsed. It appeared to be within one to at most two minutes of Hindal
       walking into the room in a distressed state that the first statement is made.
       These statements begin and go for maybe a couple minutes thereafter,
       however they are regarding a past event. . . .
              The second factor is would a reasonable listener believe the
       information was required to deal with an ongoing emergency, are we
       looking at a bona fide call for help here. Here we have a situation where
       at the moment - it's one thing to look back at this in hindsight and say,
       well, it wasn't very emergent at the time. However, as the guards are
       entering the room, they don't know what's going on. We do now know and
       can look back, but at the moment at that time they've got somebody who's
       gone from fine one minute to appearing to be seriously injured and unable
       to talk, stumbling around with obvious injuries the next minute.
               So they've got injuries, medical state to deal with for which they
       need to know what happened. Secondly, they don't know --1 think we
       have to take into account we are in the special offender unit and they don't
       know if this is self-inflicted or inflicted by another inmate, a guard, or what
       it is. And there is a need to determine who or how it occurred to protect
       potentially guards and other inmates as well as Mr. Hindal under the
       circumstances to figure out how he got into the injured state.

       The court concluded the emergency was particularly acute because "[tjhey've got

the situation where these people are all living together. They need to know if there's -

its not just for Perez getting into Hindal, it's the potential that Perez may be dangerous

and hurt a guard, hurt another inmate and may need to be moved."

      The court ruled that the primary purpose of the initial questions and answers was

to resolve the emergency.

             So I believe that there was a need at that time, maybe not in
      hindsight but at that time not knowing to know more about exactly what
      was going on to figure out if there was an emergency and what needed to
      be done about it. The fact that at that point no one could come in and get
      Hindal because the door was locked is not the only circumstance that
      these officials have to deal with. They've got the situation where these
      people are all living together. They need to know if there's -- it's not just
      for Perez getting into Hindal, it's the potential that Perez may be
      dangerous and hurt a guard, hurt another inmate and may need to be
No. 69707-2-1/10


       moved. And in addition, if Hindal's statement was some bogus statement
       by a mentally ill offender after he's injured himself, there was a need to
       figure that out, to figure out if they needed to keep him safe from himself,
       from a suicide. So they really did have to know a little more than
       somebody pointing and saying "Perez" to deal with the potential
       emergency and the injuries that they were facing.

       The court also concluded the initial questions and answers did not constitute

formal interrogation.

                And finally, there's the formality or informality of the interrogation.
       In that regard, clearly we're not in any kind of formal interrogation. Really
       initially they're just like, what's happened to you, in response to seeing his
       injuries. We're not at a situation where one interrogation person is sitting
       down and asking for an ongoing story. We have a situation where a
       person has made a cry for distress, someone comes up and says what
       happens and then they blurt out what happened. And we have, as you
       can see on the video, a whole bunch of people running all around.
       Nobody seems to be taking down notes, no one is asked to have them
       make a statement. So it's not a formal interrogation, it's more initial cry for
       help, come to the scene, figure out what the emergency is enough to deal
       with it.
              Now, thereafter they move him, segregate him out to a different
      room and give him sheets of paper. And I imagine after that we did have
      formal interrogation, but this is clearly not a formal interrogation at this
      point in the first two to six minutes following Hindal's cry for assistance, or
      I don't know if we want to say cry, waving his arms for assistance.

       The court also ruled the initial statements Hindal made were admissible at trial

under ER 803(a)(2) as an excited utterance.

      I do find that the statements related to a startling event or condition. The
      statements were the speaker's statements about having allegedly been
      assaulted and allegedly having had an attempt against his life by being
      strangled immediately after the events allegedly occurred. This does
      qualify as a startling event and that the injuries are a startling condition.

                  These initial statements occurred while the declarant was still under
      the stress of the excitement caused by the event or condition. And I base
      that on the testimony, but also you can see that in part from the video that
      was put into evidence. These initial statements in the first dayroom, which
      was Dayroom Number 2 is its number on the room, all apparently appear
      to have occurred within about six minutes, right after the alleged
      attempted murder.


                                                10
No. 69707-2-1/11




       A number of witnesses testified at trial, including Officer Walker, Officer Misiano,

Sergeant Walters, and Shana Cantoni. The defense theory at trial was that Hindal

caused his own injuries in an attempt to either harm himself or obtain prescription

medication. The court admitted into evidence photographs of Hindal's injuries and the

surveillance video from the two security cameras in Dayroom 2. The State played the

surveillance video for the jury during the trial and during closing argument.6

       Officer Misiano testified that when Sergeant Walters asked Hindal, "[W]hat's

going on here," Hindal responded, "Perez, Perez." Officer Misiano testified that Hindal

"was gasping for air but he was saying Perez, Perez," and "pointing . . . towards Tier 2."

       Sergeant Walters testified that after he asked Hindal, "[W]hat's wrong, what's

wrong," Hindal said Perez attacked him from behind and tried to kill him. Sergeant

Walters testified, in pertinent part:

               When I entered the dayroom [Hindal] was kind of panicking, he was
               in distress. I was like, what's wrong, what's wrong? He started
               talking, "He tried to kill me." But I noticed that he had a yellow cloth
               that was wrapped around his neck and kind of hanging on him.

       Q.      Was he saying anything to you?
       A.      He was trying to. It took him a little bit to kind of get his breath, and
               he kept saying, "He tried to kill me, he tried to kill me." I'm trying to
               calm him down, and he says, "Perez." I said, "Who tried to kill
               you?" And he said, "Perez."

               He said that [Perez] attacked him from behind. He said that it was
               like a dream. He said he felt a rope go around his neck, and he
               was able to turn and face Perez, and he tried to fight him. He said
               that he tried to pull the rope, he describes it as a rope, from his
               neck, and he said he was throwing punches. And he went into
               talking about how he --1 don't know, he described something like -
               he was rambling on a lot of stuff, there was just a lot of stuff he was



       6 The court also allowed the jurors to play the video during deliberations.

                                                    11
No. 69707-2-1/12


              saying. But he described that he acted like he was dead and he
              didn't check a pulse.
       Q.     Who was he saying didn't check the pulse?
       A.     Perez.


       On cross-examination, Sergeant Walters testified that self-harm is a major prison

infraction and penalties can include being put in segregation or loss of "good time."

       Shana Cantoni testified the "red blotches" on Hindal's cheeks were caused by

the obstruction of blood flow. Cantoni testified that Hindal told her "he had been

strangled by Daniel Perez," and that the marks around his neck "were . .. consistent

with that."


       [W]hen I assessed [Hindal], I saw the mark on his neck and his general
       level of distress and I had inferred that what had happened was that the
       blood flow had been obstructed around his neck and was unable to return
       to his heart and, therefore, had resulted in this phenomena that occurs
       where the blood -- essentially the blood cells leak out of the capillaries and
       leave a splotchy looking rash.

       On cross-examination, Cantoni testified that the redness in Hindal's face and

eyes could have been caused by self-asphyxiation. Cantoni also testified that she

prescribed Valium for Hindal.

       During the defense case, the court admitted into evidence a portion of the

verbatim transcript of Hindal's testimony during the pretrial hearing. Sergeant Ronald

Packwood testified that a medical examination of Perez was conducted and there were

no injuries to his face or body.

       During closing argument, the State relied heavily on the two security surveillance

videos to argue Perez was guilty of attempted murder in the second degree.

       [Perez] had to have the weapon ready as he entered the room, and that of
       course is on the video. . . . I'll direct your attention again to State's [Exhibit]
       4. And we're at 10:39 in the morning and 39 seconds. This is when the
       Defendant is going to attempt his murder. He's started to pull it out of his

                                               12
No. 69707-2-1/13


       waistband. We see it displayed right here, (Indicating.) getting it wrapped
       around his hands so that when he attacks Mr. Hindal from behind, he can
       try to minimize the possibility of Hindal fighting back. Get it around his
       neck fast, pull hard. You saw the photographs. It was serious. He had
       cut through Mr. Hindal's skin with it. And of course right here we see the
       book that Mr. Hindal was reading, so he must have had his back -- and as
       he gets the ligature around his neck, the book flies backwards right into
       the entryway. Very calculated.

       The defense argued that if Hindal admitted to trying to injure himself, "a major

prison infraction," he was "going to be penalized, .. . going to potentially lose good time

and spend longer in prison, . . . going to potentially be locked up in segregation." But if

Hindal claimed he was the victim of an assault, he would "get absolutely no sanctions,"

and could get "perks" such as prescription medications. The defense attorney pointed

to the "minor injuries" suffered by Hindal and the evidence that Perez had no injuries to

his hands or body. The defense attorney also pointed to Hindal's testimony that Perez

was not guilty and he did not consider himself a victim.

       The jury convicted Perez of attempted murder in the second degree and assault

in the second degree. At sentencing, the State agreed the conviction for assault in the

second degree merged with the conviction for attempted murder in the second degree.

The court sentenced Perez to 285 months confinement with 36 months of community

custody for attempted murder in the second degree.

                                            ANALYSIS


Confrontation Clause

       Perez contends the court erred in admitting Hindal's out-of-court statements in

violation of his Sixth Amendment right to confrontation. U.S. Const, amend. VI.7 The


       7 The Sixth Amendment was incorporated and made applicable to the states through the due
process clause of the Fourteenth Amendment. Pointer v. Texas. 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L.
Ed. 2d 923 (1965); U.S. Const, amend. VI; U.S. Const, amend. XIV.

                                                 13
No. 69707-2-1/14


Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy

the right... to be confronted with the witnesses against him." U.S. Const, amend. VI.

The confrontation clause bars "admission of testimonial statements of a witness who did

not appear at trial unless he was unavailable to testify, and the defendant had had a

prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 53-54,

124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). We review alleged violations of the

confrontation clause de novo. State v. Koslowski. 166 Wn.2d 409, 417, 209 P.3d 479

(2009).

      While the Court in Crawford did not provide a "precise articulation" or

comprehensive definition of testimonial hearsay for purposes of the confrontation

clause, the Court defined "testimony" as " '[a] solemn declaration or affirmation made for

the purpose of establishing or proving some fact.'" Crawford, 541 U.S. at 51-52

(quoting 2 N. Webster, An American Dictionary of the English Language (1828)).

The Court held that testimonial hearsay for purposes of the confrontation clause applies

at a minimum to (1) ex parte testimony at a preliminary hearing and (2) "[statements

taken by police officers in the course of interrogations." Crawford, 541 U.S. at 51-52.

       In Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224

(2006), the Court held that where the objective circumstances show "the primary

purpose of the interrogation is to enable police assistance to meet an ongoing

emergency," the statements to police are not testimonial. The Court explained:

       Statements are nontestimonial when made in the course of police
       interrogation under circumstances objectively indicating that the primary
       purpose of the interrogation is to enable police assistance to meet an
       ongoing emergency. They are testimonial when the circumstances
       objectively indicate that there is no such ongoing emergency, and that the


                                            14
No. 69707-2-1/15


        primary purpose of the interrogation is to establish or prove past events
        potentially relevant to later criminal prosecution.

Davis, 547 U.S. at 822.

        In Davis, the Court held the statements made by the victim of domestic violence

during a 911 call in the midst of the attack were not "testimonial." Davis, 547 U.S. at

827-29. The Court concluded the primary purpose of the statements "was to enable

police assistance to meet an ongoing emergency," rather than simply to collect facts to

identify a perpetrator and further a prosecution. Davis, 547 U.S. at 827-29. However,

the Court concluded that after the perpetrator left and the 911 operator continued to

"pose a battery of questions[,]. . . from that point on, [the victim]'s statements were

testimonial." Davis, 547 U.S. at 828-29.

        The Court explained that the existence of an ongoing emergency focuses the

participants on something other than "prov[ing] past events potentially relevant to later

criminal prosecution." Davis, 547 U.S. at 822. An ongoing emergency focuses the

participants on "end[ing] a threatening situation." Davis, 547 U.S. at 832.

        In Michigan v. Brvant,     U.S.       131 S. Ct. 1143, 1150-67, 179 L Ed. 2d 93

(2011), the Supreme Court considered whether the victim's statements to police officers

violated the confrontation clause. In Brvant, police officers found the victim lying on the

ground next to his car at a gas station, mortally shot in the abdomen. The officers

asked the victim what happened and who shot him. The victim identified the defendant

and said the shooting had occurred about 25 minutes earlier. Brvant, 131 S. Ct. at

1150.

        The Court held the primary purpose of the interrogation was to enable law

enforcement to meet an ongoing emergency. Brvant, 131 S. Ct. at 1166. "[T]he

                                             15
No. 69707-2-1/16


existence of an 'ongoing emergency' at the time of an encounter between an individual

and the police is among the most important circumstances informing the 'primary

purpose' of an interrogation." Brvant, 131 S. Ct. at 1157. "[W]hetheran emergency

exists and is ongoing is a highly context-dependent inquiry." Bryant. 131 S. Ct. at 1158.

But the Court notes that the interaction with the police can evolve from " 'an

interrogation to determine the need for emergency assistance'" into testimonial

statements "if a perpetrator is disarmed, surrenders, is apprehended, or as in Davis,

flees with little prospect of posing a threat to the public." Brvant. 131 S. Ct. at 1159

(quoting Davis. 547 U.S. at 828).

        The Court held that in order to determine whether the primary purpose of police

questioning is to enable police assistance to meet on ongoing emergency, a court must

objectively evaluate the circumstances from the perspective of the parties at the time

and "not with the benefit of hindsight." Brvant, 131 S. Ct. at 1156-57.8 "[T]he relevant

inquiry is not the subjective or actual purpose of the individuals involved in a particular

encounter, but rather the purpose that reasonable participants would have had, as

ascertained from the individuals' statements and actions and the circumstances in which

the encounter occurred." Brvant, 131 S. Ct. at 1156.

              An objective analysis of the circumstances of an encounter and the
        statements and actions of the parties to it provides the most accurate
        assessment of the "primary purpose of the interrogation." The
        circumstances in which an encounter occurs—e^., at or near the scene of


        8         The existence of an ongoing emergency must be objectively assessed from the
        perspective of the parties to the interrogation at the time, not with the benefit of hindsight.
        If the information the parties knew at the time of the encounter would lead a reasonable
        person to believe that there was an emergency, even if that belief was later proved
        incorrect, that is sufficient for purposes of the Confrontation Clause. The emergency is
        relevant to the "primary purpose of the interrogation" because of the effect it has on the
        parties' purpose, not because of its actual existence.
Brvant. 131 S. Ct. at 1157 n.8 (quoting Davis, 547 U.S. at 822).

                                                      16
No. 69707-2-1/17



       the crime versus at a police station, during an ongoing emergency or
       afterwards—are clearly matters of objective fact. The statements and
       actions of the parties must also be objectively evaluated.

Brvant. 131 S. Ct. at 1156 (quoting Davis, 547 U.S. at 822).

       Our inquiry is also guided by (1) whether the speaker was speaking about past

events or current ones as they were occurring, requiring police assistance; (2) whether

a reasonable listener would conclude that the speaker was facing an ongoing

emergency; (3) the nature of the information elicited by police; and (4) the formality of

the interrogation. Koslowski. 166 Wn.2d at 418-19 (citing Davis. 547 U.S. at 827).

       Perez asserts the initial statements Hindal made to Sergeant Walters and Officer

Misiano were testimonial because Perez had left Dayroom 2, Hindal was secure, and

the emergency had been resolved. Viewed objectively, the record does not support his

assertion.


       The initial statements Hindal made to Sergeant Walters and Officer Misiano were

related to events that occurred just minutes earlier. Where statements are made "within

minutes of the assault," such statements may properly be considered as

"contemporaneous[ ] with the events described." State v. Ohlson. 162 Wn.2d 1, 17, 168

P.3d 1273 (2007). Further, "it is not inconsistent to speak of past events in conjunction

with an ongoing emergency and, in appropriate circumstances, considering all of the

factors the Court identified [in Davis], the fact that some statements are made with

regard to recent past events does not cast them in testimonial stone." Koslowski, 166

Wn.2dat423n.8.


       As to the second and third factors, Officer Misiano and Sergeant Walters went

into Dayroom 2 in response to a medical emergency. Hindal had a bloody strip of sheet



                                            17
No. 69707-2-1/18


around his neck and was in obvious distress, "flapping his arms," "panicking and

gasping for air." Officer Misiano and Sergeant Walters did not know whether Hindal's

injuries were self-inflicted or inflicted by someone else, and there was an immediate

need to determine what had occurred. Further, the fact that Perez was no longer in

Dayroom 2 did not mean the emergency had been resolved. The record establishes not

only a medical emergency but also concerns for the safety of other inmates and

corrections officers. See Bryant. 131 S. Ct. at 1158 ("An assessment of whether an

emergency that threatens the police and public is ongoing cannot narrowly focus on

whether the threat solely to the first victim has been neutralized because the threat to

the first responders and public may continue."). The nature of what was asked and

answered was necessary to resolve the ongoing emergency and help identify and

assess the threat posed by Perez.

       The record also establishes a lack of formality. The interaction in Dayroom 2

between Officer Misiano, Sergeant Walters, and Hindal lasts approximately three

minutes. The video shows Sergeant Walters and Officer Misiano entering Dayroom 2 at

10:42 a.m., and the video concludes at 10:45 a.m. As Sergeant Walters is asking

Hindal questions and trying to calm him down, corrections officers are coming in and out

of the room and medical personnel arrive to assess Hindal's injuries. It is clear from the

video and the testimony that the circumstances were chaotic and disorganized. See

Brvant, 131 S. Ct. at 1160 (contrasting the lack of formality "in an exposed, public area,

prior to the arrival of emergency medical services, and in a disorganized fashion," with

the "formal station-house interrogation in Crawford").




                                            18
No. 69707-2-1/19


       An objective evaluation of "the circumstances in which the encounter occurs and

the statements and actions of the parties" demonstrates that the primary purpose of the

questioning by Sergeant Walters was to respond to an ongoing medical emergency,

determine whether Hindal injured himself or whether he was attacked by another

person, and assess the risk of harm to other inmates and corrections officers. Brvant,

131 S. Ct. at 1156. The initial statements Hindal made to Officer Misiano and Sergeant

Walters fall squarely under the ongoing emergency exception.

ER 803(a)(2)

       Perez contends that even if Hindal's statements were not testimonial, the court

erred in admitting the statements as an excited utterance under ER 803(a)(2). Perez

argues the record does not show Hindal was under the stress of excitement of a

startling event. We disagree.

      We review a trial court's decision to admit a hearsay statement as an excited

utterance for abuse of discretion. Ohlson, 162 Wn.2d at 7-8. We will not reverse the

trial court's decision "unless we believe that no reasonable judge would have made the

same ruling." State v. Woods. 143 Wn.2d 561, 595-96, 23 P.3d 1046 (2001).

       ER 803(a)(2) provides that a statement is not excluded as hearsay if it is an

excited utterance "related to a startling event or condition made while the declarant was

under the stress of excitement caused by the event or condition."

      The proponent of excited utterance evidence must satisfy three "closely

connected requirements:" (1) a startling event or condition occurred, (2) the declarant

made the statement while under the stress of excitement of the startling event or

condition, and (3) the statement related to the startling event or condition. Woods. 143



                                            19
No. 69707-2-1/20


Wn.2d at 597; State v. Young. 160 Wn.2d 799, 806, 161 P.3d 967 (2007).

       The critical determination is " 'whether the statement was made while the

declarant was still under the influence of the event to the extent that [the] statement

could not be the result of fabrication, intervening actions, or the exercise of choice or

judgment.'" State v. Strauss. 119 Wn.2d 401, 416, 832 P.2d 78 (1992)9 (quoting

Johnston v. Ohls. 76 Wn.2d 398, 406, 457 P.2d 194 (1969)).

       The trial court ruled that when Hindal made the statements "right after the alleged

attempted murder," he was under the stress of excitement of a startling event or

condition.


       [0]n the video you can see that [Hindal is] stumbling around, waiving his
       arms kind of wildly. We have testimony from witnesses that his face was
       really red, his eyes were red, it was a deep red line or mark around the
       neck. There was the alleged attempted murder weapon, a string or cloth
       was still wrapped around the neck. You can see that actually being taken
       off of his neck during the course of-- in the video during the course of this
       five minutes or so they remained in this Dayroom Number 2.
               There's testimony that initially he's trying to speak but he actually
       physically is incapable of speaking, and from inference it's due to the
       injuries that he suffered. He finally is able to get out alive after having
       difficultly speaking, which is either "Perez" or "Perez tried to strangle me,"
       or words to that effect.
              It's not - well, contrary to what some of the testimony is, there isn't
       a long period of time where he's standing up talking and then goes and
       sits down. He initially right when the guards all come in he sits down.
       That's clear from the video. It doesn't appear that we have some
       questioning, a stop and then some more questioning. What it appeared to
       me from the testimony as well as a little bit from the video is he blurts out
       "Perez" and then he starts to blurt out what's just happened to him in
       greater detail.

              So I am finding that these ... are admissible under the excited
       utterance exception to the hearsay rule.

       The court did not abuse its discretion in finding that when Hindal made his initial

statements to Officer Misiano and Sergeant Walters, he was under the stress of a

       9 Alteration in original.

                                             20
No. 69707-2-1/21


startling event. The attempted murder occurred between 10:34 a.m., when Perez

walked into the laundry room, and 10:40 a.m., when Perez walked out of the laundry

room. Less than a minute later, Hindal emerged from the laundry room, signaling for

help and gasping for breath. When Officer Misiano and Sergeant Walters entered

Dayroom 2, Hindal was struggling to breathe and obviously injured. The initial

statements Hindal made while in Dayroom 2 were made while still under the stress of a

startling event. The court did not abuse its discretion in admitting the statements under

ER 803(a)(2).

       Because the remainder of this opinion has no precedential value, the panel has

determined it should not be published in accordance with RCW 2.06.040.

Jury Instructions

       Perez argues the court erred by instructing the jury with a to-convict instruction

for murder in the second degree. Perez contends the to-convict instruction was

misleading, confusing, and diminished the State's burden.

       We review a challenge to a jury instruction de novo, evaluating the jury

instruction "in the context of the instructions as a whole." State v. Bennett. 161 Wn.2d

303, 307, 165 P.3d 1241 (2007). " 'Jury instructions are sufficient when they allow

counsel to argue their theory of the case, are not misleading, and when read as a whole

properly inform the trier of fact of the applicable law.'" Keller v. City of Spokane. 146
Wn.2d 237, 249, 44 P.3d 845 (2002) (quoting Bodin v. City of Stanwood, 130 Wn.2d

726, 732, 927 P.2d 240 (1996)). If a jury instruction correctly states the law, the trial

court's decision to give the instruction will not be disturbed absent an abuse of

discretion. State v. Aguirre, 168 Wn.2d 350, 364, 229 P.3d 669 (2010).



                                             21
No. 69707-2-1/22


       The State proposed a set of jury instructions that complied with Washington

Practice: Washington Pattern Jury Instructions: Criminal (WPIC). "Jury

Instruction" 8 defined the elements of attempted murder in the second degree according

to WPIC 100.02, and Jury Instruction 10 defined the elements of murder in the second

degree according to WPIC 27.02. 11A WPIC 100.02, at 386 (3d ed. 2008); 11 WPIC

27.02, at 377 (3d ed. 2008).

        Jury Instruction 8 states:

              To convict the defendant of the crime of attempted Murder in the
       Second Degree, each of the following elements of the crime must be
       proved beyond a reasonable doubt:
              (1) That on or about the 14th day of August, 2009, the defendant
       did an act that was a substantial step toward the commission of Murder in
       the Second Degree;
              (2) That the act was done with the intent to commit Murder in the
       Second Degree; and
              (3) That the act occurred in [the] State of Washington.
              If you find from the evidence that each of these elements has been
       proved beyond a reasonable doubt, then it will be your duty to return a
       verdict of guilty.
       On the other hand, if, after weighing all the evidence, you have a
       reasonable doubt as to any one of these elements, then it will be your duty
       to return a verdict of not guilty.[10]




        10 HAWPIC 100.02 states:
                                             Attempt—Elements
                To convict the defendant of the crime of attempted (fill in crime), each of the
        following elements of the crime must be proved beyond a reasonable doubt:
                 (1) That on or about (date), the defendant did an act that was a substantial step
                      toward the commission of (fill in crime);
                (2) That the act was done with the intent to commit (fill in crime); and
                (3) That the act occurred in the State of Washington.
                Ifyou find from the evidence that each of these elements has been proved
        beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
                On the other hand, if, after weighing all the evidence, you have a reasonable
        doubt as to any one of these elements, then it will be your duty to return a verdict of not
        guilty.
(Boldface omitted).

                                                      22
No. 69707-2-1/23


        Jury Instruction 10 states:

                  To convict the defendant of the crime of murder in the second
       degree, each of the following elements of the crime must be proved
       beyond a reasonable doubt:
             (1) That on or about the 14th day of August, 2009, the defendant
        acted with intent to cause the death of David Hindal;
               (2) That David Hindal died as a result of defendant's acts; and
               (3) That any of these acts occurred in the State of Washington.
               If you find from the evidence that each of these elements has been
        proved beyond a reasonable doubt, then it will be your duty to return a
        verdict of guilty.
               On the other hand, if, after weighing all of the evidence, you have a
        reasonable doubt as to any one of these elements, then it will be your duty
       to return a verdict of not guilty.[11]

        Perez proposed a modified version for Jury Instruction 10, the definition of

"murder in the second degree." The defense proposed instruction omitted the to-

convict language and the last two paragraphs of the WPIC pattern jury instruction.12

Perez argued the jury might "get confused with regards to which instruction that they're

supposed to be following."


        11 11 WPIC 27.02 states:
                             Murder—Second Degree—Intentional—Elements
                 To convict the defendant of the crime of murder in the second degree, each of
        the following elements of the crime must be proved beyond a reasonable doubt:
                 (1) That on or about (date), the defendant acted with intent to cause the death
                      of (name of person);
                (2) That (name of decedent) died as a result of defendant's acts; and
                (3) That any of these acts occurred in the State of Washington.
                If you find from the evidence that each of these elements has been proved
        beyond a reasonable doubt, then itwill be your duty to return a verdict of guilty.
                On the other hand, if, after weighing all of the evidence, you have a reasonable
        doubt as to any one of these elements, then it will be your duty to return a verdict of not
        guilty.
(Boldface omitted.)
        1211 WPIC 27.02. The proposed jury instruction states:
               The elements of the crime of murder in the second degree that must be proved
        beyond a reasonable doubt are:
                  (1) That on or about the 14th day of August, 2009, the defendant acted with
                      intent to cause the death of David Hindal;
                  (2) That David Hindal died as a result of defendant's acts; and
                  (3) That any of these acts occurred in the State of Washington.

                                                     23
No. 69707-2-1/24


      The court decided to instruct the jury using the State's proposed jury instructions

because "[i]t's what is recommended in the comments to the WPIC." The court also

found it unlikely that Jury Instruction 10 would cause confusion because the instructions

as a whole and the verdict form clearly stated the charged crime was attempted murder

in the second degree, not murder in the second degree. The court also noted there was

no dispute that Hindal survived the attack.

       Considered as a whole, we conclude the jury instructions correctly informed the

jury of the elements of attempted murder in the second degree. The note on use of

WPIC 100.02 specifically states, "If the basic charge is an attempt to commit a crime, a

separate elements instruction must be given delineating the elements of that crime."

11A WPIC 100.02 note on use at 386. The instructions accurately defined "attempt"

and the elements of the attempted offense of murder in the second degree. While Jury

Instruction 10 defining the elements of murder in the second degree included to-convict

language, the instructions make clear the charged crime was attempted murder in the

second degree and the State bears the burden of proving every essential element of the

crime of attempted murder in the second degree beyond a reasonable doubt.

       Perez also argues a jury inquiry shows the instructions were misleading, and

argues the court erred in answering a jury inquiry by failing to provide an additional

definitional instruction. The record does not support his argument. During

deliberations, the jury submitted an inquiry to the court, stating, "Can we have the

definition of murder in the second degree?" The court did not err in directing the jury to

"[r]eferto Instruction #10."




                                              24
No. 69707-2-1/25



Judgment and Sentence

      Perez asserts the trial court violated double jeopardy by referring to the assault

conviction in the judgment and sentence and order of commitment.

      Double jeopardy is a question of law that we review de novo. State v. Womac,

160 Wn.2d 643, 649-50, 160 P.3d 40 (2007). The double jeopardy clause of our

constitution "prohibits imposition of multiple punishments for the same criminal conduct."

State v. Turner, 169 Wn.2d 448, 465-66, 238 P.3d 461 (2010); Wash. Const, art. I, § 9.

The term "punishment" encompasses a conviction without an accompanying sentence.

Turner, 169 Wn.2d at 454-55.

      To assure that double jeopardy proscriptions are carefully observed, a
      judgment and sentence must not include any reference to the vacated
      conviction—nor may an order appended thereto include such a reference;
      similarly no reference should be made to the vacated conviction at
      sentencing.

Turner, 169 Wn.2d at 464-65.

      At sentencing, the State conceded that the "conviction for 2 [degree] Assault

merges with [Perez's] conviction for the greater offense of Attempted 2 [degree] Murder.

Thus, the 2 [degree] Assault conviction does not count as a current offense for scoring

purposes." On appeal, the State relies on State v. Fuller. 169 Wn. App. 797, 282 P.3d

126 (2012), to argue that "the judgment and sentence does not require correction."

Fuller does not support the State's argument.

       In Fuller, the judgment and sentence did not refer to the merged conviction.

Fuller. 169 Wn. App. at 835. By contrast, here, the "FINDINGS" section on page one of

the judgment and sentence state the jury found Perez "guilty" of both crimes, but there

is a line drawn through "Count ll[,] Second Degree Assault," with the notation—


                                            25
No. 69707-2-1/26


"Merged." Likewise, the court notes on page two of the judgment and sentence that

"Counts I and II Merge." The "SENTENCING DATA" section refers to Count II but

crosses out the offender score, standard range, and maximum term information for

Count II, noting, "Merged with Count I." The "SENTENCE AND ORDER" section of the

judgment and sentence also shows the court sentenced Perez only on Count I for

attempted murder in the second degree. Further, the order of commitment attached to

the judgment and sentence states that Perez was convicted on both counts and that

"judgment has been pronounced against him/her that he/she be punished therefore by

imprisonment." We hold the court erred in referring to the conviction of assault in the

second degree in the judgment and sentence and the order of commitment.

      We affirm the conviction for attempted murder in the second degree but remand

to amend the judgment and sentence and the order of commitment to delete any

reference to the merged conviction for assault in the second degree.




                                              9t_ ^ ^IM&&-, ,
WE CONCUR:




                                                             CoiA-
      (^T§-

                                            26
